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Sunday, 2 January 2011

Constitution of Zambia (Amendment) Bill 2010: Part I

The Supremacy and Defence of The Constitution

Part I relates to the “supremacy and defence of the constitution”. For our purposes we focus on Article 2:
(1) Every person has the right and duty to defend and protect this Constitution.
(2) A person who suffers a punishment or loss arising from the defence of this Constitution as provided for under clause (1) is entitled to compensation, which shall be determined by the Constitutional Court.
We shall comment more on the “Constitutional Court” in future posts. Here the focus is on the “compensation” element.

This provision is understood to mean that anyone seeking to defend this Constitution e.g. by seeking legal redress against Government policies that do not align with it (e.g. failure to conform with Part VII, Article 144), would be compensated. However, at present this is unclear.

For example, does that mean that if I, as a citizen, challenge government policies and bring forward proceedings to the Constitutional Court then I will not bear the financial costs if successful? What does it mean to those who in their daily jobs who are “defending and protecting this Constitution”? The nature of the “defence” needs to be clarified upfront for certainty. It is right that the Constitution Court determines the level of compensation, but at present this wording is not too clear for a common person to understand what this entails in practice. 

It also seems to me that in the spirit of ensuring the Constitution focuses on principles, additional provision should be inserted to allow Parliament to give greater clarity on the form of “defence” and the limits of compensation within which the Constitutional Court may dispense.

In particular, the extent of the costs are important. If compensation is only for those who are successful then it will disencentivise many because it will lead to only cases with a high probability of successful being taken forward. This may well be efficient but it could lead to only claims coming from organisations rather than individuals, turning the constitution into a constitution of the rich and powerful. Is that what we want? The efficiency and equity arguments need to be balanced.

Next Stop : Part 2

All posts in this ongoing review can be found at the Constitution of Zambia page.


  1. I too read this Article to mean that a person who brings a case against the Government and is successful is entitled to "compensation," which I assume would mean at least reimbursement of litigation costs, and possibly an addidtional amount at the discretion of the Constitutional Court. I do not necessarily disagree with the Constitutional Court being charged with determining the level of compensation, as the Court will have the expertise to develop appropriate precedent relating to compensation over time and will be more insulated from political influence than the Parliament. Also, I don't think it's necessarily a bad thing that organizations rather than individuals will most likely initiate litigation, as long as there exist enough legal organizations across the country (rural and urban) to bring constitutional cases at no cost to victims. In this way, the organizations rather than individuals would bear the litigation costs. Donor entities focused on rule of law could consider expanding their support for organizations that take on Article 2 cases to increase the likelihood that organizations will take such cases. Zambian NGOs could also consider collaborating with organizations within Africa and around the world that concentrate on constitutional litigation (such as Center for Constitutional Rights in the US).

  2. Christina,

    Good points.

    There's certainly a need to be more clear about how "legal aid" will work here. If the payments are ex-post then it will certainly be a problem because people would have to fund the litigation upfront.

    At present our legal aid system does not function properly for criminal cases let alone any constitutional cases.

    As you have noted donors can support that, but how sustainable would that be.

    I guess one alternative is to make it clear "class actions" will allowed. Unfortunately, I am not familiar with the law in this area - its something I need to check with others.

  3. Thank you for your thought-provoking posts, and your reply.

    Perhaps I incorrectly assumed that the legal aid system is more effective than you suggest. Undoubtedly, the need for free or low cost legal services is greater than what can be provided by non-profit organizations such as Legal Resources Foundation, Paralegal Alliance, National Legal Aid Clinic for Women, and similar organizations, which I understand to do good work under significant resource constraints, as well as by the government.

    I believe that class action litigation would require significant investment on the part of the organization that represents the class, though the precedential value of a particular case or prospect of financial return might be enough to justify the organization's initial costs.

    Something that has been effective in the US, and which might work in Zambia, if it's not already being done, is to have law students, supervised by professors and/or in collaboration with practitioners, litigate constitutional cases for class credit. To the extent that the government subsidizes the law school, it would decrease the cost of bringing constitutional cases while grooming new lawyers to take on such cases after they graduate (either as a career or on a pro bono basis). I participated in a human rights clinic while in law school, and learned more from that experience than from any law school class.

  4. Christina,

    Some good points!

    The para organisations are not well run and they are inadequately funded.

    But I like your idea of getting law students involved in providing advice. I do not think this is actually being done at present but it is a good idea. If I was a lawyer, I would definitely follow it up with the relevant law schools. I have been researching to see if such a programme exists but I have not find any evidence that it does.


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