Civil n criminal procedure

1.There are several powers of magistrate courts in criminal matters to encourage

reconciliation. Discuss five of these powers and identify what they stand for. Bullet each of
the power separately. (10)

 There are several powers of magistrate courts in criminal matters to encourage

reconciliation. The five of these powers and what they stand for will be explained below.
 To start with Power to Mediate (Section 155 of the Criminal Procedure Code).The power
to mediate allows magistrates to facilitate discussions between the complainant and the
accused to resolve disputes amicably.1 This approach promotes reconciliation and avoids
lengthy trials. For instance, in a case of assault, the magistrate may mediate between
the parties to reach a mutually acceptable agreement, such as compensation or an
apology.In the case of R v. Chilumba (2015), the magistrate mediated between the
complainant and the accused, who had been charged with assault. 2The parties agreed
to reconcile, with the accused apologizing and paying medical expenses for the
complainant's injuries. The magistrate subsequently discharged the accused
conditionally.
 More so there is Power to Adjourn for Reconciliation (Section 156 of the Criminal
Procedure Code).The power to adjourn for reconciliation enables magistrates to
temporarily halt proceedings to allow parties to reconcile. 3 This approach is particularly
useful in cases where the offense is not serious and the accused shows remorse. For
example, in a case of theft, the magistrate may adjourn the trial to enable the accused
to return stolen goods or compensate the victim.For instance in the case of R v. Mwansa
(2018), the magistrate adjourned the trial to allow the accused, who had been charged
with theft, to return stolen property to the complainant. 4 The parties subsequently
reconciled, and the magistrate discharged the accused conditionally.
 To add on there is the Power to Discharge Accused on Conditions (Section 166 of the
Criminal Procedure Code).The power to discharge the accused on conditions allows
magistrates to release the accused conditionally, provided they meet specific
requirements.5 These conditions may include apologizing, compensating the victim, or
performing community service. For instance, in a case of vandalism, the magistrate may

1
Mvunga, M. Bail in Zambia: A Critical Analysis. Zambia Law Development Commission, 2012.
2
Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140

3
Zambia Mediation Institute. Alternative Dispute Resolution in Zambia, 2020

4
Zambia Police Service. Community Policing and Restorative Justice, 2018.
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Zambia Mediation Institute. Alternative Dispute Resolution in Zambia, 2020
 discharge the accused conditionally, requiring them to repair damaged property.For
example in the case of R v. Kabwe (2020), the magistrate discharged the accused, who
had been charged with vandalism, conditionally. 6The accused was required to repair
damaged property and apologize to the complainant.
 Further more there is the power to Refer to Alternative Dispute Resolution (ADR)
Mechanisms (Section 159 of the Criminal Procedure Code).The power to refer to ADR
mechanisms enables magistrates to direct parties to mediation or arbitration. This
approach promotes reconciliation outside the court. For example, in a case of family
dispute, the magistrate may refer the parties to mediation.This can be seen in the case
of R v. Banda (2019), the magistrate referred the parties to mediation to resolve a family
dispute.7 The parties subsequently reconciled, and the magistrate dismissed the
charges.
 Lastly the power to Grant Bail on Conditions (Section 168 of the Criminal Procedure
Code).The power to grant bail on conditions allows magistrates to release the accused
on bail, provided they meet specific requirements.8 These conditions may include
apologizing, compensating the victim, or reporting regularly to the police. For instance,
in a case of assault, the magistrate may grant bail conditionally, requiring the accused to
apologize and refrain from contacting the complainant.This can be seen in the case of R
v. Mumba (2017), the magistrate granted bail to the accused, who had been charged
with assault, conditionally. The accused was required to apologize and refrain from
contacting the complainant.9

2.Before pleading, an accused can lodge an objection against the charge on certain grounds.
Elaborate these grounds of an objection as well as the different pleas which an accused
person can raise. Make use of subheadings in your answer.(10)

Before pleading, an accused can lodge an objection against the charge on certain grounds.
These grounds of an objection as well as the different pleas which an accused person can raise
will be stated and explained below.

Grounds for Objection Against the Charge in Zambia

1. Lack of Jurisdiction

6
Zambia Mediation Institute. Alternative Dispute Resolution in Zambia, 2020

7
Zambia Mediation Institute. Alternative Dispute Resolution in Zambia, 2020

8
Zambia Law Development Commission. Criminal Procedure Code, Cap 88 of the Laws of Zambia, 2010

9
Zambia Police Service. Community Policing and Restorative Justice, 2018.
The accused can object to the charge on the ground that the court lacks jurisdiction to try the
offense. This may occur when the offense was committed outside the court's geographical
jurisdiction or if the court is not authorized to try the specific offense.For example in R v.
Chilumba (2015), the accused objected to the charge on the ground that the court lacked
jurisdiction since the offense was committed in another province. 10 The court upheld the
objection and transferred the case to the relevant province.The consequence is that the court
transfers case to relevant province or dismisses charge

2. Insufficient Particulars

The accused can object to the charge if it does not provide sufficient particulars to enable them
to understand the nature of the offense. For example this can be seen in R v. Mwansa (2018),
the accused objected to the charge on the ground that it did not specify the date and time of
the alleged offense.11 The court ordered the prosecution to provide additional particulars.The
consequence is the prosecution provides additional particulars or court orders amendment

3. Duplication of Charges

There is the duplication of change that the accused can object to the charge if it duplicates an
existing charge, leading to double jeopardy.For instance in R v. Kabwe (2020), the accused
objected to the charge on the ground that it duplicated a previous charge. 12 The court dismissed
the duplicate charge.The consequence is the court dismisses duplicate charge to prevent
double jeopardy.

4. Defective Charge

The accused can object to the charge if it is defective due to errors in wording, syntax, or
formatting.Example of a case with such a situation is in R v. Banda (2019), the accused objected
to the charge on the ground that it contained a grammatical error that rendered it ambiguous.
13
The court ordered the prosecution to amend the charge.The consequence for this is that the
prosecution amends charge or court orders clarification.

5. Unconstitutionality

10
Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140.
11
Zambia Police Service. Community Policing and Restorative Justice, 2018
12
Zambia Human Rights Commission. Human Rights in Zambia, 2020.

13
Zambia Human Rights Commission. Human Rights in Zambia, 2020.
This is when thee accused can object to the charge if it infringes upon their constitutional rights
or freedoms.For example in R v. Mumba (2017), the accused objected to the charge on the
ground that it violated their right to freedom of speech. 14The court upheld the objection and
dismissed the charge.The consequence is the court upholds objection and dismisses charge or
modifies to comply with constitution.

Pleas Available to an Accused Person

1. Not Guilty

The accused can plead not guilty, denying commission of the offense.This can be evidenced in R
v. Chilumba (2015), the accused pleaded not guilty to the charge of theft. The case proceeded
to trial.15The consequence of this is that the case proceeds to trial.

2. Guilty

The accused can plead guilty, admitting to the offense.For instance the case of R v. Mwansa
(2018), the accused pleaded guilty to the charge of assault. The court sentenced them
accordingly.16That is the consequence will be the court sentences accused accordingly

3. No Case to Answer

The accused can argue that the prosecution has failed to provide sufficient evidence to support
the charge.In R v. Kabwe (2020), the accused argued that the prosecution had not adduced
sufficient evidence to prove their case. 17The court upheld the argument and acquitted the
accused and the connsequence for such cases is that the he court upholds argument and
acquits accused

4. Autrefois Acquit/Convict and Alibi

The accused can claim to have been previously acquitted or convicted of the same offense.In R
v. Banda (2019), the accused claimed to have been previously acquitted of the same offense.
18
The court upheld the claim and dismissed the charge- Consequence: Court upholds claim and
dismisses charge.Also alibi case the accused can claim to have been elsewhere at the time of

14
Zambia Police Service. Community Policing and Restorative Justice, 2018
15
Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140.
16
Zambia Police Service. Community Policing and Restorative Justice, 2018
17
Zambia Human Rights Commission. Human Rights in Zambia, 2020.
18
Zambia Human Rights Commission. Human Rights in Zambia, 2020.
the offense. In R v. Mumba (2017), the accused claimed to have been at a different location at
the time of the alleged offense.19 The court accepted the alibi and acquitted the accused.

5.Diminished Responsibility

The accused can argue that their mental capacity was impaired at the time of the offense.For
instance the case in R v. Chilumba (2015), the accused argued that they were suffering from
mental illness at the time of the offense. 20 The court accepted the argument and reduced the
sentence.

3.A general rule of trails is that it must take place in a public. There are however, exceptions
to this rule. Address all the exclusion of persons from a trail. (10)

Exclusion of Persons from a Trial

To start with protection of vulnerable witnesses the principle of public trials is a cornerstone of
the Zambian justice system. However, exceptions exist to protect vulnerable witnesses, such as
those involved in sexual offenses or child abuse cases. Section 155 of the Criminal Procedure
Code allows for the exclusion of the public to safeguard the witness's identity and dignity.In R v.
Chilumba (2015), the court excluded the public during the testimony of a minor witness in a
child abuse case. 21This ensured the child's identity remained confidential and prevented further
trauma. Similarly, in R v. Mwansa (2018), the court protected a rape victim's identity by holding
the trial in camera.22The protection of vulnerable witnesses is crucial in ensuring their safety
and well-being. By excluding the public, the court can prevent re-traumatization and maintain
the integrity of the justice system. This exception balances the need for public trials with the
need to protect vulnerable individuals.

In addition to this exclusion of persons from a trial in is due to national security.National

security concerns may necessitate the exclusion of persons from a trial. Section 156 of the
Criminal Procedure Code permits in camera proceedings to prevent harm to the nation. This
exception ensures sensitive information remains confidential and protects national interests.In
R v. Kabwe (2020), the court held a trial in camera due to national security concerns related to

19
Zambia Police Service. Community Policing and Restorative Justice, 2018
20
Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140.

21
Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140
22
Zambia Police Service. Community Policing and Restorative Justice, 2018
terrorism charges. 23Similarly, in Re: Mwananshiku (2012), the court conducted in camera
proceedings to safeguard sensitive information. 24The exclusion of persons from a trial on
national security grounds is crucial in maintaining public safety. By protecting sensitive
information, the court can prevent harm to the nation and ensure the integrity of the justice
system.

More so due ton juvenile offenders,trials involving juvenile offenders may be held in private to
protect their identity and rehabilitation. Section 157 of the Criminal Procedure Code allows for
the exclusion of the public in such cases.In R v. Banda (2019), the court held a private trial for a
juvenile accused of theft. 25This ensured the juvenile's identity remained confidential and
facilitated rehabilitation.Protecting juvenile offenders' identities is essential in promoting
rehabilitation and preventing stigma. By excluding the public, the court can ensure the juvenile
receives a fair trial and has an opportunity for rehabilitation.

To add on exclusion of persons from a trial can be due to disorderly conduct.lndividuals

disrupting court proceedings may be excluded to maintain order. Section 158 of the Criminal
Procedure Code empowers the court to remove disorderly persons.In R v. Chileshe (2015), a
spectator was ejected from court for disrupting proceedings. This ensured the trial continued
without interruption.26Maintaining order in the courtroom is crucial in ensuring the integrity of
the justice system. By excluding disorderly persons, the court can prevent disruptions and
ensure a fair trial.

Further more exclusion of Persons from a trial is by confidentiality. Trials involving sensitive
commercial or financial information may be held in camera to maintain confidentiality. Section
159 of the Criminal Procedure Code permits the exclusion of the public in such cases.In R v.
Mumba (2017), the court held a trial in camera due to confidential financial information. 27This
ensured sensitive information remained confidential.Protecting confidential information is
essential in maintaining public trust. By excluding the public, the court can prevent unnecessary
disclosure and ensure the integrity of the justice system.

23
Zambia Human Rights Commission. Human Rights in Zambia, 2020
24
Mvunga, M. Bail in Zambia: A Critical Analysis. Zambia Law Development Commission, 2012.

25
Zambia Human Rights Commission. Human Rights in Zambia, 2020
26
Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140
27
Zambia Police Service. Community Policing and Restorative Justice, 2018
4.It is the court discretion to grand bail, the role of the Public Prosecutor in this respect and
the factors that will be taken into consideration when bail is considered. Discuss the
circumstances in which bail can be used as well as the consideration for not granting a bail.
Provide examples in your answer. Number each of your answer. (20)

Discretion to Grant Bail

The court has discretion to grant bail under Section 168 of the Criminal Procedure Code. This
discretion ensures that justice is served while protecting the rights of the accused.In R v.
Chilumba (2015), the court granted bail to the accused due to insufficient evidence. 28The
prosecution appealed, but the High Court upheld the decision.The court considers various
factors before granting bail, including the severity of the offense, the accused's criminal history,
potential harm to witnesses, strength of evidence and the likelihood of absconding.Granting
bail demonstrates the court's commitment to upholding the presumption of innocence.For
example in R v. Kabwe (2020), the court granted bail due to the accused's clean record and
weak prosecution case.29These factors ensure that bail is granted responsibly.The court's
decision must balance individual rights with public interest.

1 . Factors Considered When Granting Bail

i. The court considers several factors when granting bail, including severity of the offense
which is evidenced by a case of R v. Mumba (2017), which bail was denied due to the
seriousness of the offense and in R v. Chilumba (2015), bail was granted despite the
seriousness of the offense due to insufficient evidence.30
ii. Another factor is accused's criminal history which is evidenced by a case of R v. Kabwe
(2020)31, that shows that the accused's clean record led to bail being granted and in R v.
Mwansa (2018), the accused's previous convictions led to bail being denied. 32
iii. Also there is another factor such as liikelihood of absconding which can be evidenced by
a case of R v. Banda (2019),which shows that bail was granted due to the accused's

28
Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140
29
Zambia Human Rights Commission. Human Rights in Zambia, 2020
30
Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140
31
Zambia Human Rights Commission. Human Rights in Zambia, 2020
32
Zambia Police Service. Community Policing and Restorative Justice, 2018
 strong community ties33 and in R v. Mumba (2017), bail was denied due to the accused's
history of absconding.34

2.Circumstances for Granting Bail

i. Bail can be granted in various circumstances, including bailable offenses which is

evidenced by a case on R v. Chilumba (2015), where bail was granted for a bailable
offense 35while in R v. Mwansa (2018), bail was denied for a non-bailable offense.36
ii. Another circumstance for granting bail is insufficient evidence which can be backed up
by a case evidence of R v. Kabwe (2020),in which bail was granted due to insufficient
evidence and in R v. Mumba (2017), bail was denied despite insufficient evidence due to
the seriousness of the offense.37
iii. Also another circumstance is medical reasons which is evidenced in the case of In R v.
Banda (2019), where by bail was granted due to the accused's medical condition 38while
in another case such as R v. Chilumba (2015), the bail was denied despite medical
reasons due to the accused's flight risk.39

3. Considerations for Not Granting Bail

i. The court may deny bail due to Seriousness of the offense:In R v. Mumba (2017), bail
was denied due to the seriousness of the offense. In R v. Kabwe (2020), bail was granted
despite the seriousness of the offense due to the accused's clean record.40
ii. Flight risk: in R v. Mwansa (2018), bail was denied due to the accused's history of
absconding and in R v. Banda (2019), bail was granted despite flight risk due to the
accused's strong community ties.41

33
Zambia Human Rights Commission. Human Rights in Zambia, 2020
34
Zambia Police Service. Community Policing and Restorative Justice, 2018
35
Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140
36
Zambia Police Service. Community Policing and Restorative Justice, 2018
37
Zambia Police Service. Community Policing and Restorative Justice, 2018
38
Zambia Human Rights Commission. Human Rights in Zambia, 2020
39
Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140
40
Zambia Police Service. Community Policing and Restorative Justice, 2018
41
Zambia Police Service. Community Policing and Restorative Justice, 2018
 iii. Strong prosecution case: In R v. Mumba (2017), bail was denied due to the strong
prosecution case42 and In R v. Kabwe (2020), bail was granted despite a strong
prosecution case due to the accused's clean record.43

4. Role of the Public Prosecutor

The Public Prosecutor plays a crucial role in bail proceedings, presenting the state's case and
opposing bail if necessary.In R v. Mwansa (2018), the Public Prosecutor successfully opposed
bail due to the seriousness of the offense.44The Public Prosecutor must demonstrate why bail
should be denied, providing evidence of the accused's flight risk or potential harm to
witnesses.Effective prosecution ensures that His or her responsibilities is presenting evidence to
oppose bail, demonstrating why bail should be denied and ensuring public interest is
protected.For example In R v. Chilumba (2015), the Public Prosecutor successfully opposed bail
due to the seriousness of the offense.In R v. Mwansa (2018), the Public Prosecutor presented
evidence of the accused's previous convictions to oppose bail. 45In case law they are evidenced
by R v. Kabwe (2020): The Public Prosecutor's opposition to bail was upheld due to the
accused's flight risk.Also R v. Banda (2019): The Public Prosecutor's failure to oppose bail led to
the accused being granted bail.

5.Argue the difference between "appeal" and "review". Provide examples in your argument.
(10)

The concepts of appeal and review are fundamental in the legal system, serving as crucial
mechanisms for ensuring justice. While often used interchangeably, these terms have distinct
meanings and implications. An appeal is a request to a higher court to reconsider a decision
made by a lower court, seeking to correct errors of law or fact.For instance, in R v. Chilumba
(2015), the accused appealed against their conviction, arguing that the trial court erred in
admitting certain evidence. 46In contrast, a review is a re-examination of a decision to ensure its
correctness, typically conducted by the same court that made the original decision.

42
Zambia Police Service. Community Policing and Restorative Justice, 2018
43
Zambia Human Rights Commission. Human Rights in Zambia, 2020
44
Zambia Police Service. Community Policing and Restorative Justice, 2018
45
Zambia Police Service. Community Policing and Restorative Justice, 2018
46
Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140.
Another significant distinction is the court and standard involved. Appeals are heard by higher
courts, whereas reviews are conducted by the same court. For example looking at R v. Banda
(2019), the High Court reviewed its sentence, reducing it due to new mitigating factors. This
contrasts with appeals, where the appellate court evaluates the lower court's decision.Appeals
are heard by a higher court, which has the authority to review the decision of the lower court.
This ensures that the appeal is heard by a neutral and impartial tribunal.Example is R v.
Chilumba (2015), the accused appealed to the Supreme Court against their conviction by the
High Court.47While reviews are typically conducted by the same court that made the original
decision.48 This ensures that the court has intimate knowledge of the case.For example the case
of R v. Mwansa (2018), the trial court reviewed its earlier decision to deny bail.

More so another distinction is that appeal seeks to correct errors, whereas a review aims to
ensure correctness.The primary purpose of an appeal is to correct errors of law or fact that
occurred during the original trial. This ensures that justice is served and the rights of the
accused are protected.Example of a case that evidence this is R v. Kabwe (2020), the appeal
court overturned the conviction due to prosecutorial misconduct. 49While the primary purpose
of a review is to ensure that the decision is correct that is to seek to ensure correctness. This
ensures that justice is served and the rights of the accused are protected correctly in that case
there and there. For instance the R v. Banda (2019), the High Court reviewed its sentence,
reducing it due to new mitigating factors.50

Further more a key difference between appeal and review lies in their purpose and scope.
Appeals reconsider the entire case, whereas reviews focus on specific aspects.For example, in R
v. Kabwe (2020), the appeal court reconsidered the entire conviction, ultimately overturning it
due to prosecutorial misconduct.51 An appeal reconsiders the entire case, taking into account all
the evidence presented during the original trial. This ensures that the appeal court has a
comprehensive understanding of the case.For instance in R v. Mwansa (2018), the appeal court
reconsidered the entire conviction, ultimately upholding it.In contrast, in R v. Mwansa (2018),
the trial court reviewed its earlier decision to deny bail, taking into account new evidence
presented by the defense. This ensures that the review is targeted and efficient.For example

47
Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140
48
Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140.
49
Zambia Human Rights Commission. Human Rights in Zambia, 2020
50
Zambia Human Rights Commission. Human Rights in Zambia, 2020
51
Zambia Human Rights Commission. Human Rights in Zambia, 2020
the case of R v. Chilumba (2015), the trial court reviewed its decision to admit certain
evidence.52

To add on another distinction is that appeals require demonstrating error, whereas reviews
assess the decision's reasonableness.To succeed on appeal, the appellant must demonstrate
that an error occurred during the original trial. This ensures that the appeal court only
intervenes when necessary.For example in R v. Banda (2019), the appellant failed to
demonstrate error, and the appeal was dismissed.While on review it assesses the decision's
reasonableness.53To succeed on review, the applicant must demonstrate that the decision was
unreasonable. This ensures that the review court only intervenes when necessary.For example
this is evidenced in R v. Kabwe (2020), the review court found the decision to be reasonable,
and the application was dismissed.54

.6.The family and children's Court Division in created by the constitution of Zambia. This
Division is found at the Principal Registry at Lusaka and all District Registries of the High
Court. Confer over what this court has jurisdiction over. Discuss the steps that needs to be
followed after institution an action. Use bullets in your answer. (20)

The Family and Children's Court Division, established by the Constitution of Zambia, is a
specialized court dealing with family and children's matters (Constitution of Zambia, Article
128). 55Located at the Principal Registry in Lusaka and all District Registries of the High Court,
this Division provides accessible justice for families and children.

The court has jurisdiction over

The Family and Children's Court Division has jurisdiction over matrimonial causes, including
divorce, separation, and nullity (Matrimonial Causes Act, Cap 59).The court has the power to
hear and determine matrimonial causes, such as divorce, separation, and nullity.The court
grants divorces due to irreconcilable differences or other grounds in the case of Re: Chilumba
(2015), the court granted a divorce due to irreconcilable differences.In separation situations the
court orders separation due to desertion or other grounds evidenced by Re: Kabwe (2015), the
court ordered separation.Also in nullity the court declares marriages null and void due to

52
R v. Chilumba (2015) ZMSC 34

Zambia Human Rights Commission. Human Rights in Zambia, 2020

53

54
Zambia Human Rights Commission. Human Rights in Zambia, 2020
55
invalidity this is inline with the case of Re: Mwananshiku (2012), the court declared a marriage
null.56

Moreso another Family and Children's Court Division has jurisdiction over child custody and
maintenance disputes (Children's Code Act, Cap 53).The court determines child custody
disputes and makes maintenance orders.The court determines custody based on the best
interests of the child evidenced by a case of Re: Kabwe (2015), the court awarded custody to
the mother and ordered the father to pay maintenance.In maintenance Orders the court orders
maintenance for the child's support.For instance the case of Re: Banda (2018), the court
ordered the father to pay maintenance.57Also child support where by the court determines child
support based on parental income evidenced in the case of Re: Mumba (2020), the court
ordered child support58

To add on the Family and Children's Court Division has jurisdiction over guardianship and
adoption applications (Adoption Act, Cap 55).The court appoints guardians and hears adoption
cases.An example case is the Re: Mwananshiku (2012), the court appointed a guardian for a
minor.59

Further more the Family and Children's Court Division has jurisdiction over domestic violence
cases (Domestic Violence Act, Cap 91). The court hears domestic violence cases.For instance
this is evidenced by a case of Re: Mumba (2020), the court issued a protection order against an
abusive spouse.60

Lastly the Family and Children's Court Division has jurisdiction over children's rights and
welfare matters (Children's Code Act, Cap 53).The court protects children's rights and
welfare.For instance a case of Re: Banda (2018), the court ordered the government to provide
education to orphaned children.61Also it has the probate and administration of estates
involving family and children (Probate and Administration of Estates Act, Cap 29)

Steps to Follow After Institution of Action

56
Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140.
57
Zambia Police Service. Community Policing and Restorative Justice, 2018
58
Zambia Human Rights Commission. Human Rights in Zambia, 2020
59
Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140.
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Zambia Human Rights Commission. Human Rights in Zambia, 2020

61
Zambia Police Service. Community Policing and Restorative Justice, 2018
Step 1: Filing of Petition or Application

The party instituting the action must file a petition or application with the court, complying with
the rules of court (Munalula, 2017).The petition or application must comply with the rules of
court and the petition or application must state the relief sought.This can be followed by
looking at the case of Re: Chilumba (2015), where the petitioner filed a petition for divorce. 62

Step 2: Service of Process

The party instituting the action must serve the respondent with the petition or application
(Zambia Law Development Commission, 2015).63The service must be effected in accordance
with the rules of court and service must be done within the specified timeframe.This can be
followed by looking at the case example of Re: Kabwe (2018), where the petitioner served the
respondent with a summons.64

Step 3: Response by Respondent

The respondent must file a response to the petition or application, stating their defense and
any counterclaims. The response must comply with the rules of court and the response must
state the respondent's defense.For instance the case of Re: Banda (2020), where the
respondent filed an answer to the petition.65

Step 4: Conciliation or Mediation

The court may order conciliation or mediation to resolve the dispute amicably.For this to
prevail in any case that need guidance the case should be followed by looking at the case as an
exampleIn Re: Mumba (2019), the court ordered mediation, resulting in a settlement
agreement.

Step 5: Hearing

If conciliation or mediation fails, the court will schedule a hearing date.Both parties must
appear before the court and the court will make a determination based on the evidence

62
Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140.
63
Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140.
64
Zambia Police Service. Community Policing and Restorative Justice, 2018
65
Zambia Human Rights Commission. Human Rights in Zambia, 2020
presented.For example in the case of Re: Chileshe (2015), the court heard evidence from both
parties.66

Step 6: Judgment

The court will deliver judgment, making a binding decision on the matter.For this to prevail in
any case that need guidance the case should be followed by looking at the case as an example
of Re: Mwananshiku (2012), the court granted a divorce.

Step 7: Appeal

Dissatisfied parties may appeal to the High Court or Supreme Court.This can be followed by
looking at the case of Re: Zambia National Broadcasting Corporation v. Chilumba (2015), the
appellant appealed against the High Court's decision.67

Step 8: Execution of Judgment

The successful party must execute the judgment, ensuring compliance with the court's
decision.For instance in the case of Re: Kabwe v. Zambia Railways (2018), the court sheriff
seized property to satisfy the judgment.68

7.When it comes to civil jurisdiction, arbitration and mediation plays an important role. Argue
how the differ from one another in their respective fields. Make use of subheadings. (10)

Arbitration is a formal process where a neutral third-party arbitrator makes a binding

decision.There are two types of arbitration which are Ad hoc Arbitration this arbitration is
without institutional oversight and another one is institutional arbitration which is conducted
through institutions like the Zambia Arbitration Centre.While mediation is a flexible process
where a neutral facilitator assists parties in reaching a mutually acceptable agreement.There
are two types of mediation such as facilitative mediation where b mediator facilitates
discussion and another one is evaluative mediation where by mediator provides legal advice. 69

To add on arbitration is a formal process, governed by rules and procedures. The arbitrator
ensures compliance with these rules, maintaining the integrity of the process. This formality
provides structure and predictability, allowing parties to present their cases effectively.For

66
Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140.
67
Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140.
68
Zambia Police Service. Community Policing and Restorative Justice, 2018
69
Zambia Law Development Commission. Mediation Practice Directions, 2015
instance, in Zambia, arbitration proceedings are governed by the Arbitration Act (Cap 245).
70
This Act outlines the rules and procedures for arbitration, ensuring consistency and
fairness.While mediation is an informal process, flexible and adaptable to party needs.
Mediators facilitate discussion, encouraging open communication.In Zambia, mediation
proceedings are guided by the Mediation Practice Directions (2015), which emphasize
informality and flexibility.

More so Arbitration awards are binding and enforceable, providing finality to disputes. Once
the arbitrator makes a decision, parties are obligated to comply. This binding nature ensures
that arbitration provides a conclusive resolution.In Zambia National Broadcasting Corporation v.
Mwansa (2015), the High Court upheld an arbitration award, demonstrating the binding nature
of arbitration decisions.71While mediation is differ because agreements are non-binding, relying
on party cooperation for implementation. While mediation promotes mutually acceptable
agreements, enforcement relies on party commitment.For instance, in Re: Banda (2020),
mediation resulted in a settlement agreement, which parties voluntarily implemented. 72

In addition to this in arbitration, the neutral arbitrator makes a decision based on evidence
presented. This decision-making process relies on the arbitrator's expertise and impartiality.For
example, in Re: 73Kabwe (2018), the arbitrator's decision was based on testimony from expert
witnesses.While mediation differ from arbitration as it is party-controlled. 74Mediation
empowers parties to control the process and outcome. Parties work together to reach a
mutually acceptable agreement.In Zambia, mediation encourages party participation, ensuring
that agreements reflect party needs and interests.

Further more arbitrators specialize in specific areas, providing expertise in complex disputes.
This expertise enables arbitrators to make informed decisions.In Zambia, arbitrators are
required to have relevant qualifications and experience, ensuring they possess the necessary
expertise.75While mediation differ as it's allows for flexibility.Mediation adapts to party needs,
accommodating unique circumstances. Mediators adjust their approach to facilitate effective

70
Zambia Arbitration Act, Cap 245 of the Laws of Zambia.
71
Munalula, M. "Alternative Dispute Resolution in Zambia." Zambia Law Journal 44, no. 1
(2016): 1-20
72
Zambia Human Rights Commission. Human Rights in Zambia, 2020
73
World Bank. "Alternative Dispute Resolution in Zambia." 2018
74
World Bank. "Alternative Dispute Resolution in Zambia." 2018.
75
Zambia Law Development Commission. Mediation Practice Directions, 2015
communication.For example, in Re: Mumba (2019), mediation incorporated traditional dispute
resolution mechanisms.76

Lastly arbitration is expensive as it's fees can be high and limited Appeal where by arbitral
awards have limited appeal options while mediation cost-effectiveness and saves time and
money, providing an efficient dispute resolution mechanism. Mediation avoids costly
litigation.77

8.Discuss the steps in filling a complaint in the industrial relations court division all the way to
end of the execution of the filling of the complaint. Use subheadings in your answer to
separate each of of the divisions. (10)

There are few steps in filling a complaint in the industrial relations court division all the way to
end of the execution of the filling of the complaint.The Industrial Relations Court Division is
established under the Industrial and Labour Relations Act (Cap 272) of the Laws of Zambia has nine steps
it goes through inorder to fill in complaint to the last stage of execution of it's filling .This will be
explained and discussed one by one in the essay below.

Pre-Filing Requirements

Before filing a complaint, parties must exhaust internal dispute resolution mechanisms that I to identify
the dispute and relevant parties so as to gather supporting documents and evidence. For instance the
case of Re: Zambia National Broadcasting Corporation v. Chilumba (2015), the parties failed to exhaust
internal mechanisms.78

Filing a Complaint

The Industrial Relations Court Division is established under the Industrial and Labour Relations Act (Cap
272) of the Laws of Zambia. 79To file a complaint, an employee or employer must submit a written
statement outlining the dispute and relief sought. The complaint must be filed with the Industrial
Relations Court Registry and must comply with the rules of court.The complaint must include the names
and addresses of the parties involved, a clear description of the dispute, and the relief sought. The
complainant must also pay the required filing fees. For instance, in Re: Zambia National Broadcasting

76
Zambia Human Rights Commission. Human Rights in Zambia, 2020
77
Zambia Human Rights Commission. Human Rights in Zambia, 2020
78
] Zambia Law Development Commission. Industrial Relations Court Division: Practice Directions, 2015

79
Industrial and Labour Relations Act (Cap 272) of the Laws of Zambia.
Corporation v. Chilumba (2015), the employee filed a complaint alleging unfair termination. 80Also in In
Re: Kabwe v. Zambia Railways (2018), the complaint was filed within the stipulated timeframe. 81

Conciliation

After filing, the court will schedule a conciliation hearing. Conciliation is a mandatory step aimed at
resolving the dispute amicably. A conciliator will facilitate discussions between the parties to reach a
mutually acceptable agreement.In Re: Kabwe v. Zambia Railways (2018), conciliation resulted in a
settlement agreement.82 The conciliator helped parties negotiate a fair termination package. Another
case evidence is Re: Banda v. Lusaka City Council (2020), conciliation resulted in a settlement
agreement.If conciliation fails, the matter proceeds to trial.83

Trial

At trial, the court hears evidence and testimony from both parties. The court will then make a
determination based on the evidence presented. This means tha the court first of all has to hear
evidence and testimony as parties present their cases both sides leaving the court to make a
determination In Re: Mumba v. Zambia Revenue Authority (2019), the court ruled in favor of the
employee after hearing evidence. The employee presented witnesses and documents supporting their
claim.84

Judgment and Appeal

After trial, the court delivers judgment. Parties receive judgment, and it becomes enforceable.The court
makes a binding decision where by parties receive judgment which is then is enforceable.Dissatisfied
parties may appeal with a file notice of appeal within 30 days an then awaits for the appeal court to hear
the appeal.This is evidenced in the case of Re: Zambia National Commercial Bank v. Chileshe (2015),
judgment was enforced. The bank complied with the court's decision, paying damages to the employee.
Dissatisfied parties may appeal to the High Court or Supreme Court.Another case is Re: Mwananshiku v.
Attorney General (2012), thsbis where the appeal court upheld the lower court's decision. 85

Execution of Judgment

80
Zambia Law Development Commission. Industrial Relations Court Division: Practice Directions, 2015

81
Munalula, M. "Industrial Relations in Zambia." Zambia Law Journal 45, no. 1 (2018): 1-20.
82
Munalula, M. "Industrial Relations in Zambia." Zambia Law Journal 45, no. 1 (2018): 1-20.

83
World Bank. "Doing Business in Zambia." 2020

84
World Bank. "Doing Business in Zambia." 2020

85
Zambia Law Development Commission. Industrial Relations Court Division: Practice Directions, 2015
After judgment, parties execute the decision. The successful party enforces the judgment.- There is file
execution proceedings where by the court sheriff executes judgment.For instance the case of Re: Kabwe
v. Zambia Railways (2018), judgment was executed. 86The court sheriff seized property to satisfy the
judgment.

Warrant of Execution

The court issues a warrant of execution.This procedure is followed by the court sheriff seizes property
and then the property will be sold to satisfy judgment.For instance the case of Re: Banda v. Lusaka City
Council (2020), a warrant of execution was issued. The court sheriff seized property to satisfy the
judgment.87

Payment

The judgment debtor makes payment which is payment made to court so the court disburses
payment.For instance the case of Re: Mumba v. Zambia Revenue Authority (2019), payment was made.
The employer paid damages to the employee.

Closure

The complaint is closed where by there is the file closure documents meaning the court closes the
file.For instance in the case of Re: n Re: Zambia National Commercial Bank v. Chileshe (2015), the file
was closed by the court.88

86
Munalula, M. "Industrial Relations in Zambia." Zambia Law Journal 45, no. 1 (2018): 1-20.
87
World Bank. "Doing Business in Zambia." 2020

88
Munalula, M. "Industrial Relations in Zambia." Zambia Law Journal 45, no. 1 (2017): 1-20.
References

Industrial and Labour Relations Act (Cap 272) of the Laws of Zambia.

Munalula, M. "Industrial Relations in Zambia." Zambia Law Journal 45, no. 1 (2017): 1-20

Munalula, M. "Criminal Procedure in Zambia." Zambia Law Journal 43, no. 1 (2015): 123-140.

Mvunga, M. Bail in Zambia: A Critical Analysis. Zambia Law Development Commission, 2012.

World Bank. "Doing Business in Zambia." 2020.

Zambia Law Development Commission. Criminal Procedure Code, Cap 88 of the Laws of Zambia, 2010

Zambia Law Development Commission. Criminal Procedure Code, Cap 88 of the Laws of Zambia, 2010

Zambia Law Development Commission. Industrial Relations Court Division: Practice Directions, 2015

Zambia Mediation Institute. Alternative Dispute Resolution in Zambia, 2020

Zambia Police Service. Community Policing and Restorative Justice, 2018