2 LAW IN ZAMBIA law. The facts of the 2012 case of one Ms. Kay Figo and her lover Mr. Van are very well defined. It will particularly tackle Al-Bakri’s description and view of Ghana, specifically the land its people and the culture. Local courts mainly administer customary law, especially cases relating to marriage, property, and inheritance. Common law is administered by several high courts, which have authority to hear criminal and civil cases and appeals from lower courts. The system confers freehold granted by the colonial government in exchange for political co-operation under the 1900 Buganda Agreement. By E. Munshya, LLB (Hons), M.Div. rescission See PRACTICE AND PROCEDURE (Rescission of judgment). Ethnic nationalities in many parts of the world have a rich heritage which predates the colonization era. The social settings in which Africans interact have changed over time. "Customary law" refers to the customary laws of the various ethnic groups in Zambia and has not been codified (ibid., n3). The pressure created on customary marriage in the light of continuous social changes and inter-marriages can no longer be ignored. Customary law See CUSTOMARY LAW (Family law). To these courts, the Received English Law was a question of fact which need not be proved formally. Customary Law and Received Law in Zambia Essay, Introduction. 008/2015) [2017] ZMSC 84 (31 August 2017); Executor/Administrator of deceased's estate, Revocation of appointed administrator of estate of deceased, failure by person exercising public authority to exercise powers, limited grounds on which court may interfere with such decision. This assignment is meant to give an understanding of the terms primary and secondary sources of History. Right to property protection against deprivation of property without fair compensation, appointment of members of board by relevant Minister, Corporation's property not State property, limits on Minister's discretion as to who may be appointed, when may be regarded as an organ of the State, Arbitration clause in contract See ARBITRATION (Arbitration clause), vicarious liability for breach of contract, purpose of award of damages (Breach of contract), election by innocent party to terminate or abide by contract, rights accrued before the date of termination, when need not be accepted as constituting entire contract between parties, when clause may relieve party of liability for negligence, essential requirements (Formation of contract), mental capacity of contracting party (Formation of contract), agreement between parties involving a contravention of Exchange Control, agreement to pay foreign currency for item purchased in Zimbabwe, agreement understating purchase price so as to avoid capital gains tax and, contract illegal for want of compliance with statutory formalities, contravention of Estate Agents Act [Chapter 27:05], impossibility when extinguishes obligations under contract, supervening impossibility alleged by non-performing party, whether contract one of hire or for services, Right of first refusal or pre-emption See SALE (Option), renunciation of exceptions non causa debiti, non numeratae pecuniae and errore calculi, contract made in breach of statutory prohibition, contract providing that loan be repaid in foreign currency, justus error on part of party to contract, Costs incurred before commencement of proceedings, exceptional measure for cases involving neglect or impropriety, may be ordered for failure to advise clients correctl, practitioner accepting appointment as executor dative, practitioner advising client to disobey court order, practitioner making unsubstantiated allegations of impropriety against another officer of court, Filing of voluminous and unnecessary documents in a court application, dishonest conduct and behaviour by applicant, general behaviour of litigants throughout the litigation completely unjustified, lack of bona fides and deplorable conduct, party to civil dispute wrongfully having recourse to criminal law, duty to obey order and seek redress afterwards, need to show that person knew of court order, party allegedly in contempt approaching court for relief, requirement that applicant purge its contempt before approaching court for relief, jurisdiction of the High Court in labour matters, Juvenile court See also COURT (Children’s court), Labour Court See EMPLOYMENT (Labour Court), Precedent See PRACTICE AND PROCEDURE (Stare decisis), Vexatious proceedings See PRACTICE AND PROCEDURE (Abuse of process), Assault with intent to do grievous bodily harm, Unlawful entry into premises followed by theft of property therefrom, CRIMINAL LAW (Other Offences Under Criminal Law Code), Being found in possession of goods in regard to which there is a reasonable suspicion that they were stolen, CRIMINAL LAW STATUTORY OFFENCES (Other than offences under Criminal Law Code), Copyright and Neighbouring Rights Act [Chapter 26:05], Criminal Law Amendment Act [Chapter 9:05], Law and Order (Maintenance) Act [Chapter 11:07], Miscellaneous Offences Act [Chapter 9:15], Prevention of Corruption Act [Chapter 9:16], Public Order and Security Act [Chapter 11:17], accused appearing in court after High Court order issued, exceptions, provisos and exemptions (charge), Indictment See CRIMINAL PROCEDURE (Charge), Insanity See CRIMINAL PROCEDURE (Verdict – special verdict), Postponement See CRIMINAL PROCEDURE (Remand), Sentence See CRIMINAL PROCEDURE SENTENCE General Principles, Specification of person suspected of corruption offences, special verdict on grounds of accused’s insanity, CRIMINAL PROCEDURE (SENTENCE) Common Law Offences, Crimes of dishonesty unaccompanied by violence (Sentence; common law), extenuating circumstances in murder sentencing, infanticide See CRIMINAL PROCEDURE (SENTENCE) (Statutory offences – infanticide), Receiving stolen property knowing it to have been stolen v, Stock theft See CRIMINAL PROCEDURE (SENTENCE) (Statutory offences – stock theft), CRIMINAL PROCEDURE (SENTENCE) General Principles, Back-dating of prison sentence to date of convicted person’s arrest, Matters which court may take into account (Sentence), CRIMINAL PROCEDURE (SENTENCE) Offences Under Criminal Law Code, Crimes of dishonesty unaccompanied by violence (Sentence; Code), Unlawful entry and theft (Sentence; Code), CRIMINAL PROCEDURE (SENTENCE) Statutory offences, Control of Goods (Price Control) Regulations, 2001 (Sentence), Drugs and Allied Substances Control Act [Chapter 320 of 1974] (Sentence), Penalty provision in statute – effect (Sentence; Statutory), Precious Stones Act [Chapter 21:06] (Sentence), Prevention of Corruption Act [Chapter 9:16] (Sentence), Public Order and Security Act [Chapter 11:17] (Sentence), Sexual Offences Act [Chapter 9:21] (Sentence), distribution of matrimonial estate (CUSTOMARY LAW), matter capable of resolution by either general law or customary law, no agreement between parties that it should apply, wife’s entitlement to division of estate (CUSTOMARY LAW), approach to be followed in magistrates courts, bigamous marriage, effects of (Family law -CUSTOMARY LAW), customary marriage followed by civil marriage, effect - rights of father of child of customary law marriage, entitlement to share of matrimonial (CUSTOMARY LAW), formalities required in customary law marriage, husband and wife (Family law -CUSTOMARY LAW), testing validity of customary law marriage, husband marrying a second wife under civil law while first marriage subsisted. 29 For example, in one case the local court awarded the custody of the children to their mother, a Kunda, in accordance with her customary law (according to Kunda customary law the mother has custody where no prelobolo has been paid) and the father was ordered to pay K200 by way of maintenance. of Zambia, however, may alienate any land in the customary area if he takes the local customary law on land tenure into consideration and if he consults the chief and the local authority in the area 141/2014) [2018] ZMSC 4 (4 January 2018); MARRIAGE See CUSTOMARY LAW (Marriage) and FAMILY LAW (Husband and wife - marriage). Frivolous and vexatious See PRACTICE AND PROCEDURE (Abuse of process). Restraining a party from disposing of assets of a marriage, where date specified, interest runs from that, whether interest begins to run again from date of litis contestatio, rate of interest laid down in Money Lending and Rates of Interest Act [Chapter 14:14], rate of interest not same as rate under Prescribed Rate of Interest Act [Chapter 8:10], rate of interest when debt expressed in foreign currency, stipulated rate of interest in excess of rate laid down in Money Lending and Rates of Interest Act [Chapter 14:14], INTERLOCUTORY ORDER See APPEAL (Interlocutory order), International human rights instruments signed, effect on domestic law of international human rights instruments, use of international human rights instruments to resolve ambiguity in domestic legislation and to ensure equal treatment, whether international human rights instruments are part of the law, international organisation granted immunity under Privileges and Immunities Act [Chapter 3:03, incorporation of treaties into domestic law, requirement to act in accordance with human rights, democracy and the rule of law, Tribunal required to develop its own jurisprudence, having regard to applicable treaties, general principles and rules of public international law, JOINDER OF PARTIES See PRACTICE AND PROCEDURE (Joinder), JUDGMENT See CRIMINAL PROCEDURE (Trial - judgment) and PRACTICE AND PROCEDURE (Judgment), acquisition notice issued before coming into effect of constitutional amendment No 17, allocation of land appropriated from original owner for resettlement, application to Administrative Court to confirm acquisition, holder of offer letter in respect of land, occupation by former owner of farm or any part thereof, buyer having no right to transfer of land, Commercial Premises (Rent) Regulations 1983. The local courts'justices are appointed by theJudicial Service Commission from a list of names put forward by the local chief, and in making an appointment the Commission generally relies on the advice of the Provincial the history of the common law in Zambia, to the question o lawf th.e Hithert rule ofo there have been several books on various economic, historical and sociological aspects of Zambia but there is however a dearth of legal literature. 2.1 ZAMBIAN LAW The Constitution: At the time of TGCC program design, Zambia’s 1991 Constitution was the 2. customary law is often discriminatory in such areas as bride price, ZAMBIA L.J. WRONGFUL ARREST See DAMAGES (Delictual – unlawful arrest and imprisonment), WRONGFUL DISMISSAL See EMPLOYMENT (Wrongful dismissal). Kongwa v Kongwa (Appeal No. Customary marriages fall under the Local Court Act, and can be dissolved by the Local Courts. 14 of 2016. 90/2016, SCZ/8/214/2015) [2019] ZMSC 11 (11 March 2019); Phillip Moyo v Siita and Others (Appeal No. 207/2013) [2017] ZMSC 134 (12 October 2017); Nyirenda v Nyirenda (Appeal No. A great majority of Zambian people confine their behaviours in accordance to customary law which has a great impact in the area. In many African countries including Zambia, The legal system includes the influence of not only traditional or customary law but also legal systems adopted during colonialism. Customary law is the indigenous law of the various ethnic groups of Africa. DEFAULT JUDGMENT See PRACTICE AND PROCEDURE (Default judgment), extent of act violating dignity (Actio injuriarum), extent of invasion of privacy (Actio injuriarum), voluntary assumption of risk by plaintiff, DIVORCE See FAMILY LAW (Husband and wife - divorce), Domicile of origin and domicile of choice (distinction), donation from one spouse to another (when proper), Act for payment of salary in lieu of notice, Appeal against determination of disciplinary committee under disciplinary code, disciplinary proceedings against employee, injuries sustained in course of employment, interest to employer (what must be shown), suspension of employee See EMPLOYMENT (Suspension), Industrial and Labour Relations Act of Zambia. The main thrust of the law governing the operation of the Local Courts, contained in Chapter 29 o the Laws of Zambia, is the administration of customary law. “Customary law is the indigenous law of the various ethnic groups of Africa.”1 It is the law derived from traditional practice that has become a part of the accepted and expected conduct in a community is accepted as a legal requirement. These institutions are today commonly referred to as traditional institutions, which are part of the deep-rooted and rich cultural heritage of those ethnic groups. HUSBAND AND WIFE See FAMILY LAW (Husband and wife). Zambia has a dual legal system, and although statutory law takes precedence over customary law, the fact that many people live in rural and traditional settings has given customary law primacy in large parts of the country. It can be safely asserted that Local Courts are the clearing grounds for simple torts, contracts, … INTRODUCTION The pre-colonial law in Zambia was essentially customary in character, deriving its sources in the tribal practices and customs of the people. Juvenile court See COURT (Juvenile court). The present study does not attempt to define “customary law”, but some general comments on its character may be helpful. 17. It is not sure whom it is written by, because the author only wrote down his initials (A.Z. Statutory Marriage under customary law, marriages are contracted according to customs of the contracting parties. In addressing custom as a source of law within the civil law tradition, John Henry Merryman notes that, though the attention it is given in scholarly works is great, its importance is "slight and decreasing". Reception of english law and its interaction with African customary law. There is no minimum age of consent to marry under Zambian customary law as current customary practice allows any girl who attains puberty to get married. According to the Ushi customary law which ought to have been invoked at the High Court level, the appellant was entitled to a reasonable share in property acquired during the subsistence of the marriage. Customary law potentially has application in the operation of IP law on such matters as the legal identity of communities as such, ownership or inheritance of rights, equitable interests in an IP right, and a continuing right to use material covered by an IP right. AS WE all know, customary law governs the majority of people living in Zambia today. The Mailo Land Tenure, Land held under mailo tenure is many confined to the Central region of Uganda. 1 (1974); ANTONY ALLOTT, NEW ESSAYS IN AFRICAN LAW 21-27 (1970) (noting statutory provisions based on common law in numerous countries). Additionally, the law applicable both at the High Court and in this court in divorce … Customary law is the ambiguous expression in which are hidden many legal claims. Kongwa v Kongwa (Appeal No. The purpose of this eassy is to discuss the interaction of African customary law and received law and its implication for the Zambian Legal system. duty to disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence, Bank allowing customer to draw against uncleared effects, Party not blamed in any way by judgment (BILL OF COSTS), Procedure and practice of the High Court in enforcing the constitutional bill of rights, BILLS OF EXCHANGE AND NEGOTIABLE INSTRUMENTS, BIRTHS AND DEATHS See also FAMILY LAW (Child birth registration), Matters exclusively ecumenical or ecclesiastical in nature, CITIZENSHIP See also CONSTITUTIONAL LAW (Citizenship), CIVIL PROCEDURE See PRACTICE AND PROCEDURE, Proceedings by and against a close corporation, Administrative justice (See Constitutional law — Fundamental rights — Administrative justice), Attorney-General (Constitutional Law) See also CRIMINAL PROCEDURE. It is reflected in the processes of the civil law jurisdictions, where there is more reliance on case and textual preceden that n is often recognized by commo lanw lawyers.2 It is perhaps also the most significant ingredient of most of the customary law systems Zambia’s judicial system is based on English common law and customary law. Zambia has dual legal systems of customary law and statutory law that operate side by side and govern matters relating to land, property, contracts and personal relations such as marriage, divorce, and succession (Zambia Law Journal 1988, n1). Bizarrely, payment of dowry is an integral part of customary marriages. distinctive feature of Zambia’s legal system is its duality, comprising general or common law and customary or traditional law. The facts of the 2012 case of one Ms. Kay Figo and her lover Mr. Van are very well defined. Land in the areas occupied by the indigenes has largely been communal or family owned. 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