Introduction

Access to Justice is a fundamental right recognized in all our jurisdictions. It can be easily
impeded by various factors such as case backlog, high costs of litigation, frequent adjournments,
etc. One of the ways of enhancing access to justice is through the use of Alternative Dispute
Resolution. Therefore, it is from this background this essay will dwell on a statement
“Alternative Dispute Resolution is an enhancement of access to justice in Zambia”

Alternative Dispute Resolutions

A dispute is indispensable part of societal interaction since inception of human settlement. But
before the establishment of courts and administration tribunal, and even after their establishment,
there have been other private tribunals, by which the society is trying to settle disputes. They are
called an Alternative Dispute Resolution (ADR) mechanism which is a generic name to refer
dispute settlement mechanisms other than courts and administrative tribunals. 1 Generally,
Alternative Dispute Resolution is the term which identifies a group of processes through which
disputes, conflicts and cases are involved outside of formal litigation procedures. Alternative
Dispute Resolution procedures include negotiation, mediation, conciliation, arbitration, mina-
trial or executive tribunal, structured settlement conference, Med-Arb and expert evaluation or
non-binding appraisal.2

However, in Zambia there are presently three main types of ADR techniques in use namely:
negotiation, conciliation/mediation and arbitration, of these three, mediation and arbitration are
most common forms of ADR in use.3 Therefore, ADR is one of the significant ways by which
access to justice can be enhanced. This is possible because in most ADR mechanisms such as
Mediation and Arbitration, parties themselves are actively involved in the resolution of their
disputes. When properly managed, Mediation and Arbitration tend to be much cheaper and
quicker than litigation, thereby making them more affordable and accessible to many people. 4

The enhancement of access to justice in Zambia through ADR

1
Scott Brown et-al, Alternative Dispute Resolution practitioner’s guide. (2001)
2
Newma, P (1999) Alternative Dispute Resolution. p. 8
3
Mwenda, S. W (2006) Paradigms of Alternative Dispute Resolution and justice delivery in Zambia. p 129
4
Justice Charles Kajimanga, Enhancing access to justice through ADR mechanisms-the Zambia experience.
presentation at the annual regional conference held at Southern Sun, Mayfair Nairobi, Kenya on 25-26 July, 2013
Like many other countries, Zambia also recognized ADR as one of the ways of enhancing access
to justice. Principally, as stated above the two ADR mechanisms namely, Mediation and
Arbitration were duly identified. Legislation was subsequently promulgated to govern the
application of Mediation and Arbitration in Zambia.
For this reason Mediation was introduced in Zambia through a Statutory Instrument. 5 Mediation
in Zambia is Court-Annexed and the High Court Rules provides as follows:6
“Except for cases involving constitutional issues or the liberty of an individual or an injunction
or where the trial Judge considers the case to be unsuitable for referral, every action may, upon
being set down for trial, may be referred by the trial Judge for mediation and where the
mediation fails the trial Judge shall summon the parties to fix a hearing date…”
In the Commercial Court, a decision to refer a matter to mediation is usually done at the
scheduling conference. And Oder 31, rule 57 states as follows:
“There shall be kept by the mediation office… a list of mediators who have been trained and
certified by the Court to act in this capacity with the field or fields of bias or experience
indicated against each of their names. The mediators shall be of not less than seven years
working experience in their respective fields.”
Currently, there are 120 mediators with experience in various fields who have been trained and
certified by the Court. The training is usually followed by a “Mediation Settlement Week” when
newly trained mediators are given an opportunity to mediate Court cases.8

As for arbitration, in Zambia we have had an arbitration statute 9 dating way back to 1933.
However, arbitration was only embraced in Zambia after the enactment of the Arbitration Act. 10
This Act11 repealed the Arbitration Act12of 1933 which, among other things, gave Courts wide
powers to supervise the arbitral process.

5
Number 71 of 1997
6
Order 31 rule 4 of the High court rules
7
Ibid
8
Supra (note 4)
9
Arbitration Act No. 3 of 1933
10
Number 19 of 2000
11
Ibid
12
No. 3 of 1933
Section 613 states that any dispute which parties have agreed to submit to arbitration may be
determined by arbitration. However, subsection 214 gives exceptions of matters which shall not
be capable of determination by arbitration. These include:
(a) an agreement that is contrary to public policy;
(b) A dispute which, in terms of any law, may not be determined by arbitration;
(c) A criminal matter or proceeding except in so far as permitted by written law or
unless the court grants leave for the matter or proceeding to be determined by
arbitration;
(d) Matrimonial cause;
(e) A matter incidental to a matrimonial cause, unless the court grants leave for the
matter to be determined by arbitration;
(f) The determination of paternity, maternity or parentage of a person; or
(g) A matter affecting the interest of a minor or an individual under a legal
incapacity, unless the minor or individual is represented by a competent person.
Furthermore, section 10(1)15 makes it mandatory for the court to stay proceedings in matters
which are subject of an arbitration agreement and refer the parties to arbitration. It is couched in
the following terms:
“A Court before which legal proceedings are brought in a matter which is the subject of an
arbitration agreement shall, if a party so requests at any stage of the proceedings and
notwithstanding any written law, stay those proceedings and refer the parties to arbitration
unless it finds that the agreement is null and void, inoperative or incapable of being performed.”

It is plain from Section 10(1) that where a dispute arises from a contract between parties which
contain an arbitration clause, Judges are obliged to refer the parties to arbitration unless the
dispute is not arbitrable or the arbitration agreement is null and void or inoperative. This
provision enables the Court to play a complimentary role in the arbitral process.
The Arbitration (Court Proceedings) Rules, 2001 govern applications made to the Court pursuant
to the arbitration Act. In addition to the High Court, “Court” also includes the Industrial
Relations Court, the Subordinate Court and the Lands Tribunal. In respect of the Industrial

13
Ibid
14
Section 6 of the Arbitration Act No. 19 of 2000
15
Arbitration Act No. 19 of 2000
Relations Court, rule 3 of the Industrial Relations Court (Arbitration and Mediation Procedure)
Rules, 2002 provides as follows:

“Where parties to a suit are of the opinion that the matter in issue in the suit should be referred
to an arbitrator for final resolution, they may apply to the Court, at any time before final
judgment, for an order of reference to arbitration.”

Where the parties apply for an order of reference under rule 3 the court may grant the order
stating the number of arbitrators.16 The rules also provide that the arbitrators shall be nominated
by the parties in such a manner as the parties may agree. 17 If the parties fail to agree on the
nomination of arbitrators or nominate an arbitrator who refuses to accept the nomination, the
court may be asked by the parties to appoint arbitrators in the matter4.18
Nevertheless, as in regard to mediation, rule 12(1)19 states that:
“The court or a Judge may refer any action to mediation at any stage of proceedings except
where:
a. the case involves an injunction; or
b. the court or a Judge considers a case unsuitable for reference to mediation.”

According to rule 15(2)20 the mediator must complete the process of mediation within ninety
days from the date of collection of the suit, action or legal proceedings in respect of which the
mediator has been appointed. The rules further provide that where mediation ends in a
settlement, the parties and the mediator shall sign the mediation settlement document… 21 which
shall be registered and sealed by the court.22 Such a mediation settlement shall have the force and
effect of a judgment, order or any decision of the court or Judge, and shall be enforced in a like
manner.23
As for rule 27 is pertinent as it provides that no appeal shall lie against a mediated settlement.
Judges of the High Court and the Industrial Relations Court have been encouraged to invoke the
16
The Industrial Relations Court (Arbitration and Mediation Procedure) Rule, 2002, Rule 2.
17
Ibid, rule 5(1)
18
Ibid, Rule 5(2)(a) and (b)
19
Supra (note 16)
20
Ibid
21
Ibid, Rule 22(1)
22
Ibid, Rule 22(2)
23
Ibid, Rule 22(3)
existing statutory provisions for referring parties to settle their disputes through the alternative
mechanisms of arbitration and mediation where appropriate, as this helps to decongest their
cause lists.

Conclusion
So far, the use of Mediation and Arbitration has registered a positive impact in enhancing access
to justice in Zambia. Since the introduction of Mediation in 1997 and the enactment of
Arbitration Act 2000 in 2000 there has been a tremendous growth in their practice. There is no
doubt that Mediation and Arbitration in Zambia have been warmly embraced by the Bench, the
Bar and, indeed members of the public in general. With the passage of time these two
mechanisms have proved to be a viable alternative to litigation. It can safely be stated that the
significance of Mediation and Arbitration in our jurisdiction is that they have to some extent
contributed over the years, to the reduction or decongestion of backlog of cases seized by trial
courts.

BIBLIOGRAPHY
Justice Charles Kajimanga, Enhancing access to justice through ADR mechanisms-the
Zambia experience. presentation at the annual regional conference held at Southern Sun,
Mayfair Nairobi, Kenya on 25-26 July, 2013
Mwenda, S. W (2006) Paradigms of Alternative Dispute Resolution and justice delivery in
Zambia (dissertation). Pretoria: UNISA
Newma, P (1999) Alternative Dispute Resolution. CLT Professional Publishing Co.
Scott Brown et-al, (2001) Alternative Dispute Resolution practitioner’s guide. Llondon: Sweet
and Maxwell.

TABLE OF STATUTES
Statutory instrument Number 71 of 1997
The Arbitration Act No. 19 of 2000
The Industrial Relations Court (Arbitration and Mediation Procedure) Rule, 2002.