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Law, religion and human rights in Zambia: The past, present and the practice

Abraham Mwansa

Managing Partner of AMC Legal Practitioners; member of the Council of the Law Association of Zambia; Convenor, Human Rights Committee of the Law Association of Zambia

SUMMARY

Zambia, a former British colony, is a unitary state with a population of about 10 million inhabitants. Zambia has a political system that embraces both the presidential and parliamentary systems of government. A member of parliament, once elected as such, may be appointed to cabinet. The religious demography is mostly Christian, with the other religions existing side by side. Zambia has a Bill of Rights enshrined in the Constitution, and amongst the rights guaranteed is the right to religion. The right to religion is therefore justiciable. Apart from the constitutionbal gaurantee, the right to religion is also enforced by the Human Rights Commission, the Police Complaints Authority, the Anti-Corruption Commssion, to mention but a few, as well as other institutions put in place by government for the enforcement of human rights. Under the Constitution, African traditional and customary law practices are only recognised to the extent that they do not conflict with written law. Despite this recognition, women and children have remained marginalised. Socio-economic rights are only directives of state principals which are not justiciable. The right to religion is justiciable. The right to religion, coupled with religious scruples and the regulation of the internal affairs of churches, mosques, religious schools and such by the government leaves little to be desired. Christianity is favoured. Zambia was declared a Christian nation by the second republican President, Dr Frederick Chiluba. Practice has shown that, in as much as the Constitution guarantees freeedom of religion, Zambian leaders have more often than not favoured those with an inclination towards Christianity.

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* LLB (Zambia), LLM (Human Rights and Démocratisation in Africa) (Pretoria); abramwa@yahoo.co.uk
1 Art 1(3) provides that the Constitution is the supreme law of Zambia and if any other law is inconsistent with the Constitution, that other law shall, to the extent of the inconsistency, be void.
2 Part III of the Zambian Constitution constitutes the Bill of Rights and its enforcement provisions.
3 A Mwansa 'Zambia at a glance' in G Robbers (ed) Encyclopedia of world constitutions (2006) 1030.         [ Links ]
4 As above.
5 As above.
6 Part VIII of the Constitution establishes the local government system pursuant to which the Local Government Act ch 281 of the Laws of Zambia was enacted. The Act defines the manners and instances upon which a district may be established.
7 Art 28 of the Constitution.
8 Art 125 establishes the Human Rights Commission and guarantees its autonomy.
9 Sec 9 of the Act.
10 Sec 10(4) of the Act provides that, subject to subsec 5, the Commission may, where it considers it necessary, recommend the release of a person from detention; the payment of compensation to a victim of human rights abuse, or to such victim's family; that an aggrieved person seek redress in a court of law; or such other action as it considers necessary to remedy the infringement of a right. This is quite at variance, eg, with what obtains in Uganda where the Human Rights Commission has quasi-judicial powers.
11 Sec 10(5) of the Act.
12 Sec 5(2) of the Act.
13 Sec 22 of the Act.
14 Sec 26 of the Act.
15 Established by sec 20(1) of the Judicial (Code of Conduct) (Amendment) Act 13 of 2006. There have been complaints, however, from various quarters of society that the authority is equally toothless and lacks the necessary authority to deal with matters presented to it, and therefore another entity to waste national resources.
16 Art 25 of the Constitution provides that '[n]othing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of articles 13, 16, 17, 19, 20, 21, 22, 23 or 24 to the extent that it is shown that the law in question authorises the taking, during any period when the Republic is at war or when a declaration under article 30 is in force, of measures for the purpose of dealing with any situation existing or arising during that period; and nothing done by any person under the authority of any such law shall be held to be in contravention of any of the said provisions if it is shown that the measures taken were, having due regard to the circumstances prevailing at the time, reasonably required for the purpose of dealing with the situation in question'.
17 Art 28 of the Constitution of Zambia provides: '(1) Subject to clause (5), if any person alleges that any of the provisions of articles 11 to 26 inclusive has been (protective provisions), is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply for redress to the High Court which shall: (a) hear and determine any such application; (b) determine any question arising in the case of any person which is referred to it in pursuance of clause (2); and which may make such order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of articles 11 to 26 inclusive. (2)(a) If in any proceedings in any subordinate court any question arises as to the contravention of any of the provisions of Articles 11 to 26 inclusive, the person presiding in that court may, and shall if any party to the proceedings so requests, refer the question to the High Court unless, in his opinion the raising of the question is merely frivolous or vexatious. (b) Any person aggrieved by any determination of the High Court under this Article may appeal therefrom to the Supreme Court: Provided that an appeal shall not lie from a determination of the High Court dismissing an application on the ground that it is frivolous and vexatious. (3) An application shall not be brought under clause (1) on the grounds that the provisions of articles 11 to 26 (inclusive) are likely to be contravened by reason of proposals contained in any bill which, at the date of the application, has not become a law. (4) Parliament may confer upon the Supreme Court or High Court such jurisdiction or powers in addition to those conferred by this article as may appear to be necessary or desirable for the purpose of enabling that court more effectively to exercise the jurisdiction conferred upon it by this article or of enabling any application for redress to be more speedily determined.'
18 Art 23(4)(d) of the Constitution.
19 Ch 28 of the Laws of Zambia.
20 Sec 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.'
21 Art 23 of the Constitution provides: '(1) Subject to clauses (4), (5) and (7), a law shall not make any provision that is discriminatory either of itself or in its effect. (2) Subject to clauses (6), (7) and (8), a person shall not be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority. (3) In this article the expression "discriminatory" means affording different treatment to different persons attributable, wholly or mainly to their respective descriptions by race, tribe, sex, place of origin, marital status, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description. (4) Clause (1) shall not apply to any law so far as that law makes provision (a) for the appropriation of the general revenues of the Republic; (b) with respect to persons who are not citizens of Zambia; (c) with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law; (d) for the application, in the case of members of a particular race or tribe, of customary law with respect to any matter to the exclusion of any law with respect to that matter which is applicable in the case of other persons; or (e) whereby persons of any such description as is mentioned in clause (3) may be subjected to any disability or restriction or may be accorded any privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description is reasonably justifiable in a democratic society. (5) Nothing contained in any law shall be held to be inconsistent with or in contravention of clause (1 ) to the exent that it is shown that it makes reasonable provision with respect to qualifications for service as a public officer or as a member of a disciplined force or for the service of a local government authority or a body corporate established directly by any law. (6) Clause (2) shall not apply to anything which is expressly or by necessary implication authorised to be done by any such provision or law as is referred to in clause (4) or (5). (7) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this article to the extent that it is shown that the law in question makes provision whereby persons of any such description as is mentioned in clause (3) may be subjected to any restriction on the rights and freedoms guaranteed by articles 17, 19, 20, 21 and 22, being such a restriction as is authorised by clause (2) of article 17, clause (5) of article 19, clause (2) of article 20, clause (2) of article 21 or clause (3) of article 22, as the case may be. (8) Nothing in clause (2) shall affect any discretion relating to the institution, conduct or discontinuance of civil or criminal proceedings in any court that is vested in any person by or under this Constitution or any other law.'
22 Local Courts Act, ch 36 and Intestate Succession Act ch 59 of the Laws of Zambia are not friendly in their provision and application against women and children. The practice has shown that men are favoured above women and children. Eg, long before the enactment of the Intestate Succession Act, and this remains the law, the High Court in the case of Martha Mwiya v Alex Mwila (1977) ZR 113 (HC) decided that there was no Lozi custom, one of the tribes in Zambia, which upon divorce compels a husband to share property acquired during the existence of the marriage.
23 The author's personal experience at Legal Resources Foundation, Zambia, where he served as Principal Advocate.
24 Art 26 of the Constitution is currently the only provision that provides for the protection of young persons against child labour.
25 This has mainly been the call by various NGOs, especially women's NGOs.
26 Ontario Human Rights Commission http://www.ohrc.on.ca/english/publications/ (accessed 15 February 2008).
27 Arts 11 & 21 of the Zambian Constitution.
28 The Lesbians, Gays, Bisexual and Transgender Association (LEGATRA).
29 See http://www.zamnet.zm/ or http://www.mask.org.za/sections/africapercountry.htm (accessed 21 September 2003).
30 These sections in the Penal Code deal with offences against morality.
31 As above.
32 Ch 87 Laws of Zambia.
33 Secs 156 & 394 Penal Code.
34 In 1993, the United Nations Commission on Human Rights declared that the prohibition against sexual discrimination in CCPR includes discrimination on the basis of sexual preference. See http://www.pdhre.org/rights/sexualorientation/html (accessed 21 September 2003).
35 Afronet Zambia Human Rights Report (2002) 94.
36 Part IX of the Constitution provides for Directives of the State Policy and duties of a citizen and art 111 particularly states that Directives are not justiciable.
37 A government willing to enforce the socio-economic rights of its citizens has to undertake measures within its available resources to achieve the progressive realisation of the rights and not to postpone their realisation.
38 1998 1 SA 765 (CC).
39 As above. See also De Waal et al The Bill of Rights handbook (2001) 441.
40 The Wila Mung'omba-led Constitutional Review Commission incorporates socio-economic rights under the Bill of Rights of the draft Constitution currently under debate.
41 Art 19 reads: '(1) Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of conscience, and for the purposes of this article the said freedom includes freedom of thought and religion, freedom to change his religion or belief, and freedom, either alone or in community with others, and both in public and in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance. (2) Except with his own consent, or, if he is a minor, the consent of his guardian, a person attending any place of education shall not be required to receive religious instruction or to take part in or attend any religious ceremony or observance if that instruction, ceremony or observance relates to a religion other than his own. (3) A religious community or denomination shall not be prevented from providing religious instruction for persons of that community or denomination in the course of any education provided by that community or denomination or from establishing and maintaining instructions to provide social services for such persons. (4) A person shall not be compelled to take any oath which is contrary to his religion or belief or to take any oath in a manner which is contrary to his religion or belief. (5) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this article to the extent that it is shown that the law in question makes provision which is reasonably required - (a) in the interests of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedoms of other persons, including the right to observe and practice any religion without the unsolicited intervention of members of any other religion; and except so far as that provision or, the thing done under the authority thereof as the case may be, is shown not to be reasonably justifiable in a democratic society.'
42 See n 17 above.
43Sec 131 Penal Code.
44 Sec 128 Penal Code.
45 Sec 129 Penal Code.
46 Sec 130 Penal Code.
47 Sec 32 Extradition Act.
48 See art 75(2) of the Constitution; sec 25 of the Electoral Commission. In the case of Mailoni Mushala & Moses Rindai Chisamba v Electoral Commission of Zambia and the Attorney-General SCJ 11 of 2008, the Supreme Court of Zambia decided that it was not unconstitutional for the prisoners to be denied the right to vote.
49 Sec 200 Prisons Act; ch 97 Laws of Zambia.
50 The phrasing of the declaration of Zambia as a Christian nation in the Preamble of the draft Constitution is not any different from the current one.
51Zambia Democratic Congress v Attorney SCZ Judgment 37 of 1999.
52 From 1964, when Zambia attained independence, Zambia enjoyed multi-party politics until 1972 when a one-party state was assumed. This period is referred to as the First Republic. The one-party state period from 1972 to 1991, when Zambia reverted to multi-partism, is referred to as the Second Republic and the period from 1991 to date is referred to as the Third Republic.
53 V Seshamani 'A Hindu view of the declaration of Zambia as a Christian nation' http//www.christianitytoday.com/ct/2000/January (accessed 6 August 2008).
54 As above.
55 See n 53 above.
56 Manja Kamwi, Information Officer MS Zambia, quoting Prof Carlson Anyangwe: 'We should behave like Christians - not proclaim it' MS.dk/sw30785.asp (accessed 6 August 2008).
57 As above.
58 Speaking in Ndola at the occasion to commemorate the African Methodist Episcopal Church (AMEC) Founder's Day at Chipulukusu congregation, the then Copperbelt Province Minister George Mpombo, now Energy Minister, in a speech read for him by Ndola mayor Zinho Latife, urged the church in Zambia to cultivate a spirit of unity based on the teachings of Jesus Christ. He said that unity with people worshipping God together and asking for Christ's guidance was cardinal to the church holding together.
59 This was an association that was formed to promote the interests of lesbians, gays and bisexual individuals in Zambia.
60 See n 29 above.
61 See n 56 above.
62 As above.
63 The Minister responsible has the power to declare any day a public holiday.
64 Ch 119 Laws of Zambia.
65 Sec 8 of the Act.
66 Sec 13(1) Societies Act.
67 Sec 17 of the Act falls under Part III of the Act that provides for duty of societies to furnish information to the Registrar.
68 Under secs 19 & 20 of the Act, the Registrar or an authorised officer may call for certain of the specified documents to be furinished by a society.
69 Sec 13(2) Societies Act.
70 The Lenshina sect was disbanded by UNIP government in 1964 for unlawful religious acts. Mama Lenshina was their spiritual leader from the Chinsali district. The sect came back into the country during the second republican government of former President Chiluba. They have pledged to work with Mwanawasa's government.
71 (1967) ZR 145 (HC).
72 310 US 686 (1940).
73 June Zambia News Agency, Zambia 27 November 2007.