UNIVERSITY OF

LUSAKA
SCHOOL OF LAW
UNIT 4:
SOURCES OF LAW
INTRODUCTION
In its simplest terms, the phrase
“sources of law” simply refers to
the various materials from which
the law that we use is gotten from.
To a very large extent, these
materials are a product of the
country’s constitutional set up as
well as the historical basis of the
country’s legal system.
INTRODUCTION
The following are the sources of law in Zambia (as
provided for in Article 7 of the amendment
Constitution):
The Constitution;
Laws enacted by Parliament;
Statutory Instruments;
Zambian customary law which is consistent with
the Constitution; and
Laws and statutes which apply or extend to
Zambia, as prescribed by an Act of Parliament
CONSTITUTION OF ZAMBIA AS A SOURCE
OF LAW
The Constitution of Zambia is the primary
source of law in Zambia.
It is the primary source of law because it is the
supreme law of Zambia and if any other law is
inconsistent with it, that other law, to the extent
of the inconsistency, is void. See: Article 1(1) of
the Constitution of Zambia (Amendment) Act
No 2 of 2016
Further, it binds all persons in the Republic of
Zambia including all Legislative, Executive and
Judicial organs of the State at all levels. See:
Article 1(1) of the Constitution of Zambia
(Amendment) Act No 2 of 2016
CONSTITUTION OF ZAMBIA AS A SOURCE
OF LAW
That the Constitution is the supreme law of
Zambia entails that the existence and validity of
other laws in the country depends on the extent
to which such other laws are consistent with the
provisions of the constitution.
Read the following cases:
Thomas Mumba vs. The Attorney General
(1984) ZR 38
Christine Mulundika & 7 Others vs. The People
S.C.Z. Judgment No. 25 of 1995
MacDonald Chipenzi & 3 Others v The People
HPR/03/2014
 CONSTITUTION OF ZAMBIA AS A SOURCE
OF LAW
The relationship between the constitution and other laws
was ably explained in the case of Thomas Mumba v The
Attorney General. In that case, Mr. Justice DK Chirwa had
this to say:
“In countries like Zambia where there is a written
constitution, the Constitution is the supreme law, any other
laws are made because the Constitution provides for their
being made; and are therefore subject to it. It follows
therefore that unless the Constitution is specifically
amended, any Act that is in contravention of the Constitution
is null and void”.
The case of Thomas Mumba just referred to is one of those
cases which confirms the position that the validity of all
other laws depends on the extent to which such laws are
consistent with the provisions of the constitution.
 ACTS OF PARLIAMENT AS A SOURCE OF
LAW
Article 61 of the Constitution vests the
legislative authority of the Republic in
the people of Zambia. It must be
exercised in a manner that protects the
Constitution, and promotes democratic
governance.
In terms of Article 62 of the
Constitution, the people of Zambia vest
their legislative authority in Parliament. It
consists of the President and the
National Assembly.
ACTS OF PARLIAMENT AS A SOURCE OF
LAW
•Subject to the provisions of the constitution,
the legislative power of Parliament is
exercised by Bills passed by the National
Assembly and assented to by the President.
See Article 63 of the amendment constitution.
•Article 64 of the amendment constitution
empowers Members of Parliament and
Ministers to introduce a bill in the National
Assembly. However, a money bill can only be
introduced by a Minister.
ACTS OF PARLIAMENT AS A SOURCE
OF LAW
65. (1) A Money Bill shall be introduced by a Minister. Repeal and
replacement of Articles 62 to 78 Principles of legislative authority
Parliament, vesting of legislative authority and Members of
Parliament Functions of Parliament and National Assembly
(2) A Money Bill means a Bill that provides for, among other matters
— (a) the imposition, repeal, remission, alteration or regulation of
taxes; (b) the imposition of charges on the Consolidated Fund or
any other public fund, or the variation or repeal of any of those
charges; (c) the appropriation, receipt, custody, investment, issue
or audit of accounts of public monies; (d) the grant of public money
to a person or authority or the variation or revocation of such grant;
(e) the raising or guaranteeing of a loan or the repayment of it; or (f)
matters incidental to matters specified in this clause.
(3) A Bill that confers emoluments on State officers or
Constitutional office holders shall only be introduced in the
National Assembly if the emoluments are recommended by the
Emoluments Commission.
 TYPES OF BILLS
(a) Government Bill / Public Bill
These are also referred to as Public Bills because they
affect the public as a whole.
A Government Bill is presented by His Honour the Vice –
President or a Cabinet Minister. It is accompanied by a
Memorandum signed by the Attorney General. The
Memorandum gives objectives and reasons why the Bill
should be passed.
(b) Private Bill
This type of Bill is usually sponsored by a person or
persons with private interests to advance. The Bill aims at
enacting or altering the law that only affects a particular
person or body of persons such as private companies. For
example, a Bill entitled “The Moslem Marriage Recognition
Bill” would enable a law to be passed that would recognise
Moslem marriages.
TYPES OF BILLS
A Private Bill may be presented on a petition of the promoter who
could be a single person or group of persons. The promoter of a
Private Bill is also responsible for the costs incidental to the
passage of the Bill in the National Assembly.

(c) Private Members’ Bill

Like a Government Bill / Public Bill, a Private Members’ Bill is

also a Public Bill and the cost associated with its drafting and
passage in the National Assembly is met from public funds. The
only difference between a Government Bill / Public Bill and a
Private Members’ Bill is that the latter is introduced, in the National
Assembly, by a Private Member of the National Assembly. That is a
back-bencher.
TYPES OF BILLS
(d) Hybrid Bill
A Hybrid Bill is a Bill which, although general in its
intended application, affects certain private or local
interests.
The Standing Orders give the Speaker the power to
determine whether a Bill is hybrid or not.
In Zambia, the most common type of Bills that are
introduced in the National Assembly are Government
Bills and Private Members’ Bills.
CURRENT LEGISLATION
The statutory laws of Zambia are contained
in a set of loose leaf volumes known as the
Laws of Zambia. These are commonly
referred to as the “green volumes”.
The Attorney General is empowered to
revise the laws of Zambia.
Revision of the laws is necessitated by on-
going changes and developments in the legal
system. However, the laws of Zambia were
last revised in 1997.
CURRENT LEGISLATION
Where there is a gap in local legislation (where the
Zambian Parliament has not enacted a law that
addresses a particular subject), the law and practice
that is for the time being observed in England and in
the British court of justice shall apply.
See:
Section 10 of the High Court Act Chapter 27 of the
Laws of Zambia,
Kausa V Registrar of Societies (1977) Z.R 195
Also see KABWE TRANSPORT COMPANY LIMITED
v PRESS TRANSPORT (1975 LIMITED) (1984) Z.R. 43
(S.C.) where the Supreme Court disapproved the
decision of the High Court in the case of Siwingwa v
Phiri (1979) Z.R. 145.
CURRENT LEGISLATION
Section 10 of the High Court Act provides as
follows:
The jurisdiction vested in the Court shall, as
regards practice and procedure, be exercised in
the manner provided by this Act and the Criminal
Procedure Code, or by any other written law, or
by such rules, order or directions of the Court as
may be made under this Act, or the said Code, or
such written law, and in default thereof in
substantial conformity with the law and practice
for the time being observed in England in the
High Court of Justice.
.
 DELEGATED / SUBSIDIARY
LEGISLATION
Article 67 of the Constitution gives Parliament
authority to confer on any person or authority power to
make rules, regulations, by-laws, orders etc. with the
effect of law. However, this delegated authority should
ensure that all rules, regulations, by-laws or orders so
made are in conformity with the parent or main Act
enacted by Parliament.
All delegated legislation, which is sometimes known
as subsidiary legislation, takes the form of Statutory
Instruments (SIs).
Section 2 of the Interpretation and General
Provisions Act , defines a Statutory Instrument as ‘any
proclamation, regulation, order, rule, notice or other
instrument (not being an Act of Parliament) of a
legislative, as distinct from an executive, character’.
 DELEGATED / SUBSIDIARY
LEGISLATION
That Statutory Instruments are a source of law is unquestionable
under Section 20 of the Interpretation and General Provisions Act.
This is because under subsection 6 of section 20, “any act done
under or by virtue of or in pursuance of a statutory instrument shall
be deemed to be done under or by virtue of or in pursuance of the
written law conferring power to make the instrument”.
However, it is mandatory that every provision of a Statutory
Instrument must be consistent with the provisions of the parent or
main Act. Any provision of a statutory instrument which is
inconsistent with any provision of the parent Act is void to the extent
of the inconsistency .
The Parliamentary Committee on Delegated Legislation is
responsible for ensuring that all Statutory Instruments are in
conformity with the principal statute under which they are made and
that they also do not contravene the provisions of the Constitution.

See: The Attorney-General v The Local Government Election

Commission (1990 - 1992) ZR 182
 DELEGATED / SUBSIDIARY
LEGISLATION
The Attorney-General v The Local
Government Election Commission (1990 -
1992) ZR 182
HELD:
The Local Government Elections Act does
not make literacy a condition for candidacy,
therefore a regulation creating such a
condition is ultra vires the Act and of no legal
effect.
LAWS AND STATUTES WHICH
APPLY OR EXTEND TO ZAMBIA, AS
PRESCRIBED BY AN ACT OF
PARLIAMENT

The common law and principles of

equity are recognized as a source of
law in Zambia pursuant to Section 2 of
the English Law (Extent of Application)
Act.
It provides that the common law and
principles of equity shall be applicable
in Zambia, subject to the provisions of
the Constitution or any written law.
COMMON LAW AS A SOURCE OF
LAW
Common law is the legal tradition which evolved in
England from the 11th century onwards. It is defined
as that ‘part of the law of England formulated,
developed and administered by the common law
courts, based originally on the common customs of
the country and unwritten’.
Common law is the foundation of private law, not
only for England, Wales and Ireland, but also in forty
- nine U.S. states, nine Canadian provinces and most
countries which first received that law as colonies of
the British Empire and which, in many cases, have
preserved it as independent States of the British
Commonwealth.
EQUITY AS A SOURCE OF LAW
On the other hand, equity is a body of rules
which seek to advance what is ‘just’ and ‘fair’
in the circumstances of each case. For this
reason, equity is said to denote ‘natural
justice’.
Equity developed as a result of defects in
the common law.
The importance of the doctrine of equity is
that whenever there is a conflict between law
and equity, the latter prevails.
ENGLISH STATUTES AS A
SOURCE OF LAW

English statutes that were passed before 17th August

1911 are also recognized as a source of law in Zambia
pursuant to Cap 11 of the laws of Zambia.
It should be noted that specific statutes that were
enacted in England after 17th August 1911 are applicable
in Zambia where this is provided for in the British Acts
Extensions Act, or a specific act of parliament.
Mention must also be made that notwithstanding the
provisions of the English law (Extent of Application) Act,
Cap 11 of the laws of Zambia, all English Statutes that
apply to Zambia by virtue of that Act serve only as
‘reserve’ sources of law in Zambia.
ENGLISH STATUTES AS A
SOURCE OF LAW
This means that we can only resort to such
English statutes if our own Zambian Acts of
Parliament are silent on a particular issue.
See: Section 2 of the English Law (Extent of
Application) Act, Chapter 11 of the Laws of
Zambia
Section 2 of the British Acts Extension Act,
Chapter 10 of the Laws of Zambia
The People v Shamwana & Others (1982)
ZR122
ENGLISH STATUTES AS A
SOURCE OF LAW
The People vs. Shamwana & 12 Others
(1982) ZR122
HELD: The English Law (Extent of
Application) Act, Cap.4, is an enabling Act in
that in the absence of any legislation in
Zambia p124 on any subject, the English
statutes before 17th August, 1911, will apply
in Zambia; and in interpreting a statute one
has to look at the law existing when it was
passed and the mischief intended to be cured.
ENGLISH STATUTES AS A
SOURCE OF LAW
Also worth noting is the fact that in terms of practice and
procedure, the Zambian legal system also relies heavily on
English law. This is evident in the provisions of the
Subordinate Courts Act ; the High Court Act ; and the
Supreme Court Act .
Section 12 of the Subordinates Court Act provides:
The jurisdiction vested in Subordinate Courts shall be
exercised (so far as regards practice and procedure) in the
manner provided by this Act and the Criminal Procedure
Code, or by such rules and orders of court as may be made
pursuant to this Act and the Criminal Procedure Code, and,
in default thereof, in substantial conformity with the law and
practice for the time being observed in England in the
county courts and courts of summary jurisdiction.
 ENGLISH STATUTES AS A
SOURCE OF LAW
Section 10 of the High Court Act provides:
The jurisdiction vested in the Court shall, as
regards practice and procedure, be exercised in
the manner provided by this Act and the
Criminal Procedure Code, or by any other
written law, or by such rules, order or directions
of the Court as may be made under this Act, or
the said Code, or such written law, and in
default thereof in substantial conformity with
the law and practice for the time being observed
in England in the High Court of Justice.
 ENGLISH STATUTES AS A
SOURCE OF LAW
Section 8 of the Supreme Court Act, as read with Section 2
of the Supreme Court (Amendment) Act No. 15 of 2002:
Section 8 of the Supreme Court Act provides:
 The jurisdiction vested in the Court shall, as regards
practice and procedure, be exercised in the manner
provided by this Act and rules of court: Practice and
procedure Provided that if this Act or rules of court do not
make provision for any particular point of practice and
procedure, then the practice and procedure of the Court
shall be(i) in relation to criminal matters, as nearly as may
be in accordance with the law and practice for the time
being observed in the Court of Criminal Appeal in England;
(ii) in relation to civil matters, as nearly as may be in
accordance with the law and practice for the time being
observed in the Court of Appeal in England.
ENGLISH STATUTES AS A
SOURCE OF LAW
Section 2 of the Supreme Court (Amendment) Act
No. 15 of 2002 provides:
2. The principal Act is amended in section eight,
by— (a) the deletion of the full stop at the end of
paragraph (ii) and the substitution therefor of a
comma; and (b) the insertion at the end of
paragraph (ii) of the following words: " except that
the Civil Court Practice 1999 (The Green Book) of
England or any other civil court practice rules
issued after 1999 in England shall not apply to
Zambia unless they relate to matrimonial causes ".
 ENGLISH STATUTES AS A
SOURCE OF LAW
However, it is important to note that all British Acts
declared by any Act to extend or apply to Zambia are in
force so far only as the circumstances of Zambia
permit and, for the purpose of facilitating the
application of the such Acts, it is lawful for any Court
to construe the same with such verbal alterations, not
affecting the substance, as may be necessary to make
the same applicable to the proceedings before the
court.
JUDICIAL PRECENDENT AS A
SOURCE OF LAW
The doctrine of precedent is one of the characteristic features
of not only the English legal system but also all legal systems
founded upon the English common law system like Zambia.
Although Article 7 of the Constitution does not expressly
recognize judicial precedent as a source of law in Zambia, Article
125 of the Constitution provides that the Supreme Court is bound
by its decisions, except in the interest of justice and development
of jurisprudence. From this provision, it may be inferred that
judicial precedents are recognised as a source of law in the
Zambian Constitution.
Judicial precedent may be defined as “a judgement or decision
of a court of law cited as an authority for deciding a similar set of
facts” or as “a case which serves as an authority for the legal
principle embodied in its decision”. The doctrine of precedent
declares that cases must be decided the same way when their
material facts are the same.
 CUSTOMARY LAW AS A SOURCE
OF LAW
Customary law is the oldest form of law
known to man worldwide.
 It consists of customs, practices and beliefs
that are accepted by a given society as
obligatory rules of conduct. It is not enacted
but grows or develops with time.
It expresses itself not in a succession of
words, but in a course of conduct. It has no
definite authors; there is no person or defined
human agency one can praise or bless for its
being good or bad.
CUSTOMARY LAW AS A
SOURCE OF LAW
In Zambia, as in several other countries, different
tribes observe different customs, practices and
beliefs. The customs, practices and beliefs
observed by each tribe sometimes act as a source
of customary law for members of the tribe.
Other than the fact that customary law has been
part of Zambia’s legal system since colonial days,
its existence is also expressly recognized as a
source of law by Article 7 of the Constitution,
provided the custom in question is not
inconsistent with the constitution.
 CUSTOMARY LAW AS A SOURCE
OF LAW
In addition, customary law is recognized in Article 23(4) (d) of
the Constitution. Article 23(1) of the Constitution prohibits laws
that are discriminatory.
However, as an exception to this rule, Article 23(4)(d) of the
Constitution provides that a law that is discriminatory is not
prohibited if it is in the form of a custom that applies to a
particular race or tribe.
That customary law is a recognised source of law in Zambia is
also evident by the provisions of the Local Courts Act and the
Subordinate Courts Act.
See: Section 12 of the Local Courts Act, Chapter 29 of the Laws
of Zambia
Section 16 of the Subordinate Courts Ac, Chapter 28 of the
Laws of Zambia
CUSTOMARY LAW AS A SOURCE
OF LAW
Section 12 of the Local Court Act provides:
12. (1) Subject to the provisions of this Act, a local court shall
administer- Law to be administered (a) the African customary law
applicable to any matter before it in so far as such law is not
repugnant to natural justice or morality or incompatible with the
provisions of any written law; (b) the provisions of all by-laws and
regulations made under the provisions of the Local Government
Act and in force in the area of jurisdiction of such local court; and
Cap. 281 (c) the provisions of any written law which such local
court is authorised to administer under the provisions of section
thirteen.
(2) Any offence under African customary law, where such law is
not repugnant to natural justice or morality, may be dealt with by a
local court as an offence under such law notwithstanding that a
similar offence may be constituted by the Penal Code or by any
other written law:
Provided that such local court shall not impose any punishment for
such offence in excess of the maximum permitted by the Penal
Code or by such other written law for such similar offence.
 CUSTOMARY LAW AS A
SOURCE OF LAW
Section 16 of the Subordinate Court Act provides:
Subject as hereinafter in this section provided, nothing in this Act
shall deprive a Subordinate Court of the right to observe and to
enforce the observance of, or shall deprive any person of the benefit
of, any African customary law, such African customary law not being
repugnant to justice, equity or good conscience, or incompatible,
either in terms or by necessary implication, with any written law for
the time being in force in Zambia. Such African customary law shall,
save where the circumstances, nature or justice of the case shall
otherwise require, be deemed applicable in civil causes and matters
where the parties thereto are Africans, and particularly, but without
derogating from their application in other cases, in civil causes and
matters relating to marriage under African customary law, and to the
tenure and transfer of real and personal property, and to inheritance
and testamentary dispositions, and also in civil causes and matters
between Africans and non-Africans, where it shall appear to a
Subordinate Court that substantial injustice would be done to any
party by a strict adherence to the rules of any law or laws other than
African customary law:
CUSTOMARY LAW AS A SOURCE
OF LAW
Provided that (i) no party shall be entitled to
claim the benefit of any African customary law, if
it shall appear, either from express contract or
from the nature of the transactions out of which
any civil cause, matter or question shall have
arisen, that such party agreed or must be taken
to have agreed that his obligations in connection
with all such transactions should be regulated
exclusively by some law or laws other than
African customary law;
(ii) in cases where no express rule is applicable
to any matter in issue, a Subordinate Court shall
be guided by the principles of justice, equity and
good conscience.
 INTERNATIONAL LAW AS A
SOURCE OF LAW
International law may be described as a body of rules that determine how
sovereign States conduct themselves towards each other and towards each
other’s subjects.
International law has several areas of specific focus including international
human rights law; international humanitarian law; international trade law;
international business law; international investment law; international
economic law etc.
The principles applicable in all these areas are drawn from either
international customary law or bilateral or multilateral agreements. For this
reason, international law is divided into two main categories namely
customary international law and the law of bilateral or multilateral
agreements. But there are also sub categories exist. These include Public
international law and private international law.
 INTERNATIONAL LAW AS A
SOURCE OF LAW
Bilateral and multilateral agreements are a source of law
in Zambia only if they have been domesticated.
Domestication simply means according a bilateral or
multilateral agreement the force of law so as to make it
enforceable in the courts of law. This is achieved through
the enactment, by Parliament, of the relevant enabling
legislation.
It is worth noting that no bilateral agreement can be
domesticated unless it has been ratified or acceded to by
the Zambian Government.
See: Zambia Sugar Plc vs Fellow Nanzaluka (No 82 of
2001)
Attorney General vs. Roy Clarke (2008) ZR 38
TEXT BOOKS AS A SOURCE OF
LAW
Modern textbooks written by
eminent legal scholars are often
resorted to for a variety of legal
principles in various areas of law,
as a matter of last resort.
END OF LECTURE
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