THE CONSTITUTIONAL PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS IN ZAMBIA: AN HISTORICAL AND COMPARATIVE STUDY by Lawrence Silas Zimba A Thesis presented for the Internal Degree of Doctor of Philosophy in the Faculty of Laws of the University of London, School of Oriental and African Studies , June 1979 ProQuest Number: 11010502 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11010502 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 ABSTRACT This study examines the legal bases for the protection of human rights in the constitutional development of Zambia, and indicates how they have operated in practice. The approach adopted in discussing this subject is comparative in that the Zambian experiences and events are related to those that have taken place in other Commonwealth African countries, or indeed in any common law jurisdiction. The work is divided into four parts and consists of ten chapters. The idea that there must be some limits to the power of the state to interfere with man’s rights is not new. Chapter One in Part I therefore traces the evolution of the idea of human rights as rooted in the theories of "natural law" and "natural rights". It also examines the influence and impact of international law on the development and spread of human rights throughout the world, not least in Africa. The doctrine of "inalienable" human rights was borrowed by Africa from Europe and from America. Chapter Two discusses this theme and unfolds the avenues through which this doctrine found its way into the many independence constitutions of Africa. Chapter Three, on the other hand, examines the legal mechanisms through which human rights were protected and invaded during the colonial era before independence. The decision finally to incorporate a bill of rights in the self- government of Northern Rhodesia (now Zambia) was, as elsewhere in Africa, precipitated by certain active political, economic and social issues. Chapter Four discusses these. Part II opens with Chapter Five which examines the content and salient features of the Zambian Bill of Rights. Chapter Six examines the role played by the courts in the enforcement of the guaranteed rights. The nature of the conflict between the over­ riding needs of socio-economic development in an emergent state and the protection of property rights are analysed in Chapter Seven. In Part III, the question whether a one-party state constitutes a threat to human rights, and to democracy and to constitutionalism is discussed in Chapters Eight and Nine. Part IV concludes the work with Chapter Ten appraising the problems affecting the constitutional protection of human rights in Africa, and suggests some alternative modes for their protection. ^ 4 ACKNOWLEDGEMENTS I would like to record ray special gratitude and thanks to my supervisor, Professor J.S. Read, Professor of Comparative Public Law with special reference to Africa of the University of London, School of Oriental and African Studies, under whom I was fortunate enough to undertake this study, and from whose experience as a teacher of African constitutional law I derived enormous benefit. Professor Readfs critique and guidance of this thesis in all its stages proved to be particularly helpful in the efforts he kindly made in drawing my attention to some interesting aspects of my work with which I could not otherwise have dealt. Indeed, his uninhibited enthusiasm and his continual interest in my research have been a spur to the completion of this work. My special indebtedness must also go to the members of the staff of the Institute of Advanced Legal Studies, not only for the excellent services which they render to all research students, but also for providing me with a carrel from which I wrote a greater part of this thesis. I would also like to thank the Librarians and members of the staff of the libraries of the School of Oriental and African Studies, The Royal Commonwealth Institute, the Foreign Office, the Public Records Office, the University of Zambia,ai&4 the High Court for Zambia;, the Keeper and staff of the Zambian National Archives, the Zatiibia'High Commission Office, London, and the Research Bureau of the United National Independence Party (UNIP) in Lusaka. I must also take this opportunity to express my thanks to Mr. Justice Annel Silungwe, the Chief Justice for Zambia, for the discussions he willingly agreed to have with me about aspects of my work, and for 5 answering my questions on the Constitution of Zambia. Likewise, I should also like to thank those lawyers of the Zambian Bar who kindly gave their previous time to attend to my enquiries, and commented about certain aspects of Zambia’s constitutional provisions relating to human rights. My list of those who rendered valuable assistance to me would be incomplete if I did not mention the role played by my fellow colleages and members of the staff of the School of Law, University of Zambia - Mr. Joshua Kanganja, Mr. John Mulwila, and Mr. Remmy Mushota. Through discussions they willingly had with me on many aspects of my work, and through their kind gesture of allowing me to look at some of their materials in the form of cases, official reports, etc., they indeed lightened my task. My work also owes its enrichment to the work of many writers, commentators, etc., on African political and constitutional affairs, and on Zambian history and anthropological studies. I should like to pay my tribute to the work so ably done by these writers/commentators in every area that this study has been able to touch on. I should also like to express my gratitude to Miss Janet Marks for her typing of this thesis, and for the interest she developed in my work. Also for the trouble she took to put my footnotes in order. However, I should like to make a final remark here, namely that whatever assistance I have derived from the above mentioned aides and well-wishers, the shortcomings of this work are naturally mine. Lawrence Silas Zimba,’LL.B., LL.M(Zambia) 6 ABBREVIATIONS A.C. Appeal cases (House of Lords and Privy Council, U.K.) A.G. Attorney-General A.J. til-' Journal of International Law A.L.: l.(S.L.) African Law Journal (Sierra Leone) ALL : 5.R. All-England Reports ALL ] tf.R. All-Nigerian Reports B . S V. Co. British South Africa Company B.Y. [.L. British Year of International Law Cap. Chapter (Zambia) C.L.] ?. Current Legal Problems Cmnd Command Paper C.O. Colonial Office Cols Columns CPP Convention People's Party (Ghana) D.P.]i. Director of Public Prosecutions E.A.. r. East Africa Journal E.A.lj.J. East African Law Journal E.A.]j.R. East African Law Reports F.O. Foreign Office G.L.]I. Ghana Law Reports G.N. Government Notice H.C. House of Commons H.C. Deb. House of Commons Debates (UK) H.L. Deb. House of Lords Debates HM His/Her Majesty 7 I.C.L.Q. International and Comparative Law Quarterly J • A tL • Journal of African Law J.A. S. Journal of African Society J.M.A.S. Journal of Modern African J KANU Kenya African National Union K.B. King’s Bench (Reports) KADU Kenya African Democratic Union KPU Kenya People’s Union L.C. Legislative Council Leg.Ass.Deb. Legislative Assembly Debates Leg.Co.Deb. Legislative Council Debates L.R.N.R. Law Reports of Northern Rhodesia M.L.R. Malaya Law Review M.L.R. Modem Law Review Nat.Ass.Deb. National Assembly Debates N.E.R. North-Eastern Rhodesia N.L.R. Nigeria Law Reports N.R. Northern Rhodesia N.R.L.R. Northern Rhodesia Law Reports N.R.L.R. Northern Region Law Reports N.W.R. North-Western Rhodesia P.C.I.J. Permanent Court of International Q.B. Queen’s Bench (Division) R. & N. Rhodesia and Nyasaland R. & N.L.R. Rhodesia and Nyasaland Law Reports S.I. Statutory Instruments S.J.R. Selected Judgment of Rhodesia TANU Tanganyika African National Union T.L.R. Times Law Reports UFP United Federal Party UK United Kingdom UNIP United National Independence Party (Zambia) UP United Party (Zambia) UPP United Progressive Party (Zambia) W.L.R. Weekly Law Reports (UK) V.R.U. Verfassung und Recht im ubersee Z.L.J. Zambia Law Journal Z.L.R. Zambia Law Reports 9 TABLE OF CONTENTS Page ABSTRACT 2 ACKNOWLEDGEMENTS 4 LIST OF ABBREVIATIONS 6 TABLE OF CONTENTS 9 PART I : AN HISTORICAL BACKGROUND TO THE LEGAL PROTECTION 16 OF HUMAN RIGHTS. IN COMMONWEALTH AFRICA Chapter 1 : HISTORICAL ORIGINS AND DEVELOPMENT 17 OF THE CONCEPT OF HUMAN RIGHTS A. Introduction 17 B. Human Rights in World History 19 i) The substance of the concept 20 of "natural rights" ii) The role of Ancient Greece 23 iii) The role of the Roman 24 legal theories iv) The role of early Christian 27 doctrines v) The impact of feudalism 30 vi) The "Social Contract 32 Doctrine" vii) From England to America 34 viii) The role of the French 41 Declaration of the Rights of Man and of the Citizen, 1789 C.