The Dilemma of Local Courts in Zambia
or Deliberate Customary Law Marginalisation?
An Afronet Report 1998
Judicial Sector Administering Customary Law
Of the five rungs of the judicial power in Zambia, comprising the Supreme Court, the High Court, the Industrial Relations Court, the Subordinate Courts and the Local Courts, it is the latter which play an important part in the settlement of disputes of the majority of the population. A democratic society is rule based. Conflicts are resolved in a peaceful manner. Above all, the parties to a dispute must have faith in the institution created for fair arbitration. Legitimacy is a clear test.
This survey demonstrates the dilemma of the Local Courts in Zambia. Customary law itself remains in a state of flux. The degree of neglect by the government of the infrastructure of the Local Courts is disappointing. The much talked about autonomy of the judicature remains a myth. Concentration of resources and decision making is still a preserve of the central administration in Lusaka. There is a total absence of moral and material incentives for the judicial and support staff at the Local Court level.
In addition, the legal foundation under which customary law plays has elements of colonial continuity which either in essence or in terms of operation, are in stark conflict with constitutional provisions and the expected minimum international standards for a working judicial order.
There is a disproportionate gender imbalance in the staffing position of the courts and very little evidence to suggest amelioration of the problem.
The crisis of the Local Courts is a reflection of the crisis of the judiciary as a whole and is at the same time a sad commentary of the degree of decay and neglect of public institutions which is one distinct hallmark of the Third Republic. There is no doubt that the genesis of this decay began in the Second Republic.
The decline and marginalisation is consistent with the misplaced priorities of the Chiluba administration as well as the failure of this government to de - concentrate and decentralize the operations of public institutions. Clearly, a highly centralized state system cannot effectively design institutions which reflect the needs of the grassroots.
OBJECTIVES AND METHODOLOGY OF THE STUDY
1.1 Objective of the Research
The Inter-African Network for Human Rights and Development (Afronet) has launched a programme that examines in detail all the main organs of democracy. The present study focuses on the judiciary.
The local courts were singled out for study for a number of important reasons. Firstly, the original thrust of the local courts was customary law. No clear definition of customary law has been developed by the courts nor has there been any systematic development of this subject. There has been a conflict between the demands of customary law on the one hand and the imperatives of human rights, on the other hand. Customary law tends to be insensitive to gender equity. Modern constitutional and international law instruments emphasize the rights and equality of all persons irrespective of gender. How this contradiction is handled by the local courts is of great interest to Afronet.
Secondly, the local courts are renown for their quick dispensation of justice. This has a positive as well as a negative connotation. A lot of good things can be said that justice delayed is justice denied. Yet on the other hand, fast food justice currently dispensed in the local courts leave many consumers troubled.
Thirdly, one sure test of the effectiveness of a democratic society is the manner in which the grassroots have access to public institutions.
Fourthly, the local courts provide a valuable guide on the independence of the judiciary. The judicial officers should not only be independent from the manipulation of the executive branch but should be sufficiently secure in material needs and resources so as not to fall victim to the forces of corruption.
It is the view of Afronet that the concept of an independent judiciary must be seen from a holistic viewpoint. Therefore, the local courts are a microscopic reflection of the entire judicial branch.
The objective of this study are set out at Appendix 1
The research methodology was largely dictated by the set goals of this study. Afronet wishes to see the ultimate transformation of the legal system along democratic lines where the users of the court system are confident and assured of the respect of their human rights. Thus this research is not an academic exercise. It was dictated by Afronet's advocacy work.
The need to expose what goes on in the local courts meant a bias towards primary sources. Detailed interviews were conducted with the local court justices and their support staff.
This was followed by interviews with the supervisors of the local court justices, namely, the local officers, the provincial local court officers and the magistrates. Local court cases were studied.
But in order to balance and check the information on the ground, it was found necessary to take into account the views of the consumers of the local courts justice system. The views and comments of members of the local community, school teachers and college lecturers were considered.
The sample composition for the research is representative of the urban, semi urban and rural composition of the Zambian in which the local courts operate. The survey was conducted at the following places:
THE ADVANTAGES OF THE LOCAL COURTS IN THE ADMINISTRATION OF JUSTICE
2.1 The Scope of the Local Courts.
The main thrust of the law governing the operation of the Local Courts, contained in Chapter 29 of the Laws of Zambia, is the administration of customary law. In reality, the Local Court is the focal point of varied societal claims. Customary law is the ambiguous expression in which are hidden many legal claims.
It can be safely asserted that Local Courts are the clearing grounds for simple torts, contracts, and petty crimes. But the main workload of the courts is the law relating to non-statutory marriages. Divorce, reconciliation, custody of children, payment of malobolo or lobola, pregnancy suits, compensation for adultery, elopement and devolution of the property of persons who die without a will. These are areas which affect the legal rights of the majority of the population. The effective handling of these disputes and their fair and just resolution assure stability in the community.
One test of a working democracy in part lies in the vibrancy of institutions which deliver services to local communities.
2.2 The Elusive Character of Customary Law
The backbone of the Local Courts is the administration of African customary law. This approach has a bearing on the qualifications of Local Court justices. The justices of the Local Courts are all black Zambians and predominantly male and past middle age.
In one court, the justices asserted that the justices of the Local courts were usually over 50 years. In their view, young persons of under 50 could not understand the nature of customary law and its complexities. The Local Court justices felt offended that magistrate courts had the power to upset their judgements on appeal. They felt that it was unreasonable for persons who had no skills in customary law to be the final arbiters in that area.
But when the justices were asked to define customary law, it proved a difficult task. Most of them equated customary law with marriage and rituals. They all admitted that they had no training in principles of customary law. The majority insists that customary law cannot be a subject of formal legal education.
Nevertheless, the justices asserted that they always take into account the tribal practices of the litigants. It was further pointed out that in matters of great doubt adjournments are always made to allow for traditional experts presumably chiefs or village indunas) to present their opinion. No concrete cases were presented to illustrate the assertion.
On the other hand, observations of actual cases and a perusal of case records, tend to show that the tribe of parties, in the majority of cases other than the claim of malobolo on divorce, is of no consequence.
It was our conclusion that in the urban areas, particularly in Lusaka and Kabwe, customary law is increasingly becoming a myth. The true picture that emerges is that the Local Courts have become institutions for resolving community disputes. The guiding principle in these cases is simple logic and common sense.
2.3 Perceived Advantages of the Local Courts by the Consumers
The consumers of the Local Court justice system, for a number of reasons, attach a great deal of respect to these courts. Among the notable considerations the people attach to the courts is the simplicity of their procedure and easy access. Unlike, the higher courts, in a Local Court it is not uncommon for a litigant to appear for trial and have a verdict on the same day. This is virtually impossible in the other courts. The court justices conduct their proceedings in local languages. The language of the rest of the courts is English. The consumers of the Local Courts justice system are less likely to be alienated.
There were others who felt that the local court justices resented the use of English in their courts. Further, that when one replied in English it was a sign of lack of respect and could land one with a charge of contempt of court. There are some courts where the atmosphere was intimidating and did not afford a litigant to express his views freely. The calibre, qualifications and past experiences of the presiding justice may lessen or remove the feeling of intimidation in the court room.
Zambia has achieved notable results in placing a number of qualified women as adjudicators. There are two women on the Supreme Court bench; two women on the High Court bench and one woman in the Industrial Relations Court. Women compete reasonably well with men in the subordinate court when one takes into account the unequal representation of female advocates when compared to males.
In contrast, the local courts are biased in favour of male justices. A number of factors contribute to this. Firstly, there are no standard qualifications laid down for the local court justices. Secondly, these courts still carry the ancient stigma of being traditional courts where the male gender takes the centre stage. Thirdly, in rural areas, whenever a vacancy occurs for a court justice, the Local Court Officer requests the area chiefs to submit three names for consideration by the Judicial Service Commission. We discovered that the chiefs were inclined towards male candidates.
The trend on the ground appears to favour persons who have distinguished themselves in the public service. At least, for the courts in urban areas, a good proportion of the justices are retired civil servants. They bring important innovation in the administration of community justice derived in part from their practical understanding of the workings of a post-traditional society. These justices are often fluent in more than four local languages.
It was further observed that in terms of formal education, there is no uniformity. There are still found the old Standard VI certificate holders, Form II and GCE O level justices.
The different working experiences and varied formal qualifications of the justices perhaps contributes in part to their failed attempts for better remuneration. The local court is a galaxy holding the average side by side with great minds.
2.5 Weaknesses of the Local Courts Act
There are two main areas of weaknesses of the Local Courts. There is firstly the administrative flaws arising from the powers granted to the Minister of Legal Affairs and the supervisory role of the Local Court Officer.
The Minister is empowered to establish a court by granting a court warrant. He may at any time revoke this warrant. Equally, he determines the place and sittings of the Local Court.
These provisions appear harmless. Nevertheless, they are at odds with the notion of an independent and autonomous judicial branch. It is noteworthy that the Minister does not enjoy similar power in relation to other courts. These courts come under the direct control and supervision of the Chief Justice.
The Local Court Officer is vested with the power of supervising the work of the Local Courts justice. He can call a case record for inspection, review the case, hear the witnesses and set aside the judgement.
There is no doubt that these provisions are rooted in the colonial past. Many factors led to this development. The notion of the separation of powers did not have the force of constitutional backing. During the colonial period, there was a deliberate fusion of administrative and judicial powers in the District Secretary and the Local Court Officer. Invariably, these posts were preserves of the whites. It was a point taken for granted that the white race had an inherent power to supervise and load over to the blacks.
These provisions which are a legacy from the colonial past have not been tested against accepted democratic standards. It is unacceptable from a constitutional viewpoint that a non-judicial officer overturns a decision of a tribunal vested with judicial authority. It does not matter whether the non-judicial officer has better legal education or not.
It should be pointed out that under existing arrangements the subordinate court is a legitimate appellate court from the Local court. The supervisory role of the Local Court Officer is therefore superfluous and unconstitutional.
At the apex of the administrative pyramid, the local courts come under the supervision of the Director of Local Courts. Thus one sees a parallel supervisory structure. In one stream, there is supervision of the local courts by the local court officer, provincial local officer and the Director of the local courts; on the other, there is supervision by the magistrates.
It has been noted that this structure creates divided loyalty and that it is obsolete. Many magistrates contend that the local courts should be supervised in all respects by judicial officers. On the other hand, the local court justices are inclined to accept the present arrangement as more pragmatic. They point out that magistrates hardly visit remote local courts.
The other area of concern is the provision which excludes legal representation in local courts. There is an exception for legal counsel to represent an accused in criminal cases. The research discovered that the majority of respondents, magistrates and Local Court justices were not aware of this legal provision.
But even when the provision was drawn to the attention of the magistrates they expressed grave doubt as to the practical value of an advocate arguing a case in the Local Court. The main obstacle is the prejudice he is likely to face from the court. The consequence of this prejudice is that legal practitioners are held in low esteem.
Legal representation is expressly excluded in all civil matters. Some feel that this provision is grossly unfair because a greater number of cases heard in the Local Courts are civil disputes. Thus in the area of its greatest competence, the law excludes advocates.
In a system of law based on the resolution of opposed arguments, it would have been to the advantage of the courts to allow a free play of legal arguments. The local justices perceive lawyers as:
It was the perception of the majority of magistrates that unless the entire
Local Courts system was overhauled, advocates would be regarded negatively in the Local Courts. Their arguments would have no positive impact in the dispensation of justice.
A fair comment was that the lawyers would tend to be very strict with the technical rules of evidence and procedure. The flexibility and quick delivery system which is a positive attribute of the Local Courts, would be destroyed.
2.6 Troubled Areas in Criminal Jurisdiction of the Local Court
Four uncomfortable situations merit comments.
2.6.1 Failure to obey a Court Order as a Contempt of Court:
Under this head the Local Court resorts to summary criminal prosecution of a defendant who has failed to pay on a stated date compensation due to a defendant. The Court does not investigate the probable reasons for the defendant's default. Further, the court limits its sentencing powers to a fine or imprisonment. A suspended sentence or a caution are not regarded as legitimate options.
2.6.2 Corporal Punishment
The law vests in the Local Court the power to impose this sentence. There is a provision that a person sentenced to suffer corporal punishment should be detained while waiting for the sentence to be confirmed. This provision technically constitutes double punishment for one offence.
The Local Court justices proudly say that they do not inflict this punishment. They are unanimous that it is inhuman and degrading punishment. The majority of the justices blame the magistrates for inflicting corporal punishment more often.
This observation was confirmed by the majority of magistrate respondents. It was interesting that the magistrates accepted the proposition that corporal punishment was inhuman and degrading and thus in conflict with Article 15 of the Constitution. Nevertheless, in the absence of an authoritative ruling by the High Court outlawing this form of punishment, they feel inclined to use this as a better option to imprisonment.
One magistrate felt very strongly against corporal punishment. He described this punishment as a legacy from the colonial past where the targeted victim was a black person. Throughout the colonial period no court ever imposed corporal punishment on a white person.
2.6.3 Offences against Customary Law.
The local court may convict a person who has violated customary law. Examples were difficult to find supportive of this class of crime. One justice thought that if a person from some customary law regime, committed adultery with his uncle's wife, the court could treat that act as constituting a crime at customary law.
This uncertainty in the law has the potential of abuse. Furthermore, the Constitution protects a person from being charged with a criminal offence that is not written and whose penalty is not prescribed in a written law.
Thus the latitude contained in the Local Courts Act apart from being vague and ambiguous, is clearly unconstitutional.
2.6.4 General Contempt of Court
In criticizing the Local Courts, the magistrates observed that the offence of contempt of court was overzealously used. Contempt was too widely interpreted. There were instances where a person who refuses to sit on the floor when ordered by the court is charged with contempt. In another illustration, the court charged the defendant with contempt of court for replying in English when the questions were put to him in a local language.
There were other clusters of contempt of court which include-
As an illustration of (b) one local court said that if a person who had been ordered to purify the plaintiff, failed to do so, the court may convict him for contempt.
2.6.5 Gender and some aspects of Customary Law
An important attribute in a democracy is the equality of all persons before the law. We cite two instances where gender has a bearing on legal remedies.
2.6.5.i Damages for Adultery.
A common civil action in the Local Courts is a claim of damages for adultery. A man whose wife has committed adultery is entitled to claim damages against the person who committed adultery with his wife. On the other hand, a wife cannot claim damages against a woman who has committed adultery with her husband.
There are no good reasons for this differentiation on the basis of the sex of the offended party. One explanation is that the option for polygamy available to the husband provides a justification for his action.
There is no single case in the Local Courts where a woman's claim for damages has come before the courts.
An ingenious development to circumvent the unfairness of this customary law is being developed by the courts. A novel civil action of interfering with a marriage is available to a wife against the woman with whom her husband has committed adultery.
This approach reflects a response of customary law to gender inequality. Nevertheless, it falls short of affording equal remedies to all persons and violates the notion of the equality of all before the law.
2.6.5.ii Spouse's Expectations in Intestate Succession
The Intestate Succession Act gives the surviving spouse 20% share of the estate of the deceased spouse and the right to the matrimonial home and domestic utensils. The law gives equal rights to the surviving spouse irrespective of sex. The courts gladly enforce the claim by the party seeking relief.
However, in this case it is not the law that is defective but the conservative social forces. Generally, the majority of Zambian women are dependent on their husbands. This is the predominant pattern. But in instances where the deceased wife was relatively well to do, her family cannot accept the notion of her late husband's entitlement to the estate. As one observer commented: "It seems to be the rule that only husbands die leaving behind property. The women die without any property."
THE LOCAL COURT'S EMPIRE
3.1 The Local Court in Action
The role of the local court and its dynamic nature is best appreciated by gleaning at the court in action. In this way, the social value of the court would be appreciated.
The Local court plays the role of arbiter, medium of reconciling the family and guardian of custom. Three simple cases we attended illustrate these three roles.
A man died in Lusaka leaving behind two widows. The plaintiff, who was the first wife, and to whom the deceased was married for a long time was barren. The second widow had two children with the deceased. The deceased left a seven roomed house in one of the shanty compounds. The administrator of the estate gave two rooms to the second widow. The remaining five rooms were distributed to the deceased's relatives. The plaintiff was not given any share on the ground that she had no children.
In an action to reverse the distribution, the court ordered that two rooms should be given to the plaintiff. The court emphasized that it was not the plaintiff's fault that she did not have children. "It was God's fault and we cannot punish her for some thing beyond her power". Moreover, the court pointed out that the action of the administrator offended against common standards of decency. The plaintiff had contributed indirectly to the house. The second widow's contribution was at best minimal.
The court did not concern itself with the tribal customs of the parties. It delved on the justice in the case.
A wife sued for divorce in a Mazabuka court. Her husband abandoned her when she was four months pregnant. He contracted another marriage and lived with his second wife in his parent's village. Apart from K45, 000 he had given her, no support was forthcoming from him. When her child was four months old , she sued for divorce, alleging among other grounds, gross negligence and the fact that her husband had contracted a second marriage without the courtesy of informing her. On his part, the defendant could not come out with any reasonable defence. He pleaded for forgiveness and declared his love for her.
The court asked the plaintiff's mother for a statement. She was of the view that the marriage ought to be dissolved because of her son-in-law's negligence. She however paid a glowing tribute to the defendant. She was of the opinion that he was a very good man who unfortunately was under the control and negative influence of a bad father. She added: "Of all my sons-in-law, he is the best."
When the court asked the plaintiff whether she was prepared to forgive the defendant, she was adamant that the marriage should be dissolved.
The two justices hearing the case stood the case for ten minutes. After the adjournment the court held that it would not pass a judgement. In the court's view the plaintiff needed more time to weigh her husband's apology. The court further ordered that the defendant's father should come to court for chastisement when the case came before the court in a month's time.
When we discussed the case with the justices in chambers, they pointed out that the court was always eager to reconcile the parties when there was a hint at the possibility of reconciliation. In this case there were three factors that swayed the court's judgement. First, the husband appeared to be humble and not very clever. Moreover he appeared to be extremely sorry for his actions. Second, the mother-in-law had a lot of confidence in the defendant. Third, the couple had four children who all died in early infancy. The present child was the first survivor. It was the court's view to give the baby and its parents a chance to start a new chapter.
A Tonga plaintiff brought an action for purification in a Choma Local court against his father-in-law. He claimed that since his wife died, the father-in-law had not offered him a woman with whom he could have ritual sex to exorcise the spirits of his departed wife. In reply the defendant counter claimed that he had not refused to provide the plaintiff with a woman to purify him. He was always prepared to offer a woman to purify the plaintiff on condition that he completed the malobolo payment. The plaintiff conceded that he had not paid all the malobolo that he had initially been asked to pay. The court held that under Tonga custom the plaintiff was entitled to be purified by a female relation of his late wife. However, this right could only be invoked if the malobolo were paid in full. The case was adjourned to give time to the defendant to pay the remaining portion of malobolo.
This case fell on the four walls of custom. The court was alive to the fact that benefits of a custom cannot be invoked before a fundamental and necessary customary duty is carried out.
3.5 Status - The Domain of Customary Law
To the consumers of local court justice, the most important role of the local courts is in the settlement of domestic disputes arising from marriage relation and access to sexual or reproductive resources.
The cardinal point is that the theory of customary law is primarily founded on status. Contract plays a secondary law, and to some extent, it is a modification borrowed from received law.
Under Bemba custom, a parent or guardian of a girl has a right to sue any person who enjoys the first act of sex with her. This is the claim for ulupe lwa chisungu. All Zambian customs recognize a parent/guardian's right to sue the person who makes their child/ward pregnant.
What is significant is that the action cannot be brought by the girl who is the victim of the illegal sexual relation. The right to sue is derived from the family status and can only be claimed by the family. It is noteworthy that in these sexual cases, the girl who is the subject of the sexual claim is joined with the man as a co-defendant.
The doctrine of status has far reaching practical implication. For example, a marriage is not valid unless it is recognized by the girl/woman's family. This recognition is made possible by payment of malobolo to the woman's family. If malobolo are not paid, two legal actions are possible. There is an action for elopement and claim for the payment of malobolo.
In contrast with the modern position where a marriage is a contract between two people, a customary marriage is at best a treaty or alliance between two families.
These differences in approach have real and not academic consequences. This difference can be illustrated by the nature of the divorce proceedings. In a statutory marriage no other person apart from the husband and wife may institute a petition for divorce. Under customary law, the parties may sue for divorce. But in addition, it is not uncommon for the wife's relatives to institute divorce proceedings particularly where cruelty is alleged.
3.6 The Impact of the Doctrine of Status on Divorce
The status notion often compels the court to summon the couple's relatives in divorce proceedings.
Grounds for divorce are open. The common ones are:
The list is not exhaustive. It is all a matter of case-by-case approach.
The tort of "insult" is unique to customary law. It is an actionable tort to refer to a person's private parts in public. This is aggravated if the words are uttered in the presence of the offended person's relatives or the opposite sex. Insults are prohibited because they are potentially disruptive of the social order.
Divorce leads to other issues. The courts now address the question of maintenance. The past practice was for the court to order a distribution of domestic property. But they have now gone a step further. An order for a lump sum or periodic maintenance is made. This appears to be an innovation in response to the pressures of urban culture.
The custody of children has also undergone some important changes. In strict construction the question of who has access to or custody of the children after the break down of marriage was resolved by the descent system of the wife. In matrilineal societies, the woman invariably had custody of the children. Under the patrilineal order, the man had custody of the children.
The urban milieu and the conflict of customary practices in intermarriages has altered custom in a different direction. The courts have now adopted the doctrine of the best interest and the welfare of the child. Generally, where a child is below seven years the mother is granted custody. Otherwise the rule of the thumb is that the parent who offers a better material and spiritual environment of the child is granted custody. Orders for maintenance follow.
There are also instances where a divorce may be pronounced when the relationship did not meet the requirements of customary law. In the urban areas, instances abound where a man and woman have cohabited for up to ten years. They carry on as husband and wife. No malobolo were paid.
What happens when the man decides to terminate the relationship? From the strict standpoint of customary law, there is no marriage to talk about. However, the courts have gone beyond the veil of formality. A presumption of marriage is made upon which orders for distribution of matrimonial property and maintenance are made.
These developments indicate that the local courts are capable of developing legal concepts which lead to substantive justice in areas where the strict application of customary law standards would lead to unfair and oppressive results.
THE PERCEPTION OF LOCAL COURTS BY THE SUPERIOR COURTS
4.1 The Superior Courts' Attitudes Towards Local Courts
The study revealed that some of the magistrates did not appreciate the fine distinction between traditional courts and local courts. The former were pre-colonial institutions deeply rooted in rural practices. Local courts were creatures of colonial authority. Their main purpose was to provide a medium for resolving disputes common to the African population. The emphasis therefore was on African customary law. This African customary law applied exclusively to Africans.
Very little has altered from the original premise. Native courts have been replaced by Local courts while the substance of the legislation is exactly the same. In their early stage of evolution the local courts were placed under local government. It was only after independence that they fell under the judiciary.
4.2 Limits of Customary Law
Customary law may be defined as:
Therefore, customary law would ordinarily be upheld unless it is repugnant to morality, good conscience and equity.
Among the Tonga a custom of abducting a female with a view to forcing her into marriage was regarded as perfectly legitimate. This practice has since been held to be repugnant and consequently void.
The repugnant clauses were the saving provisions in those days before a Constitution with a bill of rights was in place. Today, this and other practices would fall short of the constitutional requirements.
4.3 Customary Law needs to be proved in the High Court
A difficult notion in independent Zambia is the treatment of customary law on the same footing as foreign law. It needs to be proved. In contrast, the court is presumed to know the common law of England and the principles of equity. These are part of the received foreign law. Indigenous law remains outside the province of the highest courts.
This anomaly undermines the development of free cultural expression of the people through the legal system.
LOCAL COURTS TODAY- DECLINE AND DECAY
5.1 Power Without Glory
The local courts are today the busiest courts in Zambia. Some urban courts hear between 30 and 50 cases in a day. The working environment is not conducive. Many court rooms are completely run down. There are broken windows, falling ceilings, peeling paint and blocked toilets or no toilets at all.
In nearly all the courts there were broken chairs and tables. Court justices and messengers particularly in the rural areas had no accommodation. At one court, the justice lived ten kilometres away from his court. He has to cycle daily. Messengers have no bicycles, no uniforms, and no handcuffs.
In many courts, robes are either not available or are torn and worn out. Justices are obliged to purchase their own pens. They improvise on stationery. In many courts, justices ask the litigants to pay K500 for exercise books to record court proceedings. The losing party refunds the winner. In one of the courts we visited, the writing material comprised paper that was used to teach people how to vote in the Second Republic.
In nearly all the courts visited, the justices did not have the most important statutes necessary for their work. There were no copies of the Local Courts Act and the Local Court Handbook. If any statutes were available, they were clearly outdated.
5.2 Lack of feedback on Appeal Cases
Although the Local courts are supposed to be guided by the decisions of the superior courts, there is no feedback. Local courts have no way of knowing which of their decisions have been reversed by the superior courts, and for what reasons. However, this observation is not peculiar to the local courts. The subordinate courts complained of lack of reported cases from the High Court and Supreme Court.
5.3 Poor Conditions of Service
The justices complained of distressing working conditions and very low salaries which were never paid on time. The starting salary of a court justice is just over K100,000 per month and the highest paid presiding justice earns slightly over K150,000 per month. This may be compared with a Permanent Secretary's fuel allowance of over K300, 000 per month.
The salary of the justices appear at Appendix 2
It was the justices' view that whenever government thought of improving the conditions of service of the judiciary, the focus was on the High Court and the Supreme Court.
The conditions of service are silent on accommodation, transport and subsistence allowance. There are instances when it was necessary to visit a place in dispute in order to arrive at a just settlement. This is often defeated by lack of a station vehicle. In consequence, justice is compromised.
5.4 The Myth of Autonomy
It was a universally held view by the justices as well as the magistrates that the autonomy of the judicature was a myth or at best a High Court and Supreme Court affair. The justices felt very strongly that all their good efforts in generating revenues through court fees and fines were nothing but a form of tribute to the judges. They recommended a system which would guarantee that 50% of the collected revenues were retained by the local courts. They recalled that the previous arrangement when the provincial local court officer was a sub-warrant holder was much better than the present system. Under that arrangement subsistence allowance and station requisites could be met by the provincial local court officer from his vote.
The centralized system denied the periphery access to loans and other benefits.
5.5 A Failed Experiment
Respondents from different walks of life expressed little confidence at the manner the local courts were run and funded. The majority felt that the authorities, and to some extent the Kaunda regime, placed a premium on merit and competence in the administration of public affairs. The present system suggested tribalism, nepotism and a total lack of direction. One court worker bluntly said: "Things are getting worse. Liars are saying things are improving because they are eating honey somewhere."
Poor funding and the extraction of locally generated revenues by the central administration have evoked very strong feelings of neglect.
5.6 Absence of Capacity Building
Local courts were not exposed to high level seminars, particularly in the field of human rights law. Many felt that access to training and seminars was a privilege of those in Lusaka or in provincial capitals.
The research revealed that contrary to popular beliefs, the local courts are often sanctuaries to learned and wise justices. We came in contact with a presiding justice who once held the posts of manager of schools and district secretary; a local court justice who formerly served as a deputy high commissioner and deputy permanent secretary. These justices provide a necessary fusion of modern concepts and positive values from the past.
CRISIS OF THE LOCAL COURTS AND THE CRISIS OF GOVERNANCE
The institutional decay of the local courts is not unique. The magistrates and the ordinary consumers of the court system have expressed alarm at the state of neglect of public institutions.
In an expression of desperation, the local court justices, magistrates and private citizens felt that the presidential fund should address the pressing needs of the courts which are vital to the sustenance of democracy. They did not think it was appropriate to have a fund under the unfettered control of the head of state while public institutions were underfunded.
Although judicial officers are poorly paid they are nevertheless expected to keep up appearances as required by the Code of Conduct. The expectations of the Code are extreme. The adjudicators and the public at large felt that it was difficult to fight the temptation of corruption if one was poorly remunerated.
The local court justices and magistrates had gone on a go slow strike action two months ago. The strike was abruptly called off by the Magistrates Association of Zambia. The local court justices appear to have evidence that government made a deal with the magistrates. They told us that the magistrates were pacified from the strike action by a payment of K1 million each across the board. The local court justices felt that the government was using divide-and-rule tactics to break the industrial action of adjudicators. The magistrates did not dispute this accusation. They however defended the government on the ground that local court justices were retirees on contract. In reply, the local court justice drew our attention to judges who were on contract and yet enjoyed the salary judges were entitled to. This development demonstrates the lack of interest government pays to the local courts.
One major criticism of the judiciary is that power appears to be firmly locked in the central administration in Lusaka. The Provincial High Courts have no impact on the provincial courts.
We noted that one court remitted an average of K500,000 per month in court fees and fines to Lusaka but the same court has no stationery. The court last received token supplies in December 1997.
The view-point of Afronet is that democracy is about local control based on law and social trust. There is no doubt that the seemingly autocratic and centralized approach of the central administration of the judiciary is a reflection of the centralized power structure of the Zambian state. This is antithetical to the democratic spirit.
Many consumers of justice felt that it was a fallacy to expect the judiciary to be independent only at the apex of the pyramid while the base remains captive to material and social needs.
The research revealed the absence of any recorded contacts between the Head of the judiciary and the grassroots of the judiciary. Such contacts would be a great morale booster to an otherwise demoralized workforce.
CONCLUSION: EMERGING ISSUES AND RECOMMENDATIONS FOR ADVOCACY
7.1 General Observations
A number of critical issues emerged from the study. In general, the local courts have not received much support from the government. The operative legal framework is inherited from the colonial times. Talk of reforms are occasionally repeated; in reality, the governments approach to the local courts is similar to the way the colonial authorities treated the native courts. They were seen as appendages to the judiciary, but not wholly part of the judiciary.
There are important considerations which need to be addressed.
7.2 Denial of Legal Representation as a violation of Human Rights
Every person has a right to be presented by a lawyer of his choice. Advocates are denied audience in the local courts except when defending criminal matters. This right has so far not been exercised for a number of reasons. The denial of legal representation for civil matters in the local courts violates the constitution and other international human rights treaties and covenants.
It is recommended that the law should be amended.
7.3 Gender Equity on the Local Court Bench
The study revealed that the major preoccupation of the local courts is civil adjudication. Of this segment domestic relations take an upper hand. Yet the number of female judges on the bench is insignificant. There are only 16 female local court justices or 1.6% out of a total of 907. (Appendix 4). There are indications though that the judiciary has instructed all local court officers to recruit more women. The traditional rulers place a low premium on the ability of women to arbitrate.
It is therefore recommended that affirmative action be adopted to reverse this imbalance. The Gender in Development Division of Cabinet Office should be requested to address this matter. The Chief Justice has the power to reverse the historic disadvantage and discrimination of women in this area.
7.4 Abolition of Dehumanizing Practices
Although in terms of declaration, Zambia is a Christian nation, in practice pre-Christian beliefs and psychology are dominant. Side by side with the worship of the Christian God is animism and ancestor worship where rites and offerings are made to placate the angry gods.
Non-Christian practices and beliefs particularly evolve around the cycle of birth and death. Prominent is the ritual of purification of a surviving spouse. This is more pronounced among the matrilineal groups who are in any event the majority of the Zambian population. Purification serves to appease the spirit of the dead failure to which the surviving spouse believes he/she may die or run insane.
There is symbolic cleansing and physical cleansing. In the former, the surviving spouse is smeared with powder or mealie meal, or a band or a string of beads is tied on his arm or around his neck. Physical cleansing involves sexual intercourse with a relation of the deceased. Sexually cleansing carries with it the danger of spreading HIV. Cases which come before the courts normally suggest that some payments or obligations were not fulfilled on the part bringing an action. The legality or social desirability of purification is never an issue. It thus follows that purification rituals are taken for granted as part of customary law.
It is recommended that government introduce legislation which will make sexual purification unlawful. There is an urgent need for workshops and seminars with village communities sensitizing them on the advantages of making a shift from sexual to symbolic cleansing.
7.5 Overhaul and Transformation of the Local Courts
The exercise of judicial discretion requires training in substantive and procedural law. The local court justices' understanding of the law of evidence is superficial. When trying a matter, the justices rely completely on the court clerk to record the proceedings. It has been pointed out that in some cases the clerk's narrative is not consistent with the proceedings.
Enlightened consumers of the justice system felt that the institution of the local court has outlived its usefulness. This point is reinforced by the fact that customary law is in decline in the urban areas. In the rural areas, custom and ritual are often confused with law.
It is recommended that minimum educational qualifications and training in law should be set. Further, the local courts should be overhauled, transformed and fused in the subordinate court system as Magistrates Class IV. In this regard training in the basic principles of customary law, sociology, the constitution, law of evidence and elementary sociology and anthropology should be offered.
7.6 Decentralize Administrative Authority
The administration of the judiciary is concentrated in Lusaka. The purchase of office requisites as well as applications for loans and subsistence allowances are all logged in the central administration. This has a stifling influence on local operations.
Local initiative is paralyzed leading to inefficiency and poor delivery of justice. Empirical evidence on the ground clearly shows that the local courts raise more revenue through fines and fees more than any other court. However, the whole exercise appears to be aimed at maintaining the high court and supreme court.
It is recommended that the funding of magistrate and local courts be decentralized. The practice of purchasing stationery for these courts is outdated and borders on lack of trust.
7.7 Review and implement better Conditions of Service
As in the colonial past, security of tenure and good conditions of service were the privilege of the judges of the high court and the court of appeal. Magistrates and local court justices are poorly paid. They have no official transport. They have no office newspapers and have no imprest for office tea or coffee. Loan applications are ignored under the rubric of lack of funds. Yet, by the nature of their jobs as adjudicators they lead solitary lives.
In order to enhance the independence of the judiciary it is recommended that the magistrates and local court justices be paid salaries consistent with their roles as adjudicators. The high standards set in the Code of Conduct should be complemented by just remuneration. Loans to buy houses, cars and furniture should be made available.
7.8 Human Rights Seminars.
The magistrates and local courts visited expressed gratitude to the effort made by Afronet to research on the performance of the judiciary. They all looked forward to continued interaction with Afronet and other NGOs on a number of topical issues, particularly in the area of human rights.
It is recommended that Afronet continues with its grassroots research which provides the adjudicators and their staff with a rare opportunity to express their views and comment on the performance of their institutions.
7.9 Customary Law and the Right to Culture
The research has shown that customary law can be a dynamic force responsive to change. Customary law, when balanced by morality, ethics, social justice and equity, constitutes an invaluable legacy of the people. Unlike received law, customary law seeks reconciliation and promotes community harmony.
It is recommended that Afronet and other human rights NGO engage government on the need to reconstruct the traditional system on the basis of human rights. It is wrong to view customary law as entirely negative and misguided.
7.10 Corporal Punishment
Under the Local Courts Act, corporal punishment is one of the optional sentences available to the local courts in criminal cases.
Considering that this form of punishment is inherently inhuman and degrading as it constitutes a form of torture, and since the Zambian courts have not yet pronounced on its constitutionality, it is recommended that Afronet institute public interest litigation to establish authoritatively the constitutionality of corporal punishment.
OBJECTIVES OF THE STUDY
The objectives of the Study were-
SALARIES OF LOCAL COURTS JUSTICES
1,954,104 x K 29,388 p.a.
1,712,184 X K 22,932 p.a.
1,559,568 X K 19,812 p.a.
1,559,568 X K 19,812 p.a.
Submissions on Conditions of Service
Evaluation of Duties.
2.0 Criminal Cases
2.I Hearing and determination of criminal cases arising from civil cases, i.e. failure to obey
court orders, failure to obey civil and criminal summons.
2.2 Hearing and determination of criminal cases under written Law (statute) as empowered
the administrator has failed or mishandled the same.
4.0 Marriage Certificates
6.3 The proposed salary categories are therefore as follows:-
(These are outdated-Afronet)
SENIOR PRESIDING JUSTICE (JSS/4) K 636,000 p .a
PRESIDING JUSTICE GRADE A (JSS/5) K624,000 p.a.
8.0 Transport To & From Work
Therefore people who visit a person can be impressed by his manners only if he has clean and reasonable furniture in the house.
11.0 Salary Advances
12.0 Education Allowance
13.0 Medical Aid
14.0 Funeral Grant
It is considered that housing allowances be re-introduced and paid to non-accommodated Court staff.
GENDER BALANCE IN THE LOCAL COURTS IN 1998
Senior Presiding Justice ...98
Presiding Justice .326
Senior Local Court Justice .145
Local Court Justice 326
LIST OF RESPONDENTS
* Secondary School Teachers interviewed at Naboya Secondary School, Kafue.
**NCDMS- National College of Development and Management Studies, Kabwe.
*** KNTTC- Kwame Nkrumah Teachers' Training College, Kabwe.