The Dual Legal System and Its Effects in the Administration of Justice in Zambia

Abstract

This article highlights the lack of uniformity in the administration of justice, mainly where African customary law needs to be administered by superior courts on appeal from the local courts. Suffice it to state that this scenario results from conflicts between the imported English law and African customary law and within the African customary laws themselves. For instance, marriage in Zambia is governed by the applicable Zambian customary and the Marriage Act, Chapter 50 of The Laws of Zambia, which reproduces the essential elements of English law. One would, for instance, encounter a conflict of laws if one of the parties at the time of contracting a customary marriage was below the age of 16 years and then decided to convert their marriage into a statutory one at a later stage. The issue is whether such a marriage should be considered valid, given that it was constituted under customary law when one of the parties could not marry under the statute. The article will also highlight the argument of which African customary law must prevail in administering justice when there is a conflict between one customary rule or practice against another. When such a conflict arises, the effect on the Judiciary is that the Court would be in a dilemma as to which customary rule or practice must prevail over the other. Currently, in Zambia, no statute guides what should happen when conflict occurs between two or more customary practices or rules. The result is that African customary law is disregarded because there is no certainty as to which customary law should prevail in conflict. The article will highlight such problems and prescribe possible recommendations, solutions, or remedies to the situation so that the law is specific and uniform.