By: Robert Farbman
Volume X – Issue I – Fall 2024
I. INTRODUCTION
Zambia operates with two legal systems: a formal system based on British common law and a traditional system rooted in customary practices governed by tribal chiefs. The formal courts aim to provide consistent legal decisions based on legislature and judicial precedent, but are often inaccessible to rural populations due to geographical and resource limitations. [1] This manifests itself as a lack of physical resources at courts, a lack of courts in rural areas, and unaffordable legal representation, among other issues. [2] In contrast, traditional courts offer culturally relevant justice but can conflict with constitutional protections, especially regarding women's rights and human rights. [3] However, for most of Zambia’s primarily rural and impoverished population, traditional courts are often the first and only option for justice. [4]
To address these challenges, there are multiple proposed solutions. These include government efforts to expand the reach of formal courts in rural areas, partnerships with traditional systems to enhance access to justice, and initiatives encouraging pro bono legal work to support underserved communities. These solutions aim to ensure greater legal access while respecting the role that traditional courts and their leaders play in Zambian society. While these efforts have had some success, many continue to be strained by a severe lack of funding and small scale limitations. That being said, the projects with the most potential are those that make efforts to coordinate with local and traditional officials, while delivering on the ground resources to rural communities. By focusing on solutions that are built on these ideas, Zambia can begin to move towards a more equitable justice system.
II. BACKGROUND ON TRADITIONAL AND FORMAL LEGAL SYSTEMS
I. Traditional Legal Systems and Customary Law
The traditional legal system in Zambia predates the colonial era, and plays a vital role in the day to day lives of Zambians across much of the country, especially in rural areas that lack formal legal resources. Traditional courts primarily handle civil issues, such as divorce, theft, defamation of character, and land disputes. [5] These courts are run by tribal chiefs and local leaders, who use an unwritten and orally transmitted body of norms and practices referred to as customary law to resolve disputes. [6] One primary feature of this traditional court system is a focus on reconciliation and restorative justice, helping participants find solutions that can help deliver justice without destroying the relationships that are often necessary for survival in rural communities or resorting to imprisonment. [7] This emphasis on restoring social relationships often makes them more culturally relevant and accessible to rural populations compared to the formal legal system. However, the absence of written statutes and the subjective nature of customary rulings lead to inconsistencies and uncertainty, particularly when these rulings contradict national laws. Although the formal law and its rulings technically trump traditional court rulings, this is often not the case due to a lack of communication or effective enforcement. [8]
Criticism of traditional courts often focuses on human rights violations, particularly in cases involving women’s rights. These courts frequently uphold patriarchal norms that disadvantage women in matters like inheritance, land ownership, and divorce. [9] For example, in some tribes, women may be denied equal rights to inherit property, despite protections offered by the Zambian constitution. In addition, traditional courts often operate with limited oversight, and although there is technically an appeals process to the formal court system, many people in rural areas are unaware of this option or lack the resources to pursue it, and even if these appeals are successful, it is difficult to enforce formal court decisions on a local level, meaning that the ruling of the traditional court is most likely to impact the realities on the ground. [10]
ii. The Formal Legal System and Colonial Influence
Zambia’s formal legal system is based on the British colonial framework of common law established in the late 19th and early 20th centuries during British rule. The introduction of British common law during the colonial era created a structured legal system focused on governing commerce, governance, and crime. [11] After Zambia’s independence in 1964, this legal structure was largely retained, and today it includes a hierarchical system consisting of local courts, high courts, and the Supreme Court, all tasked with applying statutory law passed by Zambia’s parliament. [12] The formal courts are intended to provide consistent legal outcomes and to safeguard constitutional protections, including rights to equality before the law, property rights, and human rights. [13] However, due to a massive lack of funding, the formal court system has failed to expand effectively into rural areas, where a majority of the Zambian population resides. [14]
Efforts by the Zambian government to expand access to the formal justice system have included initiatives to build more courts in rural areas, projects increasing the usage of alternative dispute resolution, and the promotion of legal education. [15] However, these initiatives face significant limitations due to a shortage of resources and a lack of legal professionals across the entire country, especially considering the concentration of lawyers in urban centers. [16] Due to these constraints, many rural communities continue to rely on traditional courts, which are perceived as more culturally relevant and accessible. This reliance poses challenges when customary rulings conflict with constitutional protections, especially regarding gender equality and human rights, which are better addressed in formal courts.
III. CONFLICT/COOPERATION AND CHALLENGES OF THE TRADITIONAL SYSTEM
i. Jurisdictional Overlap and Inconsistent Outcomes
One issue arising from Zambia’s dual legal system is the jurisdictional overlap between traditional and formal courts. Traditional courts generally handle civil matters such as divorce, land disputes, and inheritance. However, the informal nature of these courts, combined with their reliance on unwritten customary law, often leads to inconsistent legal outcomes when compared to the more structured and codified formal legal system. [17] This leads to a lack of consistency not only between the formal and traditional system, but across traditional courts as well, as the oral unwritten law is applied at the discretion of the tribal chiefs. This lack of regulation raises concerns about accountability for traditional court decisions, with major implications for fairness and human rights. [18]
ii. Human Rights and Women’s Issues
One of the primary concerns with the traditional system is its disproportionate negative impact on vulnerable groups, particularly women. This issue is exacerbated by a lack of legal literacy and access to the formal system, which is surrounded by paywalls that make it inaccessible for most vulnerable Zambians. [19] Zambia has some of the highest rates of gender based violence in the world, and many of these cases often end up in male chief run traditional courts with inconsistent standards, failing to deliver justice to these women. [20] According to Restless Development, a Zambian NGO, “The dual structure of statutory law and customary law, has perpetuated gender inequality. Rights which are supposed to be protected under statutory law, are not necessarily observed and women endure unfair treatment in terms of child marriage, unequal distribution of property, and more under the customary law.” [21] According to Restless Development, the lack of application of statutory law is one of the main causes of the continued massive gender inequality in Zambia. [22] Even when legislation is passed to protect women or other vulnerable groups, such as the creation of an independent Ministry of Gender, the lack of application at a local level in much of rural Zambia means that the vulnerable parties most at risk rarely benefit from progressive legislation.
In addition to the lack of implementation of national policy, the male dominance of the traditional court system and its patriarchal structure lead to worse outcomes for women and vulnerable groups. According to the 2018 Zambian State of Human Rights Report by the Zambian Human Rights Commission, although property rights are guaranteed for all, evidence shows that women do not have the same property rights as men in practice. [23] One reason for this disparity is the built in gender roles that dominate rural societies and their customary laws. According to the UN Women’s Report Network, traditional courts are predominantly male run, and traditionally, women are not supposed to challenge men, which makes defending oneself in court a difficulty. [24] Combined with a lack of application of national legislation and human rights standards, this absence of female leadership and authority in the traditional system contributes to discriminatory outcomes. That being said, considering the financial barriers to accessing the formal system and the shortage of courts and lawyers in rural areas, traditional courts are often the only choice for women seeking justice.
IV. EVALUATING CURRENT AND PROPOSED POLICIES AND SOLUTIONS
Throughout Zambia, there exist a multitude of proposed and active solutions working towards resolving the current gaps arising from the conflict between the traditional and formal system, as well as the general lack of access to justice in the country. These solutions include government initiatives, private projects, and NGO sponsored programs. An exploration of some of the most relevant and successful initiatives can give us insight into the path forward, and how the legal landscape in Zambia will change in the coming years. Based on the following review, initiatives that include coordination with local and traditional court officials, while having steady sources of funding emerge as the most likely to have success. In this context, those initiatives include One Stop GBV centers, Fast Track GBV courts, projects to increase legal professionals, and new reforms to legal aid.
i. Government Programs/Initiatives
Some of the most relevant initiatives to increase access to justice and address the gap between the formal and traditional system come directly from the government. One such attempt has been the launch of multiple fast-track courts for gender based violence, in collaboration with the United Nations Development Programme. [25] These fast track courts are meant to make the process of dealing with gender based violence cases more efficient, while also spreading the resources more evenly across provinces. [26] Considering the prevalence of gender based violence in Zambia and the inconsistent application of justice for affected women in the traditional system, investing more government resources into fast track courts that can make the formal system more accessible for victims is promising. That being said, making sure that these courts are funded, spreading information about them, and addressing the high-cost barriers to participation will be essential to maximize impact.
Another relevant government program is the Enabling Access to Justice, Civil Society Participation and Transparency program, or EnACT, which is sponsored by the German Federal Ministry for Economic Cooperation and Development and the European union in collaboration with the Zambian government. [27] This project works with the Zambian Ministry of Justice to increase access for vulnerable groups through digital solutions and increased transparency. [28] The project is set to run from 2021 to 2026 and involves other funders as well, such as the Danish Institute for Human Rights. However, three years down the line, there is little news or report of progress being made, or specific improvements from this program. Although information on many of these solutions is scarce, projects such as EnACT that don’t specifically focus on increasing access to justice on the ground are likely not having much of an impact on the day to day lives of most Zambians, for whom the lack of access to the formal system is most pressing.
ii. One Stop Centres
One popular solution across Zambia is the implementation of One Stop Centres, meant to provide legal resources to rural populations in an easily accessible manner. One example is the GBV One Stop Centre in Kalimbula district, which was established to provide resources for survivors and community members, in collaboration with traditional leaders in the community. [29] The center will provide many different services, including education, under the Promoting Human Security Through Sustainable Resettlement Programme, with support of The UNDP. [30] This program is aimed at fighting the high rates of gender based violence in Zambia by providing legal resources and aid to victims in vulnerable communities. These one-stop centers have become increasingly popular, being implemented in provinces all across the country by both private and government entities. Considering the quick ramp up of well- funded centers, it will be interesting to see how this affects accessibility in the near future. However, this solution is easily replicable and expandable, which makes it particularly poised to be effective.
iii. Increasing Legal Professionals
Many attempts at increasing access to justice and the formal legal system center around addressing the severe lack of legal professionals and resources in Zambia, especially in rural areas. One such attempt, funded by the Danish Institute for Human rights, is aimed at connecting formally trained paralegals with traditional courts in the Southern and Eastern Provinces. [31] These paralegals are recruited from the areas they will serve, and are tasked with providing free legal resources, specifically aimed at women and the promotion of human rights. [32] In addition, these paralegals are training local court officials to recognize and deal with more serious cases that should be referred to the formal system. [33] As with many of these initiatives, there is little information on the success of this program. However, it promises to provide some benefit by addressing the lack of legal resources while specifically integrating into the traditional system, instead of ignoring it. If this project proves successful, it could point towards the importance of incorporating trained legal professionals into the traditional system and context as a method of improving outcomes for women and vulnerable populations in rural areas.
iv. Legal Aid
There are many programs that target the issue by focusing on increasing access to legal aid. One example of this comes with a new pro bono scheme from LAZ, the law association of Zambia. This new initiative lays out greater requirements for members practicing law in Zambia in terms of pro bono requirements. [34] This even includes extra credit for work done in rural and underserved areas to better distribute the pro bono work being done. [35] This new scheme holds the potential to make a big difference, but it will take time to see how it plays out. [36] Another example of programs focused on legal aid is a new initiative from The German GIZ, which created a three level training program for paralegals, so that they can provide free legal aid under the new National Legal Aid Policy passed in 2018. [37] According to GIZ, as of August 2023, 317 paralegals have been trained by them, and 104,000 Zambians have received free assistance from a paralegal under the new framework. [38] This program has a clear impact as can be seen in the numbers, and is a model for an effective attempt to increase legal aid services. It will be interesting to see how these numbers change, but this seems like a successful effort so far.
V. CONCLUSION
Zambia’s dual legal system provides two paths to justice, but the gaps between the formal and traditional systems continue to create significant challenges. While the formal system is designed to uphold statutory law and constitutional protections, it remains out of reach for much of the rural population due to geographic and economic barriers. At the same time, traditional courts offer a more accessible option but often perpetuate practices that conflict with national laws, particularly when it comes to women’s rights and human rights. Efforts to bridge these gaps are numerous - and government initiatives like fast-track courts and partnerships with NGOs to increase legal aid have made some progress. However, many programs are underfunded and underutilized, and as a result, many rural communities continue to rely on traditional courts, where outcomes can be inconsistent and accountability is limited. Moving forward, it will be crucial to focus on finding ways to better integrate the two systems, ensuring that justice is both accessible and aligned with Zambia’s constitutional commitments. Based on solutions covered in this review, focusing on projects that coordinate and integrate with traditional courts on the ground while providing day to day legal resources to vulnerable rural communities have the highest likelihood of making a real impact. In addition, expanding formal court coverage, improving oversight of traditional courts, and increasing legal resources in rural areas will be key steps in making justice truly equitable. Only by addressing these issues from both sides, encompassing direct government funding and organization of the judicial system and non-profit attempts to supplement and increase access to that system, can Zambia move toward a legal system that serves all its citizens, especially those who are most vulnerable.
Endnotes
[1 ]Venkateswaran, Baimu, and Matsuura, “Zambia Judicial Sector Public Expenditure and Institutional Review.”
[2] Venkateswaran, Baimu, and Matsuura.
[3] Venkateswaran, Baimu, and Matsuura.
[4] Venkateswaran, Baimu, and Matsuura.
[5] Manaleta, “Traditional Conflict Resolution Strategies among the Lozi Speaking People of Nasitoko Village of Mongu District in Western Province.”
[6] Venkateswaran, Baimu, and Matsuura, “Zambia Judicial Sector Public Expenditure and Institutional Review.”
[7] Manaleta, “Traditional Conflict Resolution Strategies among the Lozi Speaking People of Nasitoko Village of Mongu District in Western Province.”
[8] Venkateswaran, Baimu, and Matsuura, “Zambia Judicial Sector Public Expenditure and Institutional Review,” 38.
[9] Lieberman, “Zambia – Project to Increase Justice for Women in Traditional Courts.”
[10] Venkateswaran, Baimu, and Matsuura, “Zambia Judicial Sector Public Expenditure and Institutional Review.”
[11] Venkateswaran, Baimu, and Matsuura, 2022.
[12] Venkateswaran, Baimu, and Matsuura, 2022, 76
[13] Obrien Kaaba, The Challenges of Accessing Justice in Zambia, 2015.
[14] Venkateswaran, Baimu, and Matsuura, 2022, 78.
[15] Venkateswaran, Baimu, and Matsuura, 2022, 78
[16] Obrien Kaaba, The Challenges of Accessing Justice in Zambia, 2015.
[17] Venkateswaran, Baimu, and Matsuura, 2022, 21.
[18] Venkateswaran, Baimu, and Matsuura, 2022, 24.
[19] Obrien Kaaba, The Challenges of Accessing Justice in Zambia, 2015.
[20] Venkateswaran, Baimu, and Matsuura, 2022, 37
[21] Mtonga, Dennis, “The Zambian Gender Gap: Between Law and Custom,” We Are Restless, May 15, 2020, https://wearerestless.org/2020/03/23/the-zambian-gender-gap-between-law-and-custom/.
[22] Mtonga, Dennis, “The Zambian Gender Gap,” 2020.
[23] Zambia 2018 Human Rights Report, https://www.state.gov/wp-content/uploads/2019/03/Zambia-2018.pdf.
[24] Amy Lieberman, “Zambia – Project To Increase Justice For Women In Traditional Courts,” WUNRN, https://wunrn.com/2013/02/zambia-project-to-increase-justice-for-women-in-traditional-courts/.
[25] Chipili Makasa, “Anti-Gender Based Violence And User-Friendly Fast Track Court Launched In Mansa,” Luapula Provincial Administration, June 19, 2024, https://www.lua.gov.zm/?p=3352#:~:text=Chief%20Justice%20Dr.,Track%20Court%20in%20Mansa%20district.
[26] Chipili Makasa, “Anti Gender Based Violence and User Friendly Fast Track Court Launched in Mansa,” 2024.
[27] “Promoting Transparency, Participation and Access to Justice in Zambia,” GIZ, November 2023, https://www.giz.de/en/worldwide/137454.html.
[28] “Promoting Transparency,” GIZ, 2023.
[29] “Launched One Stop Centre Is a Key Node in Protecting GBV Victims in Resettlement Schemes,” UNDP, August 20, 2020, https://www.undp.org/zambia/stories/launched-one-stop-centre-key-node-protecting-gbv-victims-resettlement-schemes.
[30] Launched One Stop Centre,” UNDP, 2020.
[31] Amy Lieberman, “Zambia – Project To Increase Justice For Women In Traditional Courts,” WUNRN, https://wunrn.com/2013/02/zambia-project-to-increase-justice-for-women-in-traditional-courts/.
[32] Lieberman, “Project to Increase Justice for Women in Traditional Courts,” 2013.
[33] Lieberman, “Project to Increase Justice for Women in Traditional Courts,” 2013.
[34] LAZ Pro-bono Legal Services Scheme
[35] LAZ Pro-bono Legal Services Scheme
[36] LAZ Pro-bono Legal Services Scheme
[37] Giz, “Equal Justice for All – Free Legal Assistance in Zambia,” GIZ, 2023, https://www.giz.de/en/mediacenter/equal-justice-in-zambia.html.
[38] GIZ, “Equal Justice for All,” 2023.