By Munshya wa Munshya
AFTER THE August 2016 elections in Zambia, legal and constitutional topics became the order of the day. With the prevalence of social media, several commentators emerged on the topics of the law, the constitution and everything legal. This was a very healthy debate. For its part, the Law Association of Zambia issued a directive reminding Zambian legal practitioners it licences to stop commenting on legal subjects. Both the Law Association of Zambia Act and the Legal Practitioners Act and the regulations made under these acts ban lawyers from commenting on legal matters. The Law Association of Zambia’s directive was aimed at licensed legal practitioners as it lacks the mandate to regulate politico-legal speech in the wider sense. There was a sense by many that political and constitutional discussions were not being helpful at all. In fact, it did seem like anyone could just make up stuff and as long as they can defend their position, they could justify their position as sound constitutional law. The debate that followed was dramatic and occasionally antagonistic. After the elections, it seems politico-legal speech has died down and citizens have gone back to their ways: lawyers are back to practice and everyone else has gone back to their various businesses. The danger posed by the electoral aftermath and its debate is that people could begin getting discouraged at the law in general. Legal laymen and women might begin thinking that the law is quite uncertain. Such sentiments are not justifiable, however.
There is more to the law than just arguments about constitutional law. The law is far broader than the arguments for or against the various constitutional positions. The constitution is not the only law there is. For those contemplating a career in law, they need to know that there is more to it than just what we saw this past August. I wish to provide a few notes on the various types or kinds of law. The qualifying law degree in
Zambia, Canada, and England and Wales is known as the Bachelor of “Laws”. Note that the word “laws” is plural and not singular. This tells us that a career in law, or the studying of law in university is not just about one aspect of the law. It is expected that by the time a graduate completes their studies, they will have been grounded in more than one law. Constitutional law could be the starting point since we have already experienced a lot of it in view of the August elections. Constitutional law deals with the relationship of state institutions to the governed. It describes the organs of the state and the powers that these organs have and how these organs acquire that power. Constitutional law is perhaps the most visible in our country because of the visibility of state institutions. Constitutional law is also visible due to its intersectionality with politics. Each time we go to elections, we are rehearsing and rehashing the principles of constitutional law. Like politics, constitutional law attracts the most arguments, dissentions and dissections. The next area of law is criminal law. This is another type of law that is very visible in popular culture. Just look at the television series and you will find several programs and movies based on the myths of criminal law. In the Zambian context, criminal law is primarily domiciled in the Penal Code. Family law is concerned with the father, mother, and children, as the name suggests. It also deals with issues such as marriages, birth, death and divorce. Family law is complex and could be further dissected into various parts. Of particular interest in Zambia’s family law are customary laws and practices. That being the case though, most principles of family law are still derived from our common law tradition inherited from old England and Wales. Canon law is the law governing the churches particularly the Church of England and the Church of Rome. It would be a stretch to apply principles of Canon Law to independent churches in Zambia as they do not have elaborate structures. I am not familiar with any legal
practitioner in Zambia practicing in this area of law, but the Church of Rome does have its Canon experts in its Zambian branch. What happens to people’s wealth after they die? How does wealth transfer from one generation to another? Estate and succession law deals with these questions. In Zambia, the Chiluba government tried to modernise and simplify this area of law. However, reforms are still needed to make it more efficient. Estate law intersects customary practices, testate and intestate situations. This is one exciting area of legal practice. Land law concerns one of the most important human commodities: land. How does one acquire land? And after they acquire it how do they transfer it to another? Land law itself is not very complicated, what makes it more complicated is when you have to deal with the buying and selling of it. This is also known as conveyancing law. Several reforms have been proposed in this area and more reforms are needed. Zambians make agreements all the time. Which ones of those agreements should be honoured and which ones should not be honoured? The area of law that deals with answering this question is the law of agreements, or as it was called a millennium ago: Contract Law. You cannot expect the courts to recognise and force compliance of every agreement people make in Zambia. If X agreed to pay their daughter K2.00 if she passes Grade 7, can she take X to court if after passing, X does not give her the K2.00? How does the law recognise what is enforceable? Supposing a person brews Tobwa but they use the wrong herbs in the concoction, if Mr. Sakala drinks this poisoned Tobwa, does the brewer owe Mr. Sakala anything? This area of law that deals with this is tort law or simply the law of negligence. This area of law I would also call it the law of the neighbour: we owe a duty to ensure that our neighbours are not “killed” by our actions! I have no space to comment on all the various types of the law, they are many. For now, a clear picture has emerged: the law is far much more than the constitutional discussions we had in August. Hopefully next week we can discuss a few more areas.