Category Archives: Zambian Law

On ZIALE: Questions, concerns and the way forward

By Elias Munshya, LLM, MBA, M.Div.

When the Zambia Institute of Advanced Legal Education (ZIALE) released its results two weeks ago, I expressed my concern at the low passing rate. I am not alone in this concern. Several citizens of this great nation are expressing similar concerns: the low passing rate at ZIALE does not make sense. In the last sitting it was a paltry 18 students out of a possible 206 that passed the bar admission course. This represents about 9% pass rate and a failure rate of 91%. I have been asked some questions. I would like to answer them in turn.

  1. Do you want ZIALE to pass all of the students? It is not practically desirable for ZIALE to pass all of its students. But a failure rate of 91% does not make sense either. ZIALE does not have to decide between passing everybody and failing everyone. It has the duty to be fair in its teaching methodologies and expectations. Failing 90 out of every 100 students does not make sense.
  2. What impact if any, does the low calibre of students play in the results at ZIALE? This is perhaps the grand excuse ZIALE is using to justify its high failure rate: student calibre. I agree that some law graduates are of low calibre. But student calibre alone is inadequate to explain a 90% failure rate! ZIALE might be biased against the proliferation of private universities which seem to give law degrees to anyone with a pulse. But ZIALE cannot do indirectly what it cannot do directly. It cannot retaliate against private universities by making it impossible for private university law graduates to pass ZIALE. ZIALE has the duty to provide fair training and education to those students it accepts in its ranks. Some law graduates do not know how to spell or string a sentence together, I do get that. But that would still not explain how 90% of ZIALE students fail.
  3. Do you want ZIALE to lower standards? ZIALE can raise its passing rate and still uphold high professional standards. It is a false choice, to think that if more people pass at ZIALE then legal standards will be lowered. In fact, a high failing rate could be symptomatic of low standards rather than high standards. ZIALE cannot uphold high professional standards by failing nearly all of its students. Let me hasten to mention one more thing. It is not a sign of progress that 51 years after independence we only have 1,500 lawyers in a population of 15 million. Limiting the number of lawyers in a country that needs more lawyers is ridiculous.
  4. How can you criticise ZIALE when you have never been a student there? We daily criticise President Lungu, and yet 99.99% of us have never been president before. You do not need to be part of a public body in order to criticise that public body. As an ordinary citizen of our republic, I have the right and responsibility to hold public bodies to account. Those public bodies include statutory creatures such as ZIALE and the Law Association of Zambia (LAZ). Public bodies are not above the law, common sense or fairness. Public bodies are not beyond criticism. Zambians question the president and the parliament daily, why should ZIALE believe that it cannot be questioned?
  5. Why are you more concerned about lawyers and not medical doctors? It is true that in Zambia, there is a shortage of both medical doctors and lawyers. In fact, Zambia faces a deficit in nearly all professions. I leave the issue of doctor shortage to those who are eminently qualified to tackle the issue than I am. As a legal professional myself, lawyer shortage in Zambia might be more visible to me than other professions. Interestingly though, it appears like the University of Zambia School of Medicine graduates more doctors than does ZIALE. More graduates of the Schools of Medicine actually get the licence to practice medicine than do ZIALE students. The shortage of doctors in Zambia has nothing to do with failure rates at UNZA, but has everything to do with graduates leaving for greener pastures. ZIALE on the other hand just does not pass enough lawyers. If Zambia faces a shortage of professionals it should never be because our schools are not passing enough professions, as is the case with ZIALE.
  6. What do you have to say about other ZIALE programs? Ironically, ZIALE records almost 100% pass rate in the other professional courses it provides. Statutory bodies such as National Pension Scheme Authority (NAPSA) have the authority to prosecute those who do not comply with the NAPSA Act. NAPSA sends its prosecutors to ZIALE for training. Almost all of the prosecutors sent to ZIALE by NAPSA do pass the ZIALE prosecutor’s exams. What is true for NAPSA is also true for other bodies such as ZESCO, ECZ and other bodies. There can only be one explanation for the discrepancy in the pass rates between the bar exam and the other programs provided by ZIALE: when NAPSA sends its prosecutors to ZIALE, it makes it very clear to ZIALE, that the students need to be taught and trained and not tricked and trimmed.
  7. Would you consider enrolling at ZIALE? This question is brewed within the “nchekelako” culture. A culture that seeks to corrupt all those that criticise public bodies. The reason why I am dramatizing ZIALE is not so that I can benefit from it, but rather so that ZIALE serves the public good of Zambians. It is not for me, but for our people. I am grateful for the bar admission process I am currently undergoing in the jurisdiction of Alberta. It is stringent, stressful but quite fulfilling. But my passion still remains for many of our people in Zambia who need legal representation. Currently, the entire provinces of Luapula, Northern, Eastern, Muchinga, and Western provinces do not have a single private lawyer operating there. This is unacceptable. ZIALE plays a huge role in determining who gets to have the certificate to practice. It must be held accountable.
  8. What is the way forward? The legal profession is by nature quite arrogant, egoistic and ironically, very faithful to tradition. Lawyers do not like to change and they never enjoy change. The legal profession subsists on stare decisis (Do what Lord Diplock said in 1960). I do not believe change in Zambia should be left in the hands of lawyers alone. Any changes at ZIALE can only be effected by political and legislative action. Our parliamentarians must be stern on ZIALE so that it effects the changes needed. If ZIALE does not change, our parliament can remove its monopoly and perhaps create several provincial bodies that would train lawyers. I would be very reluctant myself, to propose this as a solution, but if our profession does not change, then politicians will have to intervene. But we have a choice to make to keep the integrity of a self-governing profession.


Suggested citation: Munshya, E. (2015) On ZIALE: Questions, concerns and the way forward. Elias Munshya Blog ( (November 25, 2015)

God and Politics: An analysis of Niebuhr’s typologies in the Zambian context

By Elias Munshya, LL.M., MBA, M.Div.

 On Sunday October 18, 2015 President Edgar Lungu did something that was quite consistent with the practices of many of his predecessors: associate the Zambian state with the Christian religion. From its founding to the present, Zambia has wrestled with the question of what should be the correct relationship between faith and politics in general and between church and state in particular. This article seeks to join that conversation by assessing Helmut Richard Niebuhr’s typologies within the context of a nation, like Zambia, that has proclaimed itself to be a “Christian nation”. Niebuhr (1894 – 1962) was one of the most influential Christian political theologians of the 20th Century. His five typologies are discussed in turn.

In the Christ against Culture typology, Niebuhr saw a radical opposition between Christ and culture. This position holds that it is virtually impossible to be faithful to both Christ and culture and consequently, loyalty to the Christian community implies rejection and repudiation of popular culture, including its politics. Consequent to this idea is the belief that faithfulness to Christ suggests that believers discern Christian principle out of the cultural milieu of the Jewish law and the proceeding Christian culture.

Philosophers Tertullian and Tolstoy are among several that have typified this typology. During Zambia’s independence struggle, Prophetess Alice Mulenga Lenshina’s Lumpa church arose with the Christ against culture worldview. Accused of insurgency and treason, the church was crashed by the government of Prime Minister Kenneth David Kaunda.

The Christ of culture typology is the opposite of the first typology. In this typology Christ is seen to be the saviour of the society and the culture. Christ is the fulfiller of the hopes and aspirations of all cultures. According to this typology, there can be no conflict between the community of faith and the society and its politics. A believer should be welcome in both communities. The teachings of Christ are regarded not as radically opposed to the culture and its politics but rather as restatements of the cultural and societal values.

The late Dr. Kwame Bediako, a Ghanaian theologian is a typical representative of the Christ of culture typology. Another African scholar who taught this typology is Professor John S. Mbiti, who stressed that African Traditional Religions have salvific value and acted as preparation for the gospel of Jesus Christ. Movement for Multiparty Democracy (MMD) leader, Pastor Nevers Mumba’s synthesis of faith and politics seem to derive from this typology.

In the Christ above culture typology Niebuhr characterises it to be somewhat a middle position. It is almost like a fusion of Christianity and the cultural political milieu. In this typology, Christian living is like a pilgrimage. It is living as Christians in the culture tainted with sin and yet what God calls believers to not abandon culture but rather infuse themselves into the culture.

The Christ above culture typology recognizes that the two sets of values, the Christian values on one hand and the cultural milieu on the other. The ethos of the gospel and Christianity cannot just be transferred into the popular culture and vice versa. The two worldviews are important but they are not interchangeable with each other. They can both be used to arrive at a synthesis where Christ is still above culture, but without demonizing culture. Philosopher Thomas Aquinas is a typical example of this typology.

The Christ and culture in paradox typology offers a critical tension between Christ and culture. Culture is an indispensable milieu for preaching the gospel and yet it is not religious by itself. In this typology values of Christianity and Christian living cannot be translated into the imperatives of culture and vice versa. While being exclusively existent, both Christ and culture do work inclusively to the promotion of the reign of God and that is where the paradox lies.

Elias Munshya, LLM, M.A., MBA, M.Div.

Elias Munshya, LLM, M.A., MBA, M.Div.

The irony provided in the Christ and culture in paradox typology can be summarised as follows: first, humanity is both good and evil, both spirit and body, both material and immaterial. Humanity is in revolt against God and in revolt against humanity. This is referred to as homo duplex: as spirit and body, as transcendent person and as empirical individual. Second, God is deus duplex in that while He provides grace and mercy through Jesus Christ, there is wrath and darkness in the world, as epitomized by culture and nature. Third, the world is equally a paradox. It is mundus duplex. It is both created and fallen, both good and corrupt and has the potential for good and for evil. At the same time God can still do good in the evil world and culture. Martin Luther, Reinhold Niebuhr, Emil Brunner, and Karl Barth are some of the forerunners of this typology.

The Christ transforming culture typology is perhaps Niebuhr’s preferred typology of the relationship between Christ and culture. This typology synthesizes the Christ above culture and the Christ and culture in paradox typologies. It does not overtly reject culture and nature. In fact, the conversion and transformation of culture by Christ is the most important motif of this typology. Christ has come to restore those elements in culture that had lost the “glory of God.” Therefore, Christian revelation does not function as an alternative to reason, but rather its proper perspective is in its attempt to redeem both reason and knowledge. After the October 18 prayers, the challenge remains for all Zambians to see how they can help transform the political culture of this nation beyond shouting religious slogans.

H. Richard Niebuhr

H. Richard Niebuhr



Munshya, Elias (2015). God and Politics: An analysis of Niebuhr’s typologies in the Zambian context. Elias Munshya Blog ( (23 October 2015).

The Intersection of Ethics and Law in Zambia’s Corporate Sector

By Elias Munshya, LL.M., MBA, M.Div.

A business corporation on the Copperbelt is alleged to have polluted the Kafue River system in Chingola causing death and untold suffering among the local residents. While these remain allegations at the moment, ethical questions are being asked about what should be appropriate relationship between companies, profits and their ethical obligations to the various stakeholders. In Zambia, just like anywhere else, business corporations have a legal relationship with different stakeholders such as government regulators, customers, and shareholders. Additionally, every business corporation has an ethical relationship, which is not necessarily legal, with many more stakeholders in the contexts in which these businesses operate. As such, every business must balance business law and business ethics if it is to survive in the modern world. The idea that businesses only needed to adhere to legal requirements is now passed. A new era now places a demand upon corporations to incorporate ethical practices into their business.

The goal of business cannot be limited to making money only. There is an expectation and a demand being placed on corporations to endeavor to do business and make money in a way that is sustainable to the environment as well as ethical to other stakeholders in the setting that the businesses find themselves. As such, ethics are becoming that fundamental relationship “between business and the society at large” (Weiss, 2003). There are so many stakeholders that are holding companies both great and small to stringent ethical standards.

Elias Munshya, LLM, M.A., MBA, M.Div.

Elias Munshya, LLM, M.A., MBA, M.Div.

In its widest sense, business ethics “refers to the application of our understanding of what is good and right to that assortment of institutions, technologies, transactions, activities, and pursuits that we call business” (Velasquez, 2002). Nelson’s 2006 definition of business ethics is even more appropriate: Business ethics are expectations – other than business laws – regarding acceptable business conduct. With regard to the relationship between ethics and the law, Halbert & Ingulli (2003) put it very well: “law is what we must do; ethics is what we should do”. It is now not enough that corporations should adhere to laws and regulations, but rather they should adhere to non-legal ethics as well. In fact, the idea that the greatest goal of business is to make money is receiving serious challenge in the modern world.

The conflict or apparent contradiction between ethics and law is an obvious one. Most companies are not sure about how they can satisfy both the law and the ethics in their business operations. Some companies have gone on to satisfy only legal requirements while neglecting ethics. This ethical negligence has had adverse impacts on many companies.

Some alleged events about companies, such as NIKE or KCM, not observing safety or fair practices, while running businesses, has brought the matter of ethics and morality to the forefront. There has arisen an expectation upon companies to be more ethical in the way they do business. For example, NIKE faced criticism in the 1990s when its CEO was getting about 1500 times more in salary and allowances than its workers in factories in the developing world. This disparity in pay between the NIKE CEO and its factory workers in China came to light when a “number of nongovernmental organizations demonstrated during the opening of NIKE’s shop in San Francisco” (Holmes, 2002). The action of these demonstrators shows the ever-expanding number of stakeholders in any given business environment.

NIKE faced more criticism when it relocated production to factories in the developing world. NIKE and many other companies are criticized further because they move production to cheap labour and often to countries whose labour records and ethical behaviour is laxer. As stated by Sadgrove (2005) “companies that relocate production to third world countries are often viewed suspiciously by pressure groups, trade unions and the public”. In 1997, an audit of NIKE suppliers found that Vietnamese workers were working in unsafe conditions. In 1998, the CEO of NIKE assured the stakeholders that he would do all he can to make the company more ethical. By this year 2015, NIKE has done a lot to redeem its image. It has implemented a “series of new policies designed to improve working conditions through the elimination of hazardous chemicals in the production process, researching into international manufacturing processes, and starting a program that independently checked the working conditions of the manufacturing plants” (Holmes, 2002). But the challenge for enhanced ethics still remain.

The question really of how companies, such as NIKE, KCM or Mopani, should be more ethical has hinged on several factors. The first has been the call for companies to self-regulate themselves. This is what has led to many companies making corporate social responsibility as a part of their main activities. The second way has been to push for legislation that compels companies to adhere to certain ethical requirements. The third way has been to find a middle ground between self-regulation and legislation. This third way brings a mix of both ethics and law. The future of corporations in Zambia pivots on the balance between self-regulation and regulatory frameworks in encouraging ethics within the business environment.


Suggested citation: Munshya, E. (2015). The Intersection of Ethics and Law in Zambia’s Corporate Sector. Elias Munshya Blog ( (2 October 2015)

****** This article is adapted from an assignment  I submitted in partial fulfillment of the requirements for a Master of Business Administration degree at the University of Wales – E. Munshya.

Preliminary Ruling Procedure under EU Law and the Lessons for the African Union

By Elias Munshya, LLB (Hons), LLM, M.Div.

The European Court of Justice (ECJ) is the sole interpreter of the treaties and acts of the institutions of the European Union (EU). The African Union (AU) has not adopted a court similar to the role provided by the ECJ to the EU. Nevertheless, if and when the AU establishes such a court, it would be important for the AU court to learn from its EU counterpart and consider how it could better serve the needs of its peoples.

Elias Munshya, LLM, M.A., MBA, M.Div.

Elias Munshya, LLM, M.A., MBA, M.Div.

According to Article 267 of the Treaty on the Functioning of the European Union (TFEU), the “preliminary rulings procedure” refers to the process by which national courts can refer legal questions to the ECJ. The major objective of the preliminary ruling procedure is to provide a uniform interpretation and application of EU law across all the member states. With the EU membership now standing at 28 nations, the preliminary rulings procedure as it stands currently would need serious reform. According to the ECJ’s own statistics the average waiting time for a preliminary ruling is about 20 months. In some cases it can be as long as two years. It is a legal principle that justice delayed is justice denied. With a ruling taking as much as 20 months to be given, this is clearly unacceptable and more injustice can be done by such delays. However, there are several ways through which the preliminary ruling procedure should be reformed so as to avoid these unnecessary delays.

The ECJ should appoint more judges. Currently, there are 28 judges in the General Court as well as the Court of Justice itself. Each member state contributes one judge to both the Court of Justice and the General Court. This number is too small. The ECJ presides over the Union comprising 28 nations with a population of over 500 million people. This makes the EU to be the third largest population after China and India. Just from these population statistics it is clear that 54 judges would not just be enough to resolve all the complex cases that such a population would generate.

Some academics dismiss the significance of having more judges for the ECJ. As stated by Professor Arnull, “the larger the court, the less effective it is at delivering prompt and intellectually judgments”. But the point that these critics miss is the fact that you can never have efficiency without numbers, especially if the workload of the ECJ is actually responsible for the delays in the preliminary ruling procedure. There is just no way out. Reforms aimed at the preliminary ruling procedure should at least address the issue of the fact that the court itself is widely under staffed.

The ECJ can let the General Court take up more cases. Currently, the General Court’s jurisdiction is restricted to competition law and some judicial review cases from the specialized courts. However, if the preliminary rulings waiting time is to be further reduced, it would be necessary that the General Court is granted more authority and more power to take up some cases that would normally be handled by the Court of Justice itself. In fact, the General Court should be given the power to be the court of first instance that rules on all matters and would only refer to the Court of Justice itself matters that it feels are of major legal significance.

Doubts on whether giving more power to the General Court would help ease the preliminary rulings delays have been well pronounced. For example, the reform proposed at the Treaty of Nice in 2001, which sought to give more specific areas to the General Court have still not been adopted. Member states have not agreed on which specific areas to assign to the General Court. Additionally, the question of whether the General Court would help ease the workload of the Court of Justice remains to be answered considering that giving more powers to the General Court may just create another layer of bureaucracy which could overburden the Court of Justice itself.

One of the things that contribute to the delays in the preliminary rulings procedure as noted by the Due Report is the issue of language and the need of translations. The EU must address itself to the issue of language very quickly; otherwise it will be unworkable and expensive to run in the long term. With 28 members and 23 official languages, there is just no way that the system can run efficiently while at the same time expecting that judgments, court procedures and other auxiliary matters be translated in so many languages. The ECJ should restrict itself to two to four languages that would become the lingua franca of the courts in all matters. These languages could be English, German, Spanish and French. At least fewer languages can help the ECJ become more efficient.

Language is a very emotive issue. But the EU must address it very frankly. There is no union that can last without some form of uniform language. The earlier the 28 members come to an agreement the better. Otherwise the success of the EU itself and indeed the preliminary ruling procedure may rise or fall on the issue of language.

While being mindful of the fact that the major objective for the preliminary ruling procedure is the uniform application of Union law, it would be necessary for the courts to have additional judges, who would be schooled in the lingua franca, and who would then serve on some regional divisions of the ECJ. These regional divisions would have the power to rule on preliminary rulings, but would have to refer to the Court of Justice significant legal questions. This would indeed help to reduce the waiting time, since these regional courts would be able to take off some workload from the Court of Justice. With all these lessons from the EU, an AU court should be able to do well learning from what has worked and what has not worked with the EU.


Citation: Munshya, E. (2015) Preliminary Ruling Procedure under EU Law and the Lessons for the African Union. Elias Munshya Blog ( (24 September 2015)

Insanity and Automatism in English and Zambian Criminal Law

By Elias Munshya, LL.M, M.B.A., M.Div.

Under both English and Zambian law, the defence of insanity applies if it is established that at the time of committing a crime, the accused was under the defect of reason from the disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 of England and Wales now provides several options for the judge once the insanity verdict is rendered. These options include a hospital order, a guardianship order, supervision and treatment order and/or an absolute discharge.

According to Lord Denning in the case of Bratty (1963) “automatism” on the other hand, was defined as “an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from a concussion or whilst sleepwalking.”  If successfully pleaded this defence may lead to an acquittal—with the exception of strict liability offences.

Judges have been troubled with how to distinguish between the two defences. In some instances, an accused may plead insanity only to have judges replace it with automatism, and vice versa. Similarities exist between insanity and automatism. First, they both involve some element of an accused not knowing or if he knew not being able to control his actions. Secondly, they both involve a denial of either the mental element (mens rea) or the forbidden act (actus reus). Thirdly, both insanity and automatism involve some defect of the powers of reason. Fourthly, both of them may be caused by a disease of the mind or a “defect of reason”.

“Defect of reason” was in the case of Clarke (1972), an insanity case, defined as a deprivation of the power of reasoning. According to Quick (1973), another insanity case, a disease of the mind should derive from an internal source which may be Epilepsy (Bratty [1963]), or Sleepwalking (Burgess [1991]). Specifically, the case of Bratty demonstrates that the accused may have laboured under a disease of the mind (therefore could plead insanity) leading to a defect of reason while at the same time having the same disease make his hands or feet, do acts which his minds has no control over. This would cause an overlap between insanity and automatism.

Courts in both Zambia and England have come up with some mechanisms of how to distinguish between insanity and automatism. The first difference lies with whether the defect of reason was as a result of an internal cause or an external one. If internal, then that cause should rightly be labelled as a disease of the mind and therefore qualify for the insanity defence. If on the other hand, the cause is external, such as violence, drug overdose, or alcohol, then the correct defence should be automatism (R. v. Cottle, 1958: R. v. Quick, 1973). Internal factors are derived from within the individual that robbed him of the power of reason, whereas the external factors are those forces outside him that lead to a defect of reason. The most troublesome cases in this regard are those involving diabetics. At what point does a case of diabetes become insanity or an automatism? The rule has been that if the defect reason was as a result of some medication such as insulin (external factor) taken by an accused then the right defence would be automatism, but if on the other hand an accused committed the crime when he had not taken any insulin or forgot to take food then his defect of reason is as a result of something internal and as such that should be case of insanity.

Zambian and English courts have used the permanency test as well. If the defect of reason is caused by something transitory then the right defence should be automatism but not insanity. The question becomes whether or not a transitory cause such as a concussion may actually lead to a more permanent disease. It is my submission here that the courts’ need to strictly differentiate between insanity and automatism are insufficient and mostly troublesome.

Another difference between insanity and automatism regards what each defence attempts to deny: mens rea for insanity and actus reus for automatism. An accused who pleads insanity acknowledges that he did not form the mens rea for the crime due to his mental defect. Even if he had done the necessary physical act of the offence, he did not have the mental fault. In pleading the defence of automatism an accused is denying the actus reus, that he did not do the forbidden act by reason of his inability to control his actions due to defect of reason or a disease of the mind. But even this overlaps as well, because automatism while regarded as denying the actus reus, seems in some cases to be a denial of mens rea too.

The consequences of pleading either of these two defences are radically different. If an accused pleads automatism, he would be discharged whereas if it is insanity he risks being labelled as insane and risks a lengthy term in a mental hospital. The only difference in pleading these defences is just whether an accused’s conduct was triggered by either an internal or an external factor. I submit that these two defences in Zambia as well as England, should be abolished and replaced with just one defence incorporating both of them, without the trouble of trying to distinguish between the external and internal factors.


Suggested citation: Munshya, E. (2015). Insanity and Automatism in English and Zambian Criminal Law. Elias Munshya Blog ( (September 17, 2015)

A Theory of Alternative Dispute Resolution in Zambia

By Elias Munshya, MBA, LL.M, M.Div.

Recently, Zambia’s newly installed Chief Justice Irene Mambilima reminded the legal community of the need to use Alternative Dispute Resolution (ADR). According to Slapper & Kelly (2009: 391) ADR is a means of resolving disputes without resorting to court action. It is available in civil cases but not criminal cases. ADR includes Arbitration, Mediation, Conciliation, Ombudsman, and Tribunals. Arbitration is the procedure where parties in dispute refer the issue to a third party for resolution. Mediation, on the other hand, involves a mediator who helps both sides come to an agreement. In Conciliation the conciliator takes a more interventionist role between parties. Ombudsmen are independent office-holders who investigate and rule on complaints from members of the public about maladministration in government, public and private sectors. Tribunals are quasi-legal bodies empowered by parliament or by secondary legislation.

Chief Justice Ireen Mambilima

Chief Justice Ireen Mambilima

In the words of Lord Brooke, ADR is able “to achieve results satisfactory to both parties in many cases which are quite beyond the power of lawyers and courts to achieve”. For Chief Justice Irene Mambilima ADR helps to reduce the backlog in the court system by diverting cases to a more efficient scheme. ADR advocates assert that all disputes are suitable for ADR due to several factors. Law by its nature is frequently complex and ambiguous. Additionally, the court procedures are so tedious. ADR advocates also assert that it has the advantage in that it does not follow all this tedious procedure. For example, there is no requirement on ADR to follow particular processes and procedures without which, a legal claim may be dismissed. The cost of court of action should make ADR more attractive. It costs a lot more to hire lawyers who mostly charge by the hour. In Zambia, the population of 15 million people chases less than a thousand lawyers. This is an abomination that leads to high litigation cost. ADR could become a cost effective way to resolve civil disputes.

The adversarial character of the Zambian court system coupled with the intimidating atmosphere of a court hearing makes the friendlier ADR a better alternative to the courts. In ADR it is the parties who may choose a place that is more conducive for them where they can discuss freely. The court processes and court resolutions take a long time. No one can make the court system move faster. It abides by its own rules and regulations. These rules and regulations may lead to unnecessary adjournments taking more time and costing too much more for the parties. However, with ADR the parties to the dispute can have more control over the time that their dispute may take.

In spite of the obvious advantages ADR has, it should be stressed that ADR should not and cannot replace the courts of law. Courts have an indispensable role in Zambia. This role is both constitutional and historical. To begin discounting the role of the courts by an irrational commitment to ADR would undermine the very objectives of our legal system.

Unlike the case with ADR, legal custodians such as judges, lawyers, prosecutors, and many others manage Zambian courts. This brings the question of why we should in the first place prefer legal custodians to other professions. In modern society, the lines between legal professions and other professions are being diminished by the day. However, it is still necessary for our society to respect the rule of law. People who have studied and specialized in law should superintend the administration of the law in pubic interest. But with the growth of ADR, there is no guarantee that the mediator or the conciliator would be a person who understands or even appreciates the law.

While ADR should be seen as helping reduce the court load, it should also be accountable to the court system. Indeed, one of the advantages that ADR has over the Court systems is its ability to help the court systems reduce its workload. But that should be taken as secondary advantage and not the primary one. The primary one is that ADR is simply there to resolve the caseload of the ordinary courts, and as such it should not subvert the functions of those courts.

Unbridled preference for ADR could lead to unhealthy competition with the courts, and instead of delivering justice these two institutions could be antagonistic with each other. To avoid that, it would be better to make one subservient to the other, and in this regard then, the courts should have the upper hand and the supervisory role. It would be unreasonable to have ADR replace or even be regarded as equal to the courts.

Courts have the power to enforce its rulings more than ADR has. If anything ADR needs the approval of the courts to have any enforcing power, and as such the court still have the vital and indispensable role to play in the resolution of disputes.

Courts still should have and does have the role to play in resolving matters that would set judicial precedents. These are matters that will serve as a guide to resolving any future cases of a similar nature. ADR, unfortunately, does not have such sway. It is this power that makes courts of law to play a more significant role in resolving a wide category of disputes.

Elias Munshya, LLM, M.A., MBA, M.Div.

Elias Munshya, LLM, M.A., MBA, M.Div.

Courts do have an accountability structure to Parliament and to the general public at large whereas ADR does not have such accountability. And in the absence of accountability, ADR has the potential to not only ignore the law but also ignore public policy. Even if the constitutional principle of Zambia is anchored on the Separation of Powers among the Executive, the Legislature, and the Judiciary, this principle still makes each of the organs of government partially accountable to each other. If law is to be accountable to the people of Zambia, then the court system should remain the mainstay of the resolution of most legal disputes. As such, while ADR has an indispensable role to play in helping society and the court system resolve Zambians’ conflicts, it is unsuitable to replace the courts of law.


Suggested Citation:

Munshya, E. (2015). A Theory of Alternative Dispute Resolution in Zambia, Elias Munshya Blog ( (11 September 2015)

“Fairness” In English and Zambian Administrative Law

By Elias Munshya, LLB, LLM, MBA, M.Div.

Elias Munshya, LLM, M.A., MBA, M.Div.

Elias Munshya, LLM, M.A., MBA, M.Div. (Student-at-Law, West End Legal Centre)

Administrative law is that branch of law that governs the scope and activities of government agencies. Government agencies are daily making important decisions that affect Zambian citizens. However, in the discharge of their functions administrative bodies must act with “fairness”. Together with the right to an unbiased judge, the right “to a fair trial” forms part of the elements that constitute the common law rules of natural justice. These rules are a pinnacle of both Zambian and English law. In the Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6 case, it is Lord Scarman who stated that there was an implied duty of fairness attached to all administrative acts. There is an expectation by anyone who is subject of an administrative tribunal to have a fair hearing. Additionally, when it comes to judicial review, a person affected may challenge a decision on the ground of procedural impropriety if his or her right to a fair trial are abrogated.

In the context of England and Wales, fairness has been reinforced by both sections 2 and 3 of Human Rights Act 1998 (HRA), which places a demand upon the courts and all administrative bodies to so construe legislation, as much as is possible, in compliance with the European Convention of Human Rights (ECHR) and the rulings of its institutions. Specifically, Article 6 (1) of the ECHR states that a person is entitled to “a fair and public hearing within a reasonable time by an independent and impartial tribunal”. These same guarantees are provided in the Zambian constitution.

Fairness, however, is not a clear-cut concept in administrative law because applying what is fair in one case might be unfair when applied in another. What is precise in all this, however, is the fact that fairness does depend upon the circumstances of the case and the nature of the tribunal. As such, while there is a settled principle of fairness in administrative law in England, Zambia and elsewhere, the application of this principle must be contextualized to specific cases if fairness is to be achieved.

In the case of R v Home Secretary, ex p Doody [1994], Lord Mustill stated several principles relevant to the concept of fairness in administrative law. First, the standards of fairness in administrative law are not immutable. They can change with time and change of circumstances. Le Suer, Herberg & English (1999) state “fairness is a flexible concept”. Second, according to Lord Mustill “principles of fairness cannot be applied by rote identically in every situation.” Context is important. Third, Lord Mustill opined that a person who is going to be adversely affected by an administrative decision must be given the opportunity to be heard either before the case is heard or after or both. This third principle complies with the 1915 ruling in Local Government Board v Arlidge, in which the House of Lords held that, there is “a minimum requirement that a party to a dispute should be given an adequate opportunity to present his side of the argument.” Fourthly, according to Lord Mustill, for a person to make a worthwhile presentation of his case, he must be given sufficient substance of the case against him. These principles, taken together with ECHR jurisprudence, would help in the discussion of the relevant cases in which fairness has been the subject matter. Some of these cases are explained below.

English courts have held that a violation of natural justice principles including the principle of fairness would not be acceptable. In R v Board of Visitors of Hull Prison, ex p St Germain, the court ruled that the prisoner’s right to fairness had been breached by an administrative agency’s reliance on hearsay evidence without giving the prisoner the opportunity to respond to that evidence. As in this case then the court saw that in those instances where the person’s liberty is at stake, the principles of fairness should be strictly followed. In the case of R v Barnsley Metropolitan Borough Council, ex parte Hook (1976), it was held that the rules of fairness had been breached since the decision was excessive and the trial violated the fairness principle. In R v Army Board of the Defense Council ex p Anderson, the administrative agency had breached the rules of fairness since it had not provided Anderson with copies of the written evidence to enable him to comment and reasonably react to the accusations.

However, notwithstanding the court cases mentioned in the paragraph above, the courts have been able to vary the demand for fairness. The courts to vary the demand for principles of “fairness” have used national security considerations. In the cases of R v Home Secretary, ex p Hosenball [1977] and in the case of R v Home Secretary, ex p Cheblak [1991], national security considerations were used to dispense with the stricter need for natural justice. Additionally, in the case of Secretary of State for the Home Department v. AF (2009), the Court of Appeal was willing to allow for the national security consideration in varying the application of the principle of fairness in administrative law, but nevertheless called upon the trial judge to allow the special advocates to have access to the information against the appellants. Here the court was attempting to balance the need for natural justice on one hand and national security considerations on the other.

Courts have varied what constitutes a fair hearing if the subject matter being adjudicated involves the welfare of children. As such, in the case of Re K (infants) [1965], a case involving infants, the courts varied the elements of fairness by not availing all the facts to all the parties of the case. Additionally, in the cases of R (West) v Parole Board [2005] and R (Roberts) v Parole Board [2005], the House of Lords held that in some circumstances the general principles of fairness could be overlooked. These cases involved some prisoners who demanded that the information used in arriving at decisions that adversely affected them should be disclosed to them. In R v Commissioner for Racial Equality, ex p Cottrell & Rothon, it was held that even if cross-examination was not permitted and witnesses did not attend, there was no breach of the rules of fairness. Again the principle of fairness was not followed in this case.

In view of the case law, the present state of administrative law is that fairness still remains an integral part of the justice system. Administrative bodies may deviate from the fairness principle, if it would be in the interest of justice to do so. Even then, parties affected by the administrative body’s decision should be given sufficient information and opportunity to offer their side of the story. This is important for the development of Zambia’s constitutional and administrative law development.


Suggested Citation:

Munshya, E (2015). Fairness In English and Zambian Administrative Law. Elias Munshya Blog ( (Sep 3, 2015)