Law Commons^™

Vol. 3, Issue 2 Masthead

SAIPAR Case Review

No abstract provided.

Mutembo Nchito V Attorney General 2016/Cc/0029 (27 October 2020), O'Brien Kaaba, Pamela Towela Sambo

SAIPAR Case Review

No abstract provided.

Zccm Investment Holdings Plc V Konkola Copper Mines Plc And Vedanta Resources Holdings Ltd 2019/Hp/0761, Sangwani Patrick Ng’Ambi

SAIPAR Case Review

No abstract provided.

Vedanta Resources Holdings Limited V Zccm Investment Holdings Plc And Konkola Copper Mines Plc, Caz/08/249/2019, Sangwani Patrick Ng’Ambi, Chanda Chungu

SAIPAR Case Review

No abstract provided.

Itula And Others V Minister Of Urban And Rural Development And Others 2020 (1) Nr 86 (Sc), Dunia P. Zongwe

SAIPAR Case Review

At the heart of this electoral case lies deep questions about what it means exactly to ‘know’ something and about a few steps that judges should avoid when reasoning from unknowns. In short, the court refused to cancel a presidential election because those who challenged that election in court failed to prove that the absence of verifiable paper trail changed the outcome of the election. If a judge lacks evidence of any claim put forth by the parties, they cannot lean on the absence of evidence to arrive at any conclusion, except to conclude that they do not know whether …

Okafor V Nweke [2007] 10 Nwlr (Pt. 1043) 521, Oluwakemi A. Dowodu-Sipe

SAIPAR Case Review

No abstract provided.

Bill 10, If Enacted, Will Install A Constitutional Dictatorship And Undermine Democracy In Zambia, Muna B. Ndulo

Southern African Journal of Policy and Development

Zambia has made several attempts to elaborate a democratic constitution that promotes good governance, inclusiveness, citizen participation, accountability, and the separation of powers between the three arms of government-parliament, the judiciary, and the executive. Success has been elusive largely because the processes used have been inappropriate for consensus building. The latest attempt, the Constitution Amendment Bill No. 10 of 2019, which came out of a ruling party dominated constitutional conference, is presently before parliament. The constitutional conference excluded key stake holders such as the main opposition party and civil society. The paper critically examines the contents of Bill 10 and …

Zambian Disability Policy Stakeholder Perspectives On The Ways That International Initiatives Influence Domestic Disability Policies, Shaun Cleaver, Matthew Hunt, Virginia Bond, Raphael Lencucha

Southern African Journal of Policy and Development

Disability has attracted attention in international human rights and development circles and Zambian domestic policy. The purpose of this research was to explore the perceptions of Zambian disability policy stakeholders about the ways that two international initiatives, namely the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and the Sustainable Development Goals (SDGs), are being reflected in domestic policy. We collected data through semi-structured interviews with 22 policy stakeholders (12 disability advocates and 10 policymakers) and analysed these data using thematic analysis. The UNCRPD was perceived to be progressively integrated into Zambian disability policy although insufficiently implemented …

Law Association Of Zambia And Chapter One Foundation Limited V Attorney General 2019/Ccz/0013/0014, Pamela T. Sambo, O'Brien Kaaba

SAIPAR Case Review

The Constitutional Court of Zambia on 29th November 2019 rendered its highly anticipated (abridged) judgment in the case of Law Association of Zambia and Chapter One Foundation Limited v Attorney General 2019/CCZ/0013/0014. In June 2019 the Minister of Justice introduced into the National Assembly the Constitution of Zambia (Amendment) Bill No. 10 (generally referred to as Bill 10) intended to extensively amend the Constitution. The Bill had been criticized by many stakeholders as it is seen as an attempt to enhance executive powers and undermine constitutionalism. In August 2019, the Law Association of Zambia and Chapter One Foundation Limited commenced …

Tort As Private Administration, Nathaniel Donahue, John Fabian Witt

Cornell Law Review

What does tort law do? This Article develops an account of the law of torts for the age of settlement. A century ago, leading torts jurists proposed that tort doctrine's main function was to allocate authority between judge and jury. In the era of the disappearing trial, we propose that tort law's hidden function is to shape the process by which private parties settle. In particular, core doctrines in tort help to structure and sustain the systems of private administration by which injury claims are actually resolved. Though an observer could hardly guess it from judge-centric theories of tort or …

Vol. 3, Issue 1 Table Of Contents

SAIPAR Case Review

No abstract provided.

Vol. 3, Issue 1 Masthead

SAIPAR Case Review

No abstract provided.

Ethel Dlamini (Born Gule) V Prince Chief Gasawangwane (93/2018b) [2019] Szsc 40 (Judgment 8 October 2019), Simangele D. Mavundla

SAIPAR Case Review

The significance of the case of Ethel Dlamini is found in the Supreme Court’s progressive interpretation of the chain of events that were being inflicted to Mrs Dlamini as a violation of her dignity. The court could have looked into the requirements of an interdict to see if Mrs Dlamini’s case was in line with them or not. These are whether the applicant has a prima facie right; apprehension of irreparable injury, and that there is no other satisfactory remedy. Instead, the Court observed that Mrs Dlamini was deprived arbitrarily of the field given to her by her father-in-law and …

Editor's Note, O'Brien Kaaba

SAIPAR Case Review

No abstract provided.

Daniel Pule And Others V Attorney General And Others Selected Judgment No. 60 Of 2018, James Kayula

SAIPAR Case Review

No abstract provided.

Richard Musenyesa V. Indo Zambia Bank Limited Appeal No. 214/2016 (2020), Chanda Chungu

SAIPAR Case Review

In Richard Musenyesa v. Indo Zambia Bank Limited, the Supreme Court dealt with an employee whose conditions of service were altered by their employer. The entitlement to gratuity at the end of the employment relationship was not mentioned in the new conditions of employment despite being in the previous conditions that regulated his employment.

The Supreme Court provided that where acquiescence is intended to be assumed from conduct, credible evidence will have to be led, showing that the employee was by clear notice given by the employer indeed aware of the variation, understood the implications and its full extent, before …

Volume 105, Number 4 Table Of Contents

Cornell Law Review

No abstract provided.

Executive Privilege - With A Catch: How A Crime-Fraud Exception To Executive Privilege Would Facilitate Congressional Oversight Of Executive Branch Malfeasance In Accordance With The Constitution's Separation Of Powers, Anthony W. Wassef

Cornell Law Review

A crime-fraud exception to assertions of executive privilege in response to congressional subpoenas would help level the playing field between the two branches in those moments when Congress is most needed to serve as a check and balance on the executive branch. A crime-fraud exception would signal to executive branch officials that executive privilege will not conceal their malfeasance; would counteract hyperpartisanship as a force that insulates executive branch officials from the consequences of their actions; and would rein in the expansive reach of protective assertions of executive privilege. For years, Congress has surrendered power to the executive branch. A …

The Corporate Privacy Proxy, Shaakirrah R. Sanders

Cornell Law Review

This Article contributes to the First Amendment corporate privacy debate by identifying the relevance of agriculture security legislation, or ag-gag laws. Ag-gag laws restrict methods used to gather and disseminate information about commercial food cultivation, production, and distribution-potentially creating a "right" to control or privatize nonproprietary information about animal and agribusinesses. Yet, corporate privacy rights are unrecognized as a matter of U.S. constitutional law, which implicates the sufficiency of the justification for ag-gag laws. This Article ponders whether "security" acts as a proxy for an unrecognized right to corporate privacy in the ag-gag context. Part I of this Article surveys …

The Paradoxical Impact Of Scalia's Campaign Against Legislative History, Stuart Minor Benjamin, Kristen M. Renberg

Cornell Law Review

Beginning in 1985, Judge and then Justice Antonin Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia's position, in line with his textualism, was that legislative history was irrelevant and judges should avoid invoking it. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with greater support from ideological conservatives. In this Article, we consider the role that political party and timing ofjudicial nomination played in circuit judges' use of legislative history. Specifically, we hypothesize that Republican circuit judges were more likely to respond to the attacks on legislative history …

Daniel Mwale V Njolomole Mtonga And Another Appeal No.004 (2019), Dunia P. Zongwe

SAIPAR Case Review

This is a classic case of sour grapes. After failing to secure a favourable decision from the judges, the losing party accused them of prejudice. This happened in the Mwale v Mtonga matter, decided by the Supreme Court of Zambia in 2019. When his appeal failed, Daniel Mwale reacted by accusing that court and the entire judiciary of corruption.

The Mwale v Mtonga dispute brings up a number of themes: perceptions of corruption in the courts, unjustified public attacks against the judiciary, constraints on judges’ ability to respond to those attacks, the airing of corruption allegations in the wrong forum, …

Moses Lukwanda And 9 Others V Zambia Airforce Projects Limited And 7 Others Caz/08/323/2019, Pamela T. Sambo

SAIPAR Case Review

No abstract provided.

Closing The Racial Gap In Financial Services: Balancing Algorithmic Opportunity With Legal Limitation, Julia F. Hollreise

Cornell Law Review

Algorithmic credit assessment models wear two faces: one operating to perpetuate centuries of racial stratification and otherization in the United States' capitalist system, and one standing poised to correct such injustice by smoking out both inherent human biases and the remnants of past discrimination that are embedded in the system. Although the United States has undertaken efforts to equalize Black Americans' access to opportunities in education, employment, and other critical benefits, no modern and sustained effort has been made to ensure that the Black community is extended credit on sufficient and equal terms, without the effects of prior inequities continuing …

An Essay On The Quieting Of Products Liability Law, Aaron D. Twerskii

Cornell Law Review

For several decades, courts and commentators have disagreed as to whether the standard for liability in product design defect cases should be based on risk-utility tradeoffs or disappointed consumer expectations. Although a strong majority opt for risk-utility a significant minority of courts adopt the consumer expectations test. This Essay contends that as a practical matter in jurisdictions that allow for recovery in design defect cases on a consumer expectations theory, plaintiffs introduce a reasonable alternative design as the predicate for recovery. In fifteen of the seventeen states that allow recovery based on consumer expectations the author could not find a …

Chishimba Kambwili V Attorney General 2019/Cc/009, O'Brien Kaaba, Pamela T. Sambo

SAIPAR Case Review

The Constitutional Court on 18th February 2020 rendered its judgment in the case of Chishimba Kambwili v Attorney General 2019/CCZ/009. The petitioner, then an estranged Member of Parliament for the ruling Patriotic Front (PF), had his seat declared vacant in February 2019 by the Speaker of the National Assembly, Patrick Matibini, on the ground that by acting as a consultant for an opposition party (under which he was not elected to Parliament), he had crossed the floor.

The Constitutional Court found the action of the Speaker to have been unconstitutional as the office is not vested with power to interpret …

George Peter Mwanza And Melvin Beene V Attorney General Appeal No. 153/2016 Sc Selected Judgment No. 33 Of 2019, Ellah T.M. Siang’Andu

SAIPAR Case Review

On the 9th December 2019, the Supreme Court of Zambia delivered a landmark decision changing the human rights jurisprudence in the context of protecting and preserving the fundamental human rights of prisoners. The appellants were HIV positive and were both in custody at the Lusaka Central Prison. They petitioned the High Court contending breach of their rights to life and protection from inhuman treatment contrary to the Republican Constitution. The argument of the appellants was that the State’s failure to consider their dietary and health needs, due to the budgetary and logistical restraints, fell short of all prescribed standards for …

Abedinego Kapeshi And Another V The People Scz Selected Judgment No. 35 Of 2017, Gift Sangende

SAIPAR Case Review

In 2017, the appellants, being dissatisfied with the judgment of the Kabwe High Court appealed to the Supreme Court. They contended among other things, that the trial court erred in law to convict the appellants of murder. They further stated that the court erred in law to sentence the appellants to life imprisonment, as the sentence was excessive.

This case accorded the Supreme Court a great opportunity to discuss the belief in witchcraft and the offending conduct premised on that belief, as well as the multiple violations that are coupled with the same belief. Remarkably, the Court moved away from …

Are Publicly Traded Corporations Disappearing?, Margaret M. Blair

Cornell Law Review

Corporate law scholars and economists have expressed concern recently about the fact that the number of publicly traded corporations in the United States has declined significantly since a peak in the late 1990s. In this Essay, in honor of the late Professor Lynn Stout, who devoted much of her career to the study of large publicly traded corporations, I show that despite a decline in the number of such corporations in the last two decades, they collectively account for about the same share of total economic activity as they have for the last six decades. While there has been turnover …

Corporate Law And The Myth Of Efficient Market Control, William W. Bratton, Simone M. Sepe

Cornell Law Review

In recent times, there has been an unprecedented shift in power from managers to shareholders, a shift that realizes the long-held theoretical aspiration of market control of the corporation. This Article subjects the market control paradigm to comprehensive economic examination and finds it wanting.

The market control paradigm relies on a narrow economic model that focuses on one problem only: management agency costs. With the rise of shareholder power, we need a wider lens that also takes in market prices, investor incentives, and information asymmetries. General equilibrium (GE) theory provides that lens. Several lessons follow from reference to this higher-order …

Cryptocommunity Currencies, J. S. Nelson

Cornell Law Review

What are cryptocurrencies: securities, commodities, or something else? Maybe they are a new form of established currency-a non-sovereign fiat currency. Like other self-governing bodies, the communities that issue cryptocurrencies should be judged on how well they support their currencies. This analysis is not meaningfully different from how we have evaluated traditional sovereign issuers of currency. Indeed, as traditional-sovereign-issued currency becomes entirely digital, functional distinctions between traditionally sovereign-backed flat currency and widely accepted non-sovereign fat currency start to disappear. The primary way then to distinguish the value of such currencies from each other becomes the quality of their institutional backing. Through …