La interacción en la infancia

A villager in some remote p a r t of Zambia ma y be astonished to hear that a Zambian ma n was punished for marrying two women, but as I have said those who adopt the English law will be dealt accordingly.4

Ihe English Law (Extent of Application) Act, is, however, only an

Profession; Harvard UP, 1967, p. 96.

2. (1978) ZR 4

4.

5. NR:

3. NR: 1918, No. 10, Cap. 211.

l o c . cit. , per N g u l u b e , D C J at p . 6.

1957, No. 65, Cap. 105; s u p r a , p. 70.

was introduced by British administrators in Africa, e.g. in Tanganyika and NR. 2 After Independence such legislation was retained or fresh one

3 4

enacted, e.g. in Kenya and The Gambia. Political organization is an area in which English statutes played no role during the colonial era and in which they will not be envoked to-day or in the future.

(b) The Application of Common Law and Equity.

The English Law (Extent of Application) Act, provides that common law and equity in force on the 17th August, 1911, shall be applicable in Zambia; that is that the date of reception applies to statutes, common law

5 6

an d doctrines of equity. The Interpretation Act, 1964 defines common law to m ean 'the Common Law of England' 7 and this is judge-made law, that is the

substantive rules and rules of procedure developed and administered by the English common law courts of Common Pleas, of Exchequer an d King's Bench.

The rules administered by these Courts were derived from the general law and customs of the Realm of England. As regards the common law referred to in sec. 2(a) of the English Law (Extent of Application) A c t and sec. 3 of the Interpretation Act ma y mean judge-made law as described above, and/or residuary concepts constituting the real essence of the common law edifice:

the right to present one's case in an open court, or freedom of contract, o r of assembly and association. In NR, however, the question was not of

1. Tanganyika: Societies Ordinance, 1954, No. 11. Cap. 337.

2. NR: Societies Ordinance, 1955, No. 43, Cap. 105.

3. Kenya: Societies Act, 1968, No. 4.

4. The Gambia: Societies Act, 1971, No. 5.

5. A l l o t t , A.N., "Authority of English Decisions in Colonial Courts"

J A L , Vol. 1, No. 1, 1957, p. 25.

6. Zambia: 1964, No. 60.

7. ibid. sec. 3. Article 138 of the Constitution of Zambia Act, 1973, contains some definitions, however, these do not include such words or phrases as 'law', 'common law' o r 'equity.

Similarily Art. 2(1) of Cap. 1, A p p l i e d Laws, wh i c h defines 'existing law' does not define

'common law' or 'equity'.

the content of common law, but to whom it applied. D i d it, for instance, apply to natives? In Rex, v. Petrus Johannes de J a g e r ,^ the appellant was convicted under sec. 53A of the Penal Code, 1930, for being in possession of p r o h i b i t e d religous books. He contended that under Art. XXI of the NR Or d e r in Council, 1924, the law of NR was to be enforced in conformity w i t h the substance of the common law, the doctrines of equity and the statutes of general application in the UK. He contended further that the proh i b i t i o n of the books in issue h ad the effect of denying the natives of N R freedom of conscience and thus repugnant to English law on religious freedom. The judge hearing the appeal observed, inter a l i a , that

I gather that the case for the Appel l a n t is concerned n o t so much- with, its effect on the European element o f the population, as with, the consequences on the N ative inhabitants, and here I p ause in uncertainity as to the number of British subjects among t h e m ...

Be that as it may, the question arises, w hat is the statute law of England relating to freedom of

religion w h i c h may be said to apply by express words o r necessary intendment to His Majesty's subjects resident in, or resorting, to this T e r r i t o r y ?2

His Lordship made reference to "mass of law bearing generally on the subject o f religion" and went on to say that in such matters, it might be taken that, subject to such, qualifications as local

circumstances m i g h t render necessary, "the general effect of these

statutes applies by necessary intendment to individuals being His Majesty's 3

subjects' in this: country." The natives of NR were not British subjects o r a s alternatively put, His Majesty's subjects; they were British Protected Persons:. According to the above reasoning, English statutes p r o t e c t i n g freedom of religion were not applicable to them;

mutatis m u t a n d i s w a s the common law applicable to them? Unlike the the statute l a w w h i c h wa s required to be applied subject to modification

1. (1935) NR L R 13.

2. i b i d . p e r Francis, J., at p. 22.

3. ibid. at p. 23.

96.

or qualification, there was neither a rule of the common law itself or of statute w h i c h required that the common law should be applied in NR subject to local conditions. Accordingly, European political parties emerged and operated without statutory regulation bu t under common law rules of freedom of expression, association and assembly.

Africans also began to organize and form political organization under the common law, that is, without statutory regulation, until 1955 when the Societies Ordinance was enacted: p r i m a f a c i e , that legislation qualified the common law freedom of association for b o t h the natives and the settlers although it was apparently used mainly in controlling African political organization.

One o f the difficulties encountered in trying to assess the effect of common law on Africans in NR arises from the fact that a

number of common law rules were embodied in legislation. For instance,

1 2

in R. v. Zulu & Others, the accused, members of the ZANC, were

■ ^ . — — ... ,K , m ,l ■ ■ ■ ■

charged w i t h conspiracy to injure the Ndola Municipal Council in its trade, contrary to sec. 358(4) of the Penal Code, 1930, by urging other people to boycott its beerhalls as protest, against the refusal by the Police authorities to allow: ZANC to h old a public meeting.

Applying the common law, the Magisrtrate h e l d that the Crown had to prove that the prin c i p a l object of the accused was to cause the injury

complained of, since the evidence disclosed that their intention was to protest against the refusal to hold the meeting and accordingly the accused h ad no case to answer. On appeal the Federal Court of Appeal h e l d that the law relating to conspiracy to injure a person in his trade was to b e found in sec. 358(4) of the Penal Code of NR, that while the p r i n c i p l e of legal interpretation of En g l i s h law applied

1. (1961) R & N L R 645.

2. s u p r a , p. 72.

(as required by sec. 4 of the Penal Code), the substance of the law laid down in the Ordinance was not affected thereby, and, that the immediate purpose of the actions of the accused was to injure the beerhall trade and therefore their ultimate purpose was irrelevant.

The case was directed to be remitted to the Magistrate with a direction that the Crown had made out a case sufficient for the accused to answer.

Consequently, political organizations in NR did not enjoy the same freedom 'under the law' as that enjoyed by political parties under the common law in the UK. The view was that the bulk of English law introduced in NR was intended to regulate the affairs of the white settlers, while local legislation was mainly for African administration.^"

Ihe law regulating political organization was, however, unique in that the 'political party' was originally a white settlers' institution,

regulated by the common law. It was only when militant A f r i c a n political organization turned the 'political party' into an African institution, that legislation intervened to regulate how that institution should be operated b y the Africans. The foundation of the political party in Zambia was the common law. The doctrines, of equity cited in sec. 2 of the English Law (Extent of Application) Act, mean in practical terms, the availability in the High. Court of equitable remedies such, as

specific performance, rescission, ratification, injunction.Although doctrines of equity did not play any role in the emergence of political parties in NR, some of these remedies are relevant to political party organization, for instance, an application could be made for an injunction to stop a political party acting illegally or arbitrarily towards the

2

applicant. The law of Zambia on political organization is a combination of statute law, common law and doctrines of equity. The following

section looks at customary law and political parties or organizations.

1. Melland, F.H., In WitGh-Bound Africa; Barnes & Boble, 1967, p. 307._{... . .k ....}

2. Infra, p. 251.

(c) Customary Law and Political Organization.

According to John Austin, law is a rule laid for the guidance o f an intelligent being by an intelligent being having power over him.'*’

This definition of law implies the existence of a political sovereign who the people in a centrally organized society are in the habit o f obeying in fear of sanctions. It is, therefore, not broad enough because it covers m a i n l y penal laws which are backed by sanctions and does not accommodate laws not promulgated b y a parliament and/or not backed b y s a n c t i o n s . In order to broaden the definition of law to include law not enacted b y a parliament, law has been defined to embrace 'traditional rule of the community; and it is enforced not by sanction prescribed ad ho c b y a sovereign, but one that is involved in the beliefs and practices o f the community'. 2 That definition embraces a rule made by a chief in a

non-centrally organized political system. Such rules and courts to enforce them 3

existed and still exist in Zambia before and after Independence. An all- embracing definition o f 'law' is probably that given by A.L. Goodhart:

"Law is any rule of h uman conduct which is recognised as being obligatory".4

The Orders in Council which introduced English law and p rocedures’*

in NR also provided for the observance of laws and customs of the indigenous peoples unless such laws o r customs were repugnant to natural justice or morality, or to any Order made b y H.M. in Council, or to any Proclamation

g

made under an Order. Local legislation was also required to respect 7

native laws or customs. The term 'customary law' is used to m ean a number

1. Austin, J. , Lectures on Jurisprudence or Philosophy of Positive L a w ; Murray, London, 1885, 5th e d . , p. 86.

2. Hartland, E.D., Primitive L a w ; Metheun, 1924, p. 137.

3. Gluckman, M . , Judicial Process Among the Barotse of Northern R h o d e s i a ; M anchester UP, 1966, p. 2. See also Wallace, L. , "Native A dministration in Northern Rhodesia", J M A S , 1922.

4. Goodhart, A.L., "The Importance of Definition of Law"; J A A , Vol. 3, No. 3, 1951.

5. UK: Northern R h o d e s i a Order in Council, 1911, Art. 21(2).

6. Northern Rho d e s i a Order in Council, 1924, Art. 36.

7. ibid. Art. 22; BFSP, 1924, Vol. 119, p. 41.

of different things. Often customary law is associated with pre-colonial legal forms and with the modified and/or distorted versions that survived colonial rule. These rules are viewed as 'customary law/ for two reasons which, though theoretically independent, are often erh]Derically connected.

First, these rules are predominantly oral although some have been reduced

to written text. Second, they derive ultimately from social relations and from sources of authority that are not those of the colonial or the

neo-colonial state. Accordingly, customary law is a body of rules which are obligatory to or recognized as obligatory by, members of a society.

This perception of customary law implies historical continuity.

There are several theories of the origins of customary law. One of these argues that customary law implies historical continuity but that its origins are actually relatively recent and generally accompanied and formed part of colonial domination.^- The other view sees customary law simply as 'folk law in the process of reception' of ethnic groups allowed to operate under a colonial state after those groups had been incorporated within a larger caltural and social whole. 2 This view postulates customary

law not originating before, but during the colonial era, which is tantamount to implying that Africans ha d no indigenous laws before the advent of

colonialism. The provisions of the Orders in Council cited on the previous page give a clear indication that native laws and customs existed before the advent of colonial rule; hence the requirement that the Courts

established by the colonial administrators could obtain the assistance of one or two native a s s e s s o r s , to advise them upon native law and custom

3