Protecting the right to freedom from discrimination in Zambia: Understanding the constitutional and legislative grounds
| Published date | 01 September 2019 |
| Author | Jamil Ddamulira Mujuzi |
| DOI | 10.1177/1358229119883099 |
| Date | 01 September 2019 |
| Subject Matter | Articles |
Article
Protecting the right
to freedom from
discrimination in Zambia:
Understanding the
constitutional and
legislative grounds
Jamil Ddamulira Mujuzi
Abstract
The Constitution of Zambia prohibits discrimination in different articles and the grounds
on which a person may not be discriminated against are included in two different con-
stitutional provisions – Article 23(3) and Article 266. Apart from the Constitution, some
pieces of legislation prohibitdiscrimination and providefor grounds against which a person
may not be discriminated against which are not provided for in the Constitution. Jur-
isprudence from Zambian courts has not been consistenton the question of whether the
list of the grounds against which a person may not be discriminated against is exhaustive.
With the exceptionof the ground of disability, the Constitution does not define the other
grounds on which a person may not be discriminated against. In this article, it is argued,
inter alia, that the existence of two constitutional provisions providing for different
grounds could create uncertainty among some litigants and judicial officials and that in
cases where the Constitution does notdefine the grounds of discrimination, courts could
resort to relevant case law, legislation or dictionaries to define such grounds.
Keywords
Zambia, discrimination, grounds, constitution, legislation, interpretation
Faculty of Law, Department of Criminal Justice and Procedure, University of the Western Cape,
Bellville, South Africa
Corresponding author:
Jamil Ddamulira Mujuzi, Faculty of Law, Department of Criminal Justice and Procedure, University
of the Western Cape, Private Bag X17, Bellville Bellville 7535, South Africa.
Email: djmujuzi@gmail.com
International Journalof
Discrimination and theLaw
2019, Vol. 19(3-4) 155–177
ªThe Author(s) 2019
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DOI: 10.1177/1358229119883099
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Introduction
The Constitution of Zambia prohibits discrimination in different articles. Zambia has
also acceded to or ratified international and regional human rights instruments which
prohibit discrimination,
1
and Zambian courts have relied on some of these instruments in
some cases dealing with discrimination issues.
2
The Zambian Supreme Court held that
the fundamental right to freedom from discrimination is superior to common law rights
such as the right to natural justice.
3
The Supreme Court held that on the basis of Article
28 of the Constitution,
4
both natural and juristic (legal) persons who allege that any right
in the Bill of Rights, including the right to freedom from discrimination ‘has been, is
being or is likely to be contravened’ can petition the High Court for redress and that for
the petitioner to have locus standi he does not have to prove that he has been directly
affected by the alleged contravention.
5
Unlike the constitutions of some African coun-
tries which include all the grounds on which a person may not be discriminated against in
a single constitutional provision,
6
the Constitution of Zambia includes these grounds in
two different constitutional provisions – Article 23(3) and Article 266. Apart from the
Constitution, some pieces of legislation prohibit discrimination and provide for grounds
against which a person may not be discriminated against which are not provided for in
the Constitution. Jurisprudence from Zambian courts has not been consistent on the
question of whether the list of the grounds against which a person may not be discrimi-
nated against is exhaustive. With the exception of the ground of disability, the Consti-
tution does not define the other grounds on which a person may not be discriminated
against. In this article, it is argued that the existence of two constitutional provisions
providing for different grounds of discrimination could create uncertainty among some
litigants and judicial officials. This is because they may not be sure as to which consti-
tutional provision is applicable to the facts before them. It is also argued that in cases
where the Constitution does not define the grounds of discrimination, courts could resort
to relevant case law, legislation or dictionaries to define su ch grounds. It is argued
further that in order to avoid amending the Constitution every time a new ground of
discrimination comes up, Zambia may have to adopt an open-ended as opposed to a
closed constitutional provision which provides for the grounds on which a person may
not be discriminated against. This will give courts flexibility in deciding whether a
person was discriminated against. The author will start with the constitutional grounds
against which a person may not be discriminated against.
Constitutional grounds
Zambia was colonised by the British and the colonial rule was characterised by, inter
alia, discriminatory citizenship laws. For example, the British Nationality Act,
7
which,
as Zambian courts have held, was applicable to Zambia,
8
provided that a person could
only be a citizen of Zambia (as one of the colonies) by descent if, at the commencement
of the Act, his father was a citizen of Zambia at the time of his/her (that person’s) birth.
9
In other words, a person could not be a citizen by descent on the ground that his/her
mother was a citizen of Zambia at the time of that person’s birth. The Act also provided
that a woman married to citizen of one of the British colonies, including Zambia, could
156 International Journal of Discrimination and the Law 19(3-4)
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