Friday, November 20, 2009

After the Trial: A Case for Tort Reform in Zambia.

Now that reason has prevailed in the frivolous case, against Zambian journalist Chansa Kabwela., it is perhaps time to reflect how we got to this point.
I found BBC ‘s Jo Fidgen’s comment after observing the whole charade most telling;
It seems to me that Zambia's social conservatism is in tune with a Britain that no longer exists.” she said.
Against strong attempts to avoid drawing a post hoc ergo propter hoc conclusion, I wonder -

Was there ever a time, when Zambia’s social conservatism was ever in tune with Britain?

It seems to me that her majesty’s forgone empire has always cast that awful spell in all her former dominions that taught even coerced her subjects - to present the appearance and behavior of a British social system.
In Zambia as in much of the former colonies, keeping up that appearance is still far more important than the substance of daily life.
So sacred is the legacy of that British law as it was handed down, that we can not bear to amend it in the slightest, to right any modern day wrongs. Even draconian laws that were specifically conceived in the colonial period to enforce public order, in the face of legitimate insurrections for freedom by the natives are preserved and still applied in a present day independent Zambia.

The case of the “porn journalist” poignantly displays the dilemma of a present day Zambian stuck in a legal system framed for a different time.
The actual victim in this case, the wronged woman whose baby and privacy were fatally assaulted, can not sue for redress. There is no legal remedy for her against a vicious affront perpetuated by the hospital and the state.
In the United Kingdom  the NHS constitution provides remedies to make a claim for judicial review for anyone who has been directly or indirectly affected by an unlawful act or decision of an NHS body. If a claim is for just, compensation is paid out. While the British system has moved on, the Zambian system still returns a fatal attraction to the fidelity of colonial law.

I think  time has come, for Zambian legal minds to write and enact our own laws and craft a legal system that will address the challenges of modern day Zambian lives.  It is time for Zambian legal practitioners to give up those white wigs made from horse hair that look so out on place on an African head. My I suggest the current Zambian penal code and Tort law as the starting point.

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