This essay was originally submitted to the 2022 Troubling Power Essay Competition.
In a peaceful country like mine, one would wonder what kind of conflict exists. Zambia has never experienced a civil war and has experienced the peaceful change of political dispensations over the years. However, one of the legacies of colonialism in Zambia is the existence of a dual legal system. This entails the presence of two separate systems of law existing side by side. The first system is the received statutory law derived from the legal systems subsisting in England in the late 1800s to the early and mid-1900s until Zambia obtained her independence in 1964. The statutory law consists of a codified set of written laws that govern various aspects of personal life, politics, trade and commerce, to mention but a few. The second is the indigenous customary law, unwritten but passed on from generations since time immemorial. While the majority of Zambians practice customary law to varying degrees, the effect of statutory law permeates the day to day lives of urbanised Zambians ranging from electoral law to the holding of land and employment law, among others. In addition, the supreme law of the land, the Constitution, is a creature of the statutory law and all other laws (including customary law) are subject to it. Therefore, in urban Zambia the statutory law has far-reaching effects on the citizenry who have since resorted to practising a blend of the two legal systems, where possible, as opposed to picking one over the other.
While the two legal systems appear to subsist comfortably, the conflict becomes very apparent in the area of family law where a majority of the urban population undergo two forms of marriage celebration thereby creating a blend of the two legal systems. The first, is a statutory marriage to ensure that the marriage is recognised by statute and fortified by its protections. The second is a marriage under customary law to ensure that a marriage is accepted through the rites that embody a customary marriage. These processes normally take place simultaneously. Why? Because in the Zambian context, a marriage may not be recognised by the families of the parties in the absence of customary rites regardless of the fulfilment of all statutory requirements. What this means is that where such a marriage is terminated under one legal order, it may continue to subsist under the other, an unfortunate conundrum. For instance, where the marriage is terminated through the return of a dowry under customary law, it continues to subsist under statute until the conclusion of divorce proceedings in the High Court.
The subsequent post-divorce issues relating to custody of children, maintenance or property settlement, while settled under one legal order, may leave unresolved issues under the other. Some of these unresolved issues hinge on customary practices and the strong influence of the extended family in the African context. It must be noted that custody in the African context is very different from the western view reflected in the statutory law, as custody of children may be influenced by matrilineal and patrilineal cultural practices and custody can be exercised through the extended family. What the two systems of law have failed to reflect is the fact that the embracing of one system does not necessarily entail the abandonment of the other in practice. Early interactions of the dual legal systems had indicated that it was impossible for Africans to ever divest themselves of customary law because it was unthinkable that one could abandon their cultural heritage. As the rate of urbanisation increases steadily, the interaction of Zambians with the statutory law is inevitable but this does not entail the abandonment of customary law. The legal system in its current form is unprepared to address this growing reality.
Another area of law where there is seething resentment against the upper hand of statutory law is the conversion of customary land to statutory land as urban areas continue to encroach into areas held under customary tenure. The processes set out under statute are not necessarily similar to those under customary law. In actual fact, the holding of land under the two systems of law are incompatible. While the statutory law overlooks this incompatibility and imposes a system that legitimises the continued encroachment into traditional land to serve the needs of urban Zambia, an unresolved conflict lies in the conversion of traditional land. Despite the recognition of customary land tenure, where government or influential private interests exist, there is no level playing field, the uncodified customary law stands no chance against the whims of those wielding the authority of the statutory law. The decisions relating to land that represents an entire lineage, customary practices anchored on social cohesion and cultural heritage of an entire rural community is left to a chief (with the assumed consent of subjects) with no regard for the rules of customary land tenure. Rather than subsist side by side, the statutory law takes precedence, annihilating any form of customary tenure that previously existed. This results for the most part, in displacement of rural communities with inadequate compensation. Inadequate in the sense that a monetary value cannot be placed on cultural heritage. Even where public participation is supposedly conducted in accordance with law, the bargaining power of the parties is never equal. The urbanised elite and people with influence such as, parliamentarians, government officers, traditional authorities, wield immense power over the interests of rural communities.
As earlier stated, the embracing of statutory law and what it represents need not to entail the abandonment of customary land rights for rural communities in totality because rather than a co-existence of two legal systems what is occasioned is the elimination of one in preference of the other. The two systems cannot exist over the same land simultaneously and yet it may very well be the desire of the majority of the citizenry to blend the two. How then does the legal system reflect the realities of a citizenry whose practices, perspectives, values, culture and heritage are a culmination of the two separate systems? The continuance of the dual legal system offers no possibilities for the contemplation of all interests, rights and needs which are extraneous to the statutory law but essential to the lives of citizens of African heritage.
The sad reality is that the perpetuation of two systems of law continues to create some conflict, albeit hidden, in the personal lives of Zambians who must choose which system of law must govern their affairs to the exclusion of the other. To require that citizens must comply with both systems of law simultaneously is equally an unnecessary burden and a perpetuation of the very discriminations that the attainment of independence sought to extinguish. A Zambian scholar acknowledged this divide and stated that it is in fact not necessary.
The outward co-existence of two legal systems seemingly at odds, in practice, means that African customary law, though practised by a vast majority of citizens, cannot be recognised in the highest courts of the land, unless it is considered on an appeal. The late Chief Justice of Zambia, Justice Irene Mambilima referred to a need to improve on the traditional ways of solving disputes which provide a win-win situation for the parties as opposed to an adversarial way of resolving disputes. Mediation, a mechanism of alternative dispute resolution (ADR) offers this opportunity to all citizens in society regardless of which legal system they adopt. It has in fact been practised on the continent since time immemorial but has gained international recognition in western countries since the late 1970s. This is not new to Zambia, it has simply been given a name. The Zambian Constitution provides for the use of alternative dispute resolution including, traditional dispute resolution which should guide the exercise of judicial authority. The Constitution now recognises the necessity of other means of dispute resolution to improve access to justice.
Mediation, in particular, could provide a system of dispute resolution that bridges the gap between the formalities of statutory law and the unwritten customary law. Mediation involves a neutral intermediary who helps the parties reach a mutually satisfactory settlement. It allows for the full expression of needs and interests regardless of the system of law that these may be anchored on. Beyond the resolution of disputes, it has the ability to preserve and even transform the relationship of the parties involved. The advancement of mediation in Zambia could very well be the panacea to the internal conflict that exists in the lives of ordinary people who find themselves trapped in between two legal systems by no doing of their own. The use of mediation to explore all the needs, interests, values, perspectives, cultural underpinnings of Zambians who practice a blend of two legal systems, could eliminate the internal conflict that exists in navigating family, land and any other disputes in Zambia today.