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Cover design: Katarina Zeravica Contents List of Tables������������������������������������������������������������������������������������������������������������������������������������������ 7 Acknowledgements������������������������������������������������������������������������������������������������������������������������������� 8 Executive Summary������������������������������������������������������������������������������������������������������������ 10 Area 1: Demand Side of Access to Justice������������������������������������������������������������������������������������������������� 10 Area 2: ADR Processes and Systems���������������������������������������������������������������������������������������������������������� 11 Recommednations�������������������������������������������������������������������������������������������������������������������������������������� 11 Acronyms��������������������������������������������������������������������������������������������������������������������������������������������������������������������� 13 1. Introduction������������������������������������������������������������������������������������������15 2. Access to justice in Zambia������������������������������������������������������������������18 Situational Analysis������������������������������������������������������������������������������������������������������������������������������������� 18 Box 1: Access to justice in Zambia – key concerns���������������������������������������������������������������������������������� 21 Challenges on the Demand Side: Kawambwa District Case Study�������������������������������������������������������� 22 3. Alternative Dispute Resolution in Zambia�����������������������������������������28 Introduction������������������������������������������������������������������������������������������������������������������������������������������������� 28 Conceptualizing ADR in Pluralistic Zambia����������������������������������������������������������������������������������������������� 28 Situational Analysis������������������������������������������������������������������������������������������������������������������������������������� 29 Box 2: Spotlight on a key ADR Initiative: The Lusaka International Arbitration Centre���������������������� 34 Key Impediments: Modern ADR���������������������������������������������������������������������������������������������������������������� 42 Key Impediments: Traditional ADR����������������������������������������������������������������������������������������������������������� 45 4. Recommendations��������������������������������������������������������������������������������48 Recommendations: Access to Justice in Underserved Communities��������������������������������������������������� 48 Recommendations: ADR Processes and Systems����������������������������������������������������������������������������������� 52 5. Implementation of the Judicial Sector PIER and ADR Recommendations��������������������������������������������������������������������������������60 Context��������������������������������������������������������������������������������������������������������������������������������������������������������� 60 Integration of Report Recommendations to the Strategic Plan������������������������������������������������������������ 61 6. Report Conclusion���������������������������������������������������������������������������������67 Annexes������������������������������������������������������������������������������������������������������69 References�������������������������������������������������������������������������������������������������76 6 Assessment of Access to Justice and Alternative Dispute Resolution Systems List of Tables Table 1: Legal framework for access to justice in Zambia���������������������������������������������������������������������������� 19 Table 2: Zambia’s standing on access to justice indicators�������������������������������������������������������������������������� 20 Table 3: Key findings on demand side justice constraints in Kawambwa District������������������������������������� 24 Table 4: Main forms of ADR: Modern System������������������������������������������������������������������������������������������������ 30 Table 5: Main forms of ADR: Traditional System������������������������������������������������������������������������������������������� 32 Table 6: ADR Infrastructure Gaps�������������������������������������������������������������������������������������������������������������������� 33 Table 7: Target Demographic for ADR������������������������������������������������������������������������������������������������������������� 35 Table 8: Intersection of Formal Court System with Modern ADR���������������������������������������������������������������� 38 Table 9: Factors Impacting Accessibility of ADR Mechanisms���������������������������������������������������������������������� 39 Table 10: Reasons for low awareness of ADR������������������������������������������������������������������������������������������������ 39 Table 11: Recommendations to address justice barriers in underserved communities�������������������������� 49 Table 12: Modern ADR Recommendations���������������������������������������������������������������������������������������������������� 52 Table 13: Traditional ADR Recommendations������������������������������������������������������������������������������������������������ 57 Table 14: Strategic Objective 6: Improve Promotion of Good Governance (PEIR)������������������������������������� 62 Table 15: Strategic Objective 6: Improve Promotion of Good Governance (A2J-ADR)������������������������������ 63 Table 16: Strategic Objective 7: Improve stakeholder collaboration and coordination (PEIR����������������������������������������������������������������������������������������������������������������������������� 64 Table 17: Strategic Objective 7: Improve stakeholder collaboration and coordination (A2J-ADR)��������������������������������������������������������������������������������������������������������������������� 64 Table 18: Strategic Objective 8: Improve financial capacity and management (PEIR)������������������������������� 65 Table 19: Strategic Objective 8: Improve financial capacity and management (A2J-ADR)��������������������������������������������������������������������������������������������������������������������������������������������� 65 Assessment of Access to Justice and Alternative Dispute Resolution Systems 7 Acknowledgements This report was prepared by a team led by Lobna The team would like to express our sincere Ahmed (Task Team Leader and Senior Public gratitude to Mrs. Mwenya Kaela Bwalya, Permanent Sector Specialist) and comprising Donna Andrews Secretary (Legal) from the Ministry of Justice and (Lead Governance Specialist), Rama Krishnan her team for their excellent collaboration, support Venkateswaran (Lead Public Sector Specialist), and commitment to strengthening the Alternative Kutemba Kambole (Program Assistant), Mwila Dispute Resolution processes in Zambia. Mbulo (Team Assistant) and the team from the Southern African Institute for Policy and Research This work has been funded by the Governance and (Tinemenji Banda, Associate Director, Legal Institutions Umbrella Trust Fund Program.  The Division; Raylene Cruz). The report was edited and World Bank’s Governance & Institutions Umbrella designed by Katarina Zeravica. Program (G&I) is a multi-donor trust fund established in 2022. G&I is supported by the The team benefited from peer review comments Chandler Foundation, the Ministry of Foreign given by Christine Owuor (Senior Public Sector Affairs of Estonia, the European Union, the Specialist) and Eva Melis (Senior Governance Hewlett Foundation,  the Ministry of Economy and Specialist). The team would also like to Finance of the Republic of Korea, the MacArthur acknowledge the contribution from Rama Krishnan Foundation, the  Swiss State Secretariat for Venkateswaran (former Task Team Leader and Economic Affairs (SECO), and the UK Government’s Lead Public Sector Specialist). Foreign, Commonwealth & Development Office (FCDO). To learn more, please visit www. The team would like to thank Manuel Vargas worldbank.org/giup (Practice Manager, Governance Global Practice, East Africa) and Achim Fock (Country Manager, Zambia) for their overall advice, guidance and support throughout the development of this report. 8 Assessment of Access to Justice and Alternative Dispute Resolution Systems Assessment of Access to Justice and Alternative Dispute Resolution Systems 9 ES. Executive Summary This Assessment Report analyzes the following • Legal illiteracy: People are generally areas of the Zambian justice sector: unaware of their rights and/or are not sufficiently empowered to use the legal 1. Factors impeding demand side/user aspects system to enforce their rights. of access to justice, especially in under- • Limited-to-no legal service delivery and served areas of Zambia; and legal aid: Legal advice and/or representation 2. Alternative Dispute Resolution (ADR) is generally not available. processes and systems in Zambia (and their • Entrenched cultural beliefs: Entrenched potential to offset the constraints of the cultural beliefs in the district discourage use overburdened formal court system). of the formal legal system. • Extreme poverty: Direct and indirect Area 1: Demand Side of economic costs of seeking justice (court fees, transport to court) discourage use of the Access to Justice formal court system. • Unregulated traditional mechanisms: To gain a real-time perspective on the unique Discretionary fee structures, lack of access to justice challenges faced in underserved appeal processes, lack of accountability areas, a field-study was conducted in Kawambwa mechanisms, and asymmetrical relationships District to identify how users experience the between traditional leaders and subjects can justice system, and what key barriers they face pose access to justice risks for users. when accessing justice. The study solicited views • Context insensitive courts: Formal courts of service providers who regularly interface with are not user friendly: use of English, complex citizens with justice-related problems, as well as procedures, court filing fees, and the lack relevant state and non-state actors within the of legal aid ignore the socio- demographic community. Overall, respondents reported that realities of the district. very few legal problems are reported to and/or resolved by formal justice institutions like the • Gender inequality: Women face disparate police and courts. Instead, legal problems are access to justice burdens due to economic reported to and/or resolved by alternative actors dependence on men and entrenched including traditional leaders, faith communities, patriarchal views. political functionaries, the family system, and • Geographical barriers: Supply side justice community-based service providers. This infrastructure is not proximate to demand Assessment identifies probable barriers to access side need; rural dwellers have limited-to-no to justice in underserved areas (as informed access to formal courts. by the Kawambwa findings triangulated with findings from other methodologies used in this Assessment) which include: 10 Assessment of Access to Justice and Alternative Dispute Resolution Systems Area 2: ADR Processes Recommendations and Systems On the demand side access to justice, key recommendations put forward in this Assessment The Assessment confirms that there is a strong include to: business and access to justice case for enhanced mainstreaming of ADR in Zambia, noting its • Triage priority groups in underserved areas comparative advantages over the formal court to inform service delivery using tools such as system including flexibility, accessibility, and a country-wide legal needs survey. affordability. The Assessment outlines 10 key • Develop targeted legal literacy programming impediments to the uptake of modern ADR to improve public awareness of rights and (specifically, court annexed mediation, private enforcement mechanisms. mediation, employment mediation, arbitration, and criminal diversion). These include: • Simplify court processes to meet the context- specific needs of underserved communities. ADR has been excluded from the national On modern ADR, the key recommendation put and strategic justice agenda of the Ministry forward is to establish an MoJ-hosted and of Justice (MoJ), with a lack of senior political sustainably-financed, Technical Working endorsement of the ADR agenda. This has Group (TWG), to drive the ADR agenda by, inter resulted in poor mainstreaming and resourcing, alia: weak institutional grounding for ADR and insufficient supporting infrastructure. • Placing strategic emphasis on ADR in national and ministerial plans and policies, Data Gaps on ADR undermine evidence-based and securing senior, political endorsement policy making. There is no reliable, publicly of ADR. available data on ADR in Zambia. • Strengthening data capabilities to inform There is a lack of buy-in from, and ill- evidence-based ADR policy making. preparedness of, the legal fraternity on ADR. The • Strengthening the regulatory frameworks legal fraternity has shown a marked reluctance to underpinning ADR. mainstream ADR processes and practices. There are also insufficient training and capacitation • Stimulating industry demand for ADR opportunities on ADR. by making and disseminating a (costed) business case for ADR. Weak legal frameworks undermine the • Formulating a national policy on traditional effectiveness of ADR. This includes a lack mechanisms. of supervisory mechanisms for arbitrators, mediators and mediation settlements, and weak The final chapter of the Assessment aligns the institutional arrangements for overall oversight of MoJ’s recently released Strategic Plan 2022–2026 ADR processes. (MoJ, 2023) to some of the recommendations of this Assessment, as well as a previous World Bank- In terms of traditional forms of ADR, the supported Public Expenditure and Institutional Assessment found that traditional mechanisms Review of the Zambian Judicial Sector (WB, 2022). have been excluded from the strategic, policy, This aims to promote coordination and alignment and programmatic positioning of the MoJ. Such and ensure that the key recommendations of each positioning is required to leverage the comparative report remain on the policy formulation agenda of advantages of traditional mechanisms, and also the MoJ. safeguard the constitutional rights of citizens that use these forums. Assessment of Access to Justice and Alternative Dispute Resolution Systems 11 12 Assessment of Access to Justice and Alternative Dispute Resolution Systems Acronyms 8NDP Eighth National Development Plan LAB Legal Aid Board ACEZ Association of Consulting Engineers LAZ Law Association of Zambia of Zambia LIAC Lusaka International Arbitration ADR Alternative Dispute Resolution Centre AG Attorney General LSE Lusaka Stock Exchange BAZ Bankers Association of Zambia MAC Mediation Accreditation Committee CAM Court Annexed Mediation MOA Memorandum of Agreement CEO Chief Executive Officer MoF Ministry of Finance CIArB Chartered Institute of Arbitrators MoJ Ministry of Justice CLE Continuing Legal Education MOU Memorandum of Understanding CP Cooperating Partner NCIA Nairobi Centre for International Arbitration CSO Civil Society Organization NGO Non-governmental Organization DA District Administrator PEIR Public Expenditure and Institutional DAAB Adjudication and Dispute Avoidance/ Review Adjudication Board SP Strategic Plan DC District Commissioner TWG Technical Working Group ECZ Electoral Commission of Zambia USAID United States Agency for EIZ Engineering Institute of Zambia International Development FGD Focus Group Discussions UNCITRAL United Nations Commission on International Trade Law FIDIC International Federation of Consulting Engineers ZAA Zambia Association of Arbitrators FPP Focal Point Person ZACCI Zambia Chamber of Commerce and Industry GBV Gender-based violence ZCDR Zambia Centre for Dispute GRZ Government of the Republic of Resolution Zambia ZCM Zambia Chamber of Mines JCC Judicial Complaints Commission ZIALE Zambia Institute of Advanced Legal JSC Judicial Service Commission Education KAA Key Assessment Areas ZLDC Zambia Law Development Commission KII Key Informant Interview Assessment of Access to Justice and Alternative Dispute Resolution Systems 13 14 Assessment of Access to Justice and Alternative Dispute Resolution Systems 1. Introduction The World Bank (WB)-supported Public Expenditure Three overarching questions guide this inquiry: and Institutional Review of the Zambian Judicial Sector (PIER) of the Zambian Judicial Sector (WB, 1. How can the justice system best ensure that 2022) analyzed access to justice from the supply justice seekers are able to address their side only, making recommendations to streamline grievances and resolve conflicts in a timely processes and procedures within the Zambian and effective manner? courts to alleviate access challenges. There was 2. How widespread is the use of ADR processes therefore a need for a complementary study to and practices in Zambia, and how can these assess the following two areas: processes be strengthened? And; 1. Demand side aspects of access to justice, 3. What are the short and medium-term especially in under-served areas of Zambia; actions that Zambia can take to improve and access to the justice system in under-served areas, and what role can ADR mechanisms 2. Alternative Dispute Resolution (ADR) play? processes and systems in Zambia (and their potential to support the overburdened Structure of Report formal court system). This Assessment Report undertakes this The Assessment contains four substantive complementary study. components (Chapters 2–5). Chapter 2 comprises the access to justice component of this Assessment and Chapter 3 the ADR component. Objectives and Scope Chapter 4 proposes near-to-medium term recommendations to improve the access to justice The objective of the Assessment is two-fold: situation in underserved communities and to enhance the uptake of ADR. Chapter 5 examines 1. To understand the constraints that impede the Ministry of Justice (MoJ)’s new strategic plan access to justice in Zambia from a demand (SP) (2022–2026) (MoJ, 2023) through the lens of side/user perspective, particularly in under- the PEIR and this current assessment. served areas; and 2. To evaluate ADR systems and practices in Methodology Zambia and assess their potential to ease access to justice constraints. Data collection: Data was collected in Lusaka District and Kawambwa District between May Regarding the scope of the assignment, the 2023 and September 2023. The Assessment used judicial system in Zambia consists of the formal a mixed method approach to gather the data; court system and traditional dispute resolution including desk review, law and policy review, mechanisms. This study examines access to document review, and key informant interviews justice in a broad sense, examining barriers to, (KII) with stakeholders. Additionally, to gain a and potentialities for, access in both formal and real-time perspective on the operationalization of informal settings. The study also examines the unique access to justice challenges in underserved forms of ADR recognized and established by the areas, a field-study was conducted in Kawambwa formal law system, as well as traditional forms of District. During this study, a series of KIIs and ADR grounded in customary law norms. Focus Group Discussions (FGDs) with purposefully identified community leaders and justice sector actors was conducted. Assessment of Access to Justice and Alternative Dispute Resolution Systems 15 Data analysis: Data derived from the methods Access to Justice and ADR: The outlined above was triangulated to find patterns/ convergence and draw conclusions to answer the Interlink problem statement of this assignment, namely: What are the key demand side binding constraints Access to justice is more than access to courts. to justice in underserved communities? And: Access to justice broadly relates to a government’s What is the state of play of ADR systems ability to provide a forum—in court or out of court— and practices in Zambia, and what is their in which its citizens can effectively resolve legal potential to facilitate access to justice and disputes (Davies & Turku, 2011). Put differently, a ameliorate binding constraints in both formal society that meets the justice needs of its citizens and informal settings? is one that provides affordable, proximate, user- friendly, efficient, and effective dispute resolution mechanisms, whether formal or informal (Kariuki, Study Caveat 2018). The focus on one underserved district Seen in this way, limited access to courts should (Kawambwa) presents obvious shortcomings. not necessarily entail limited access to justice. Despite commonalities in underserved areas, Further, facilitating access to justice is not the local challenges vary. Notwithstanding, on-site exclusive preserve of the courts, and making courts investigations into demand side aspects of justice the “gold standard” for justice is problematic, since in far-flung areas of Zambia are unavailable. in many jurisdictions, pernicious inefficiencies, Therefore, findings from this field study can enrich distrust in the court system, and economic and the evidential base and provide a useful starting geographical inaccessibility of the court system point for an enhanced understanding of how diminish its effectiveness (Deason et al, 2018). residents in underserved communities confront and resolve their legal problems. The interlink between access to justice and ADR lies in the potential of the latter to facilitate the former. If satisfactory dispute resolution is at the core of access to justice aspirations, then ADR mechanisms are, at least hypothetically, one key way in which justice demands can be met. 16 Assessment of Access to Justice and Alternative Dispute Resolution Systems Assessment of Access to Justice and Alternative Dispute Resolution Systems 17 2. Access to justice in Zambia This component of the Assessment examines demand side access to justice constraints. The emphasis is on demand side justice barriers in remote and underserved areas of the country. The chapter proceeds as follows: First, a brief situational analysis of the general access to justice picture in Zambia is provided. Next, the chapter spotlights a field study conducted in Kawambwa District. The goal of this small study was to obtain a qualitative understanding of demand side justice needs in one under-served district in Zambia. While local justice needs and barriers vary, this study enhances the evidentiary base on justice concerns in remote areas, and findings can be loosely extrapolated to identify priority legal needs and probable justice barriers in underserved communities. Situational Analysis1 Defining and Measuring Access to The Legal framework Justice Access to justice is enshrined in Zambian law, Access to justice has two components: (1) equal but implementation gaps exist. The table that protection under the law for all; and (2) equal follows provides a summary and gap analysis of opportunity to seek and receive remedies for rights Zambia’s access to justice legal framework. violations before courts and ADR mechanisms (Reiling et al, 2007). Access to justice in Zambia has not been measured in an empirical way, but the favored approach is to obtain people-centered data which gathers citizen views and experiences of the justice system. While there have been 230 legal needs surveys conducted in 108 jurisdictions globally to obtain people-centered data, no legal needs study has been conducted in Zambia (World Justice Project, 2021). 1 This is addressed in greater detail in Chapter 3. 18 Assessment of Access to Justice and Alternative Dispute Resolution Systems Table 1: Legal framework for access to justice in Zambia2 Legislation Access to justice relevance Implementation gaps • Enshrines the right to a fair hearing for criminal offences within a reasonable time before an independent and impartial court (Art 18(1)). • Outlines preconditions to justice such as the presumption of innocence, and the provision of information about the alleged offence in Part III of the a language understood by the accused (Art Constitution of Legal aid cannot be 18(2)). Zambia demanded as a universal • Unless legal aid is granted, a person is right, even where a lack – Protection of permitted to defend himself before the court of representation might Fundamental Rights in person, or at his own expense, by a legal result in substantial and Freedoms of the representative of his own choice (Art 18(2) injustice to a defendant/ individual (criminal (d)). litigant. and civil matters) • Prescribes that courts and other authorities must be independent and impartial in the determination of civil rights or obligations, and each case should be given a fair hearing within a reasonable time (Art 18(9)). • Enshrines the right to be free from discrimination (Art 23). • Low number of LAB • Legal aid is provided by the Legal Aid Board lawyers and support (LAB) under this Act. staff across the country cannot keep • Functions of the LAB include administering pace with demand for an accessible legal aid system, providing legal aid. Legal Aid Act, 2021. civil and criminal legal aid and disseminating information. • There is a growing industry of “informal • The Act provides for the regulation of legal providers” of legal aid, practitioners, legal assistants, paralegals, and which are regulated. service providers that provide legal aid. • Traditional mechanisms are unregulated and their Part VII of the • Enshrines the promotion of ADR, including operations are not Constitution of traditional dispute resolution mechanisms well understood. Zambia– Judiciary (Art 118(2)). • Modern ADR frameworks require strengthening. 2 Sources: authors’ construction based on desk review, law and policy review, and KIIs Assessment of Access to Justice and Alternative Dispute Resolution Systems 19 Relevant policies and plans Zambia’s standing on access to justice indicators The 8th National Development Plan (8NDP) 2022– 2026 highlights some access to justice supply Despite marginal improvements, the general and demand side constraints, including a lack of trend shows ongoing challenges for access lawyers and courts to provide justice services, and to justice and the rule of law in Zambia. Key outlines planned activities to enhance access to issues of concern include corruption, restrictions justice through avenues such as decentralization on freedom of association and lack of government of the justice system (MoFNP, 2022). transparency. The table below summarizes Zambia’s standing on a number of recent The SP (2022-2026) was recently released by the indicators. MoJ. Chapter 5 discusses the relevance of the SP to this current Assessment and seeks to align the findings of this Assessment and the PEIR report to the Ministry’s strategic direction. Table 2: Zambia’s standing on access to justice indicators3 Zambia’s Source Indicators Change over time standing • Constraints on government powers • Absence of corruption Highest score was 0.48 in 0.45 (2022) 2016, and it has marginally • Open government improved from 0.44 in 2021. World Justice • Fundamental rights 14/34 in sub- Lowest factor scores relate Project Rule of Law • Order and security Saharan Africa to absence of corruption, Index open government, • Regulatory fundamental rights and 103/140 globally enforcement criminal justice. • Civil justice • Criminal justice Improved by 3 points from 2022 due to successful • Global freedom transfer of power through Freedom House • Civil liberties 54/100 (2023) elections leading to Freedom in the progress in corruption World Report • Political rights Partly free activities, greater • Internet freedom transparency, and fewer restrictions on freedom of assembly. • Security and rule of 50/100 (2022). -3.1 absolute trend since law 2012. The indicator of Higher than the ‘security and rule of law’ • Participation, rights, African average has trended -8.7 since Ibrahim Index of and inclusion (48.9), lower 2012. Bottom 10 indicators African Governance • Foundations for than the regional include freedom of economic opportunity average (54.2). association, anti-corruption mechanisms, and political • Human development 24/54 countries pluralism. Sources: World Justice Project, 2022; Freedom House, 2023; Mo Ibrahim Foundation, 2022; Afrobarometer, 2020. 3 20 Assessment of Access to Justice and Alternative Dispute Resolution Systems 64 percent of respondents Improved from 61 percent trusted courts in 2009. • Citizens’ levels of trust somewhat/a lot. Afrobarometer • Perceived corruption 29 percent of in courts and judicial respondents officials believed most/ Improved from 18 percent all judges and in 2009. magistrates are corrupt (2020). Access to justice in Zambia – key stakeholder consultations, and the PEIR findings. While the PEIR focused on supply side constraints, concerns its findings clearly indicate that a combination of supply side and demand side concerns impede A range of economic, cultural, and geographic access to justice. To enhance access to justice, barriers hinder meaningful access to the both supply and demand constraints must be justice system. The box below summarizes key addressed access concerns synthesized from the literature, . Box 1: Access to justice in Zambia – key concerns 1. There is inadequate justice infrastructure throughout the country. This includes a lack of court infrastructure (WB, 2022), leading to substantial court inefficiencies (Banda, 2019). This also extends to auxiliary justice infrastructure like police stations and health centers. 2. There is insufficient legal representation and legal aid, with vast swathes of the country unable to access any form of legal assistance; the dire ratio of one LAB lawyer to 530,000 people in 2018 (WB, 2022) is alarming. While the government has significantly increased budgetary allocations to LAB, challenges remain. 3. The justice system involves costs which most Zambians cannot afford. Court filing fees and the costs of private legal representation are prohibitive (WB, 2022). Even the LAB charges a minimum fee of ZMW1000 (although the fee can be waived for hardship). 4. Legal information is inaccessible and legal literacy is low, which impacts whether people are even aware that they can turn to the justice system to resolve disputes (WB, 2022; Masson et al 2016; MoJ, 2018). 5. Declining public trust due to corruption, delay, and inefficiency deters people from courts. (Transparency International, 2020; WB, 2022). 6. There is a lack of social/auxiliary support for clients outside the justice system, particularly for vulnerable groups such as women and children. (Undikumbukire Project Zambia, n.d). This directly impacts access to justice, as noted by one stakeholder: “You cannot address the legal issue without addressing the social issue”. 7. Vulnerable groups face additional access challenges. For example, sound legal representation is even more crucial for a child, but justice barriers are disproportionally harder to overcome for children and other vulnerable groups. (WB, 2022). 8. Alternative justice forums are largely unregulated, and not well understood; some are not well used. Traditional dispute resolution mechanisms are widely used in Zambia; however, they remain unregulated, unaccountable and there is very little published work on their operations (WB, 2022). Given their widespread presence in local communities, use of simple procedures, and general public awareness, these forums could enhance access to justice in a meaningful way. However, these key barriers must be addressed for that to occur. Stakeholders advised that modern ADR mechanisms such as mediation and arbitration work well when available, but they are not used as much as they could be. Assessment of Access to Justice and Alternative Dispute Resolution Systems 21 Challenges on the Demand Side: Kawambwa District Case Study Introduction Fieldwork was conducted in the Kawambwa While very little district level data is available District of Luapula Province to identify how users in Zambia, provincial data on Luapula provides experience the justice system, and what key a good working knowledge of probable socio- barriers they face when accessing justice. User demographic conditions in Kawambwa. In terms perspective was gleaned by soliciting views from of formal justice infrastructure, Kawambwa is individuals who provide services to, or regularly severely underserved. While it is a vast district— interface with citizens with justice-related 2 constituencies, 18 wards, and 3 chiefdoms— problems. A range of state and non-state actors just one police post serves the entire district. with a deep understanding of justice-related And, while Kawambwa District does have a issues in the community were also interviewed. Subordinate Court (many districts in Zambia Study participants provided valuable insight into do not), only one Magistrate services the court. demand side aspects of the justice system and key Further, Kawambwa’s Subordinate Court also justice constraints in the communities they serve. serves Mwansabombwe District which does not To retain the focus on underserved communities, have a Subordinate Court. To compound these respondents were regularly asked to reflect on the issues, the justice infrastructure is found only in impact of Kawambwa’s socio-demographic profile Kawambwa town.4 Kawambwa District also does on justice-seeking behavior. To draw out user not have a legal aid office or legal aid services. In perspectives, respondents were asked to recount fact, as far as could be ascertained, there is not a justice stories centered on citizen experience of single legal practitioner or law office in the district. legal problems and legal systems in the district. Types of Legal Systems in Factors Influencing Site Selection Kawambwa Provincial data from the Zambia Statistics Agency Kawambwa’s legal system is pluralistic: was analyzed to select a site that could serve both the formal legal system and traditional as a prototype of underserved communities mechanisms are fully operative in the district. in Zambia. Special emphasis was placed on poverty and literacy levels, availability of 1. The formal system comprises the Local justice infrastructure (including legal aid), Courts and one Subordinate Court. geographical remoteness and the position of women (as gleaned from patrilocality indexes, 2. Traditional mechanisms comprise “courts” birthrates, educational levels, infant-mortality overseen by Chiefs and their surrogates. rates and the nutritional status of infants.) There are three chiefdoms in Kawambwa—Chama, Mushota, and Mukanta. Each of these chiefdoms The economic, geographical and demographic have localized dispute resolution systems profile of Luapula Province made it a suitable under the overall authority of the Chief. choice. Luapula has the second highest levels of extreme poverty in the country, and some of the The resourcing and procedure of justice lowest educational levels (Zambia Statistics Agency, mechanisms in each chiefdom varies. Munkanta 2022). Geographically, it is one of the furthest chiefdom is the best resourced and most from the capital city and line of rail. Available data procedurally formalized of the three chiefdoms. on the position of women in the province suggests high vulnerability levels for women and girls. While formal court infrastructure exists, dispute Luapula has the highest patrilocality index and resolution in Kawambwa is largely informal, birthrates in the country. It also has the highest and most legal disputes are resolved using ADR rates of infant mortality, and the highest rates of mechanisms. nutritional deficiencies in children. 4 Residents not residing in Kawambwa town must scale long distances, in some cases over 100 kilometers, to access the formal justice system. 22 Assessment of Access to Justice and Alternative Dispute Resolution Systems Traditional mechanisms are the most visible form Respondents indicate that legal problems in of ADR in the district, but other ADR forms exist. Kawambwa are first reported to, or discovered by, Respondents identify the following actors as a diverse range of actors including: “actively involved” in providing ADR services: 1. Churches: particularly for matrimonial • Faith leaders: Churches are active dispute disputes and family related issues resolution sites in the district. Pastors/church 2. Health workers: frequently uncover GBV “elders” are highly influential and are often and sexual offences the first resort for matrimonial and family- related legal problems. Respondents report 3. The family system: nuclear and extended that some churches in the district actively 4. Non-governmental Organizations (NGOs) dissuade their members from using the legal and service providers system. • Political officers: the District Commissioner (DC), District Administrator (DA), and Town Council Secretary regularly mediate legal Key Findings disputes. A series of Key Assessment Areas (KAA) designed to interrogate key demand side justice- related Common Legal Problems and problems in Kawambwa District, were identified. The KAAs were informed by the PEIR, literature Reporting Pathways review and expert roundtables conducted in Lusaka. To gauge the nature of legal needs in the district, respondents were asked to identify the main legal A series of questions aimed to capture user problems and justice-related issues experienced experiences and/or perceptions in the KAAs was by Kawambwa residents. developed. The top five most frequently experienced legal Table 3 outlines the key findings on demand problems in Kawambwa are: side justice constraints in Kawambwa District. A “key finding” was made if there was 100 1. Criminal matters (including Gender-based percent unanimity (“All respondents agreed”) violence [GBV]), sexual offences and or near unanimity of at least 75 percent (“Most common assault) respondents agreed”). 2. Matrimonial/family matters 3. Witchcraft-related issues5 4. Debt disputes 5. Land disputes Respondents were also asked to identify how legal problems are first discovered/reported. They report that very few legal problems are reported to formal justice institutions like the police and courts. 5 Witchcraft is the most common legal dispute handled by traditional courts. Assessment of Access to Justice and Alternative Dispute Resolution Systems 23 Table 3: Key findings on demand side justice constraints in Kawambwa District Assessment Area Key Finding Respondent Perspectives People are generally unaware of their rights Legal literacy and are not sufficiently empowered to use Most respondents agreed. the legal system to enforce their rights. Most people lack access to basic legal Legal services information and are unable to make Most respondents agreed. (including legal aid) informed decisions about their justice-related problems. Legal advice and/or representation is not available; there are no legal practitioners or All respondents agreed. law firms serving the district. Prevalence of use: Formal courts Legal assistance/aid programs are not available; criminal defendants are All respondents agreed. unrepresented. Prevalence of use: The vast majority of legal problems are All respondents agreed. Formal courts resolved outside the formal legal system. Service delivery in the formal courts is not Most respondents agreed. user friendly and is context insensitive: use Perception of formal of English in the Subordinate Court, complex courts procedures, court filing fees and the lack of legal aid ignore the socio-demographic realities of the district. Traditional mechanisms have a significantly All respondents agreed. higher case volume than formal courts. Prevalence of use: Legal systems (formal and traditional) are ADR not the only dispute resolution sites in the district; other actors (e.g., political officers, faith leaders) regularly provide dispute All respondents agreed. resolution services. In general, traditional courts are preferred to Perception of formal courts due to their accessibility and Most respondents agreed. traditional courts user-friendliness. They are also perceived as “less corrupt” than formal courts. Discretionary fee structures, lack of appeal Consequences processes, lack of accountability mechanisms, of unregulated and asymmetrical relationships between Most respondents agreed. traditional traditional leaders and subjects can pose mechanisms access to justice risks for users. Formal and informal systems are poorly integrated; jurisdictional boundaries between Conflict of law Most respondents agreed. the systems are unclear; intersystem competition thrives. 24 Assessment of Access to Justice and Alternative Dispute Resolution Systems Supply side justice infrastructure is not proximate to demand side need; rural Most respondents agreed. dwellers have limited-to-no access to formal Adequacy and courts. proximity of justice infrastructure A short-staffed and under-resourced All respondents agreed. police service leaves vast swathes of rural communities unpoliced. Direct and indirect economic costs of seeking justice (court fees, transport to court) Impact of poverty discourage use of the formal court system. Extreme poverty has created a “justice black market” where victims of crime regularly bypass the formal court system to negotiate monetary settlements with perpetrators. Entrenched cultural beliefs in the district Impact of culture All respondents agreed discourage use of the formal legal system. Women face disparate access to justice burdens due to economic dependence on All respondents agreed. men and entrenched patriarchal views. Impact of gender Women in asymmetrical, intimate relationships are not likely to seek redress Most respondents agreed. for legal issues orchestrated by their intimate partners. (Probable) Key Justice Barriers in Probable barriers to access to justice in underserved areas (as informed by study findings Underserved Areas triangulated with insights gleaned from the other methodologies used in this Assessment) include: The Kawambwa findings provide useful insight into demand side barriers and typologies of 1. Legal illiteracy justice deficits in underserved communities. Strident barriers in accessing human development 2. Limited-to-no legal service delivery and legal services (e.g., health, education, electricity, and aid legal services) are a hallmark of these communities. 3. Entrenched cultural beliefs In some cases, these services are not available at all. Even when they are available, they are scarce, 4. Extreme poverty and an interplay of geographical, demographic, 5. Unregulated traditional mechanisms and socio-economic challenges that limit their accessibility. 6. Context insensitive courts 7. Gender inequality • Limited justice infrastructure (including lawyers and legal aid) largely mirrors limited 8. Geographical barriers to justice infrastructure human development service infrastructure; and low levels of legal literacy mirror general literacy levels, which are themselves closely Conclusion tied to poverty and its antecedents. This chapter examined demand side access to Through the lens of this study, policy makers can justice constraints in underserved communities. better imagine how communities living in extreme This was done by spotlighting the findings of a poverty, with limited human development field study conducted in Kawambwa District and services, limited justice infrastructure, and limited using these findings to extrapolate probable legal literacy experience the disparate impacts of demand side access to barriers of underserved access to justice constraints. communities in wider Zambia. Assessment of Access to Justice and Alternative Dispute Resolution Systems 25 26 Assessment of Access to Justice and Alternative Dispute Resolution Systems Assessment of Access to Justice and Alternative Dispute Resolution Systems 27 3. Alternative Dispute Resolution in Zambia Introduction This chapter examines the role that ADR mechanisms, both modern and traditional, can play in Zambia’s justice agenda. It does so by examining whether ADR mechanisms can counteract the barriers of the formal court system and in so doing, enhance access to justice in Zambia. This Assessment is particularly relevant in the light of recent attempts to mobilize ADR for increased justice outcomes for Zambians.6 These attempts reflect the growing understanding among key stakeholders that while improvements to the formal system are necessary, it is also important that alternative forms of justice are sought and realized. The chapter is arranged so that it first provides a situational analysis of ADR in Zambia. The key impediments that undermine ADR’s uptake and effectiveness are then outlined. Conceptualizing ADR in Pluralistic Zambia ADR in Zambia is not a new idea. Traditional mechanisms of resolving disputes were in existence long before the colonial era. Zambia’s legal system is therefore pluralistic, comprising the formal law (which includes an adaptation of British Common law, the Constitution, and legislation) and African Customary Law.7 6 The Law Association of Zambia (LAZ) has embarked on the ambitious goal of establishing an international arbitration centre in Lusaka to service the region (see Box 2), while the Chief Justice has pledged “a judiciary that values and promotes Arbitration and [ADR]” (Judiciary of Zambia, 2022). 7 Within the framework of the formal law and its court hierarchy, are “Local Courts” that apply African Customary Law. These courts must be distinguished from traditional mechanisms of dispute resolution because while they apply customary law, they are highly regulated by statute and therefore form part of the formal court system of Zambia. They are not to be confused with traditional mechanisms of dispute resolution that are largely unregulated and exist outside the formal court system in villages and rural settlements. 28 Assessment of Access to Justice and Alternative Dispute Resolution Systems Unlike traditional mechanisms of justice which Given these variations, ADR processes in Zambia have a long history, the contemporary/western can perhaps best be described as a form of understanding of modern ADR and its iterations “Processual Pluralism” (Faris, 1995), where each (e.g., arbitration and mediation) is relatively new class of ADR (modern and traditional) resolve and was integrated into the Zambian legal system disputes outside the formal court system, and in the 1990s.8 yet, each process is autonomous and grounded in its own unique history, philosophy, agenda, and influences. Situational Analysis This section analyzes the ADR landscape in Zambia through the lens of thematic questions designed to extract the implementation gaps synthesized in the “Key Impediments” section of this chapter. 1. What is the legal basis for ADR in Zambia? The national Constitution provides the legal Article 118 provides a strong legal basis for ADR in basis for ADR. Article 118 (2)(d) provides in part, Zambia and mandates formal courts to engage in that: the use and promotion of ADR. While the formal court system is still the primary dispenser of …(d) alternative forms of dispute resolution, justice (Art. 119 [1]), constitutional recognition including traditional dispute resolution of ADR processes makes the pursuit of access to mechanisms, shall be promoted [by the courts]. justice in Zambia a shared responsibility between the formal courts and ADR mechanisms. 2. What are the main forms of ADR in use in Zambia and what regulatory framework governs them? Two distinct classes of ADR operate in Zambia: modern and traditional. The main forms of modern ADR in Zambia are While some aspects of ADR are highly regulated, mediation8, arbitration, and criminal diversion.9 key implementation gaps exist. The regulatory The main forms of traditional mechanisms frameworks (for the main forms of ADR) in either are loosely, adjudicatory dispute resolution system are outlined in the two tables below. A techniques (determinative processes that are summary of the implementation gaps and the binding on the parties) and non-adjudicatory hazards of those gaps are also highlighted.­­­ dispute resolution techniques (facilitative processes that encourage disputants to reach a negotiated settlement). 8 Mediation is a broad umbrella term that includes Court Annexed Mediation, private mediation, employment mediation, Civil Mediation Council mediation, as well as the mediation envisioned in criminal diversion. 9 A complete list of other, minor, forms of modern ADR in Zambia can be sourced in Annex A. Assessment of Access to Justice and Alternative Dispute Resolution Systems 29 Table 4: Main forms of ADR: Modern System ADR Form Description Legislation Implementation Gaps & Hazards • Statutory High Court judges Instrument No. 71 and Subordinate of 1997, the High • No supervisory mechanisms Court Court (Amendment) for mediators or mediation Rules settlements. Hazard: Findings Court- Magistrates are indicate widespread mediator • The Subordinate truancy; unjust/ambiguous annexed empowered to Court (Amendment) mediation settlements are also mediation refer matters to Rules, 2018 common. (CAM) CAM before trial commences. A • Arbitration • Severe under-resourcing of trial date is set and Mediation the CAM program discourages only if mediation Procedure Rules, utilization.10 fails. 2002 (Industrial Court) • Hazard: Low utilization of CAM offsets potential benefits.11 • Weak institutional arrangements: i.e., no convening body with the mandate, funding, and personnel to prioritize and promote CAM, or to establish and enforce quality control mechanisms. Hazard: CAM remains disorganized and underpromoted, undermining its potential as an alternative to the formal court system. • Incomplete/contradictory official data on case volumes, outcomes, and durations of CAM. Hazard: Utilization ratios and productivity rates cannot be ascertained; scientific assessments of the uptake of CAM are hindered, which in turn hinders evidence-based policy making and programing. • Lack of supporting infrastructure renders Subordinate Court CAM wholly inoperative. Hazard: Access to justice barriers are disparately felt in lower courts, and absence of ADR mechanisms in these forums means that the justice- enhancing potentialities of these mechanisms cannot be realized. 10 Notwithstanding the 20-year plus existence of the program, low utilization was widely reported by respondents (the lack of official data on case volumes makes scientific utilization ratios impossible to calculate). 11 Notwithstanding the 20-year plus existence of the program, low utilization was widely reported by respondents (the lack of official data on case volumes makes scientific utilization ratios impossible to calculate). 30 Assessment of Access to Justice and Alternative Dispute Resolution Systems There has been no review of the mediation rules since their promulgation in 1997. Hazard: CAM is a dynamic field, which calls for periodic review of national mediation frameworks to keep pace with evolving standards and best-practices. Mediation Settlements procured by private between parties mediation are unenforceable. by way of private Hazard: Private mediation No legal framework agreement (no remedies are ineffective, involvement of the undercutting its usefulness as a formal courts). viable ADR process. Labor office • Employment Code officials are Act No. 3 of 2019 No reliable data on the uptake obligated • Section 121 obligates an of employment mediation exists. Employment to resolve authorized officer to Hazard: Data vacuums hinder mediation employment procure settlement scientific assessments of key matters outside of a dispute before performance indicators. the formal legal it can be referred to system. court. • Children’s Code Act Weak-to-nonexistent institutional No 12 of 2022 arrangements and operational A measure of first frameworks for diversion12 resort to divert • Under section 58, (diversion currently occurs on an ad Criminal children in contact diversion options hoc basis).13 diversion with the law away include mediation, from the criminal family group Hazard: Punitive relief for children justice system. conferencing, and in contact with the law is yet to be restitution. realized. A private, • Poor-to-non-existent neutral, third- supervisory mechanisms for arbitrators.14 party renders Arbitration Act No. 19 a judgment or of 2000. • Hazard: User vulnerability award after to exploitative and truant hearing evidence The Act is largely arbitrators. and argument, like modeled after the • Order XIX Rule 3(2)(g) of the a judge. United Nations High Court (Amendment) Arbitration Commission on Rules provides that a judge Largely International Trade may make a referral order contractual. Law (UNCITRAL) Model to arbitration (under the Parties contract to Law on International Arbitration Act). However, a arbitrate through Commercial Arbitration record for arbitration referrals does not seem to exist. Hazard: the incorporation with modifications. Impossible to assess frequency of an arbitration of referrals and court promotion clause. of ADR. 12 This is likely due to the recency of the Children’s Act. 13 Respondents report some ad hoc diversion at police stations. 14 Regulation 24 (1) of the Arbitration (Code of Conduct and Standards) Regulations, 2007 provides that any person who has reasonable ground to believe that an arbitrator has violated the Code must lodge a written complaint to Zambia Association of Arbitrators (ZAA), which will then determine the complaint in accordance with its rules. However, ZAA, which was the only disciplinary body recognized at law to discipline errant arbitrators, is now defunct. While members of the Chartered Institute of Arbitrators (CIArb) Zambia are supervised by CIArb, Regulation 3 of the 2007 Regulations provide that every arbitrator conducting arbitral proceedings in Zambia shall be bound by its Code of Conduct. However, because the enforcing body is defunct, this code cannot legitimately be enforced by any other arbitral institution including CIArb. The mischief created by this gap is that no enforceable code of conduct for arbitrators exists. Even if CIArb Zambia could hypothetically enforce the code, it means that other arbitrators who are not members of CIArb remain unsupervised. Assessment of Access to Justice and Alternative Dispute Resolution Systems 31 Rule 3 of the Industrial and Labour Relations (Arbitration and Mediation Procedure) Rules, 2002 states that parties may apply to the Court for a reference to arbitration, but it is unclear if this piece of legislation was relegated to a different legal order due to the elevation of the Industrial and Labour Relations Court to a division of the High Court. Hazard: Lack of clarity in the law leads to procedural confusion which in turn promotes inefficiency and system instability. No available data on case volumes, outcomes, and durations of arbitration in Zambia. Hazard: Prevalence of use cannot be assessed, hindering impact assessments of this popular ADR mechanism. Table 5: Main forms of ADR: Traditional System Implementation Gaps & Access ADR Form Description Legislation to Justice Hazard. Traditional leaders hear and resolve disputes in local communities. They can act as mediators (i.e., facilitating • Proceedings and settlements consensus among are unregulated and disputing parties) unsupervised. Hazard: or arbitrators Potential constitutional, due Traditional (determining process, and human rights arbitration matters violations in these processes (adjudicatory) conclusively). remain undetected. No Legal Framework and mediation • Limited reach of the (non- Traditional formal court system makes adjudicatory). mechanisms traditional mechanisms are overseen the sole forum of dispute by traditional resolution for many. authorities Hazard: “Choice of forum” is (including unattainable for most users. paramount chiefs, senior chiefs, sub-chiefs, and village Headmen in individual villages). 32 Assessment of Access to Justice and Alternative Dispute Resolution Systems 3. What is the state of ADR infrastructure in the country? While Zambia’s ADR Infrastructure is expanding, it is inadequate and unsustainably financed. “Infrastructure” in this Assessment refers to the institutions, infrastructure, practitioners, and initiatives that support ADR. A compilation of ADR infrastructure is provided in Annexes B and C. Outlined below are the key infrastructure gaps of the main forms of ADR. Table 6: ADR Infrastructure Gaps ADR Form Infrastructure Gap Inadequate facilities and resource persons for CAM: • No designated meeting/conferencing space for CAM (the mediation office allocates space on an ad hoc basis, sometimes using courtrooms which are inimical to the informal atmosphere that is a hallmark of Court-annexed mediation). mediation • Lean staffing of the mediation office undermines its efficiency and effectiveness (there are just four officers in Lusaka and one officer in Kitwe, Ndola, and Livingstone respectively). • Lack of full-time mediators means that part-time mediators prioritize non-mediation activities which leads to inefficiency and client dissatisfaction. Private mediation is unregulated and unorganized, and any infrastructure Private mediation (e.g., premises) is funded on an ad hoc basis by individual practitioners. Despite the statutory mandate for labor offices to offer mediation services; Employment mediation • There is no structured mediation training program for labor office personnel. • Labor offices do not have designated meditation facilities or mediation personnel. Implementation modalities and supportive infrastructure are yet to be in place; implementing personnel (e.g., social welfare officers and Criminal diversion adjudicators require onboarding and ongoing training in diversion practice). Arbitration in Zambia is largely ad hoc (arbitral infrastructure is provided and funded by individual arbitrators), as a national administrative body to administer arbitration in Zambia does not exist. Once operational, Arbitration the Lusaka International Arbitration Centre (LIAC) seeks to play this convening role. Past existing administrative bodies are now defunct due to unsustainable funding models.15 • While the CIArb Zambia branch provides some supportive infrastructure to its members (e.g., training, professional development/networking opportunities, client referrals etc.), CIArb is not a national convening institution for arbitration. There is no convening institution/administrative body to oversee and manage traditional ADR. Implications include: • Traditional adjudicators are not regulated and/or vetted. Traditional • Traditional settlements are not supervised. mechanisms No country-wide audit of infrastructure has been conducted. Respondents report a wide variation in the availability and suitability of meeting infrastructure. Some better-resourced chiefdoms have designated “brick and mortar” court-like structures, while poorly resourced locales do not. Information sourced from: Lusaka International Arbitration Centre. (2024); Lusaka International Arbitration Centre Model Arbitra 15 Assessment of Access to Justice and Alternative Dispute Resolution Systems 33 Box 2: Spotlight on a key ADR Initiative: The Lusaka International Arbitration Centre16 In 2023, LAZ and CIArb Zambia signed a Memorandum of Understanding (MOU) to establish LIAC in response to the business community’s quest for a reputable forum for speedy disposal of commercial disputes. It intends to be a national administration for arbitration and other forms of ADR such as mediation. LIAC has been incorporated as a not-for-profit Company Limited by Guarantee. It is guaranteed by private bodies including LAZ, CIArb Zambia Chapter, Zambia Chamber of Commerce and Industry (ZACCI), Zambia Chamber of Mines (ZCM), Bankers Association of Zambia (BAZ), Engineering Institution of Zambia (EIZ), Association of Consulting Engineers of Zambia (ACEZ), and Zambia Institute of Chartered Accountants (ZICA). LIAC will be managed by a Secretariat under the oversight of a Board of Directors drawn from the representative institutions. Sources of operational funds will include administration fees for arbitrations and mediations, conference facility fees, fees for admission to the LIAC Panel of Arbitrators, and donations. 16 Information sourced from: Lusaka International Arbitration Centre. (2024); Lusaka International Arbitration Centre Model Arbitration Clause and Draft Arbitration Rules: Law Association of Zambia. (2023); Unpublished brief on the Establishment of the Lusaka International Arbitration Centre. 4. Is there an enabling framework for ADR? That is, are users/potential users adequately incentivized to use ADR? Are ADR remedies effective? Overall, there are weak legal frameworks, system inefficiencies, and unenforceable remedies. Respondents highlight the following key disincentives: • The low fees paid to mediators in the • Rather than bear the risks of (i) CAM program dis-incentivizes skilled poorly regulated ADR processes and mediators from participating in CAM, and practitioners, and (ii) unenforceable ADR this has led to a widespread perception (in settlements, many would-be users of ADR the business community and legal fraternity) choose to bear the costs and inefficiencies of that the quality of mediators on the CAM is the formal court system. low. • The “lawyerization” of arbitration ◊ When compared with other African creates inefficiencies that undermine the jurisdictions where CAM has experienced efficiency argument for ADR.17 While court greater success (like Kenya and Rwanda), interference in arbitration has significantly the fees paid to Zambian mediators are reduced over the past decade, respondents far from competitive. A CAM mediator in note that some lawyers involved in arbitration Kenya for example receives approximately cases still weaponize court processes to US$190 per mediation, while a Zambian delay proceedings for tactical advantage. mediator receives approximately US$31 per mediation. 18 17 For a more detailed discussion on this see “Key Impediments” below. 18 At one of the earliest meetings between the Judiciary and mediators in June 2000, a suggestion for the payment of US$100 per mediation was made. Twenty-three years on, court-annexed mediators are still paid far less than that. As one stakeholder observed, while Zambia does have several highly regarded mediators, it is almost impossible to secure their services. An IMF report on Governance in Zambia explains: “The mission was informed that use of court attached mediation proves to be ineffective in practice. One of the reasons for inefficiency is low remuneration (ZMK 750 per day for mediators, which excludes professional and dedicated mediators from the pool” (IMF, 2023). 34 Assessment of Access to Justice and Alternative Dispute Resolution Systems 5. What is the target demographic for each of the main forms of ADR in Zambia? Target demographics for the main forms demographics, and the prevalence of use within of ADR processes in Zambia vary greatly. each target group. Target users can range from large multi-national companies to rural dwellers in far-flung locales. So In the table below, the target demographic, too, the quantum in ADR disputes can range from prevalence of use (in the group), and examples the hundreds of millions to the monetary value of of legal problems amenable to resolution are a single farming implement. summarized. The unavailability and/or unreliability of official data on the prevalence of ADR processes Given these variances, effective policy making is a key gap for evidence-based policy. demands that attention be paid to target Table 7: Target Demographic for ADR Examples of Legal Prevalence of Use Among ADR Form Target Demographic Problems Amenable to Target Demographic ADR Form Any person (human or juristic), that has a matter amendable to mediation is a potential CAM • Foreclosure user. Most matters Uncertain (statistics from proceedings are amenable the mediation office are • Landlord/tenant Court-annexed to mediation. unreliable and contradictory). disputes mediation Constitutional Respondents note low issues, the liberty of utilization. • Tortious matters an individual, and • Matrimonial matters matters that involve an injunction are notable statutory exceptions.19 Most matters can be Private resolved by private No official data. As above mediation mediation. No official data, but • Non-payment of dues Employment Employee in dispute respondents suggest • Unfair dismissal mediation with employer. widespread use of mediation by labor officers. • Workplace injuries No official data, but Misdemeanors frequently prevalence is likely low-to- committed by juveniles Criminal nonexistent. Juveniles (e.g., possession of illegal diversion substances, assault, This is a new form of ADR shoplifting). and has yet to take root. 19 Order 31 Rule 4 (1) of the High Court Rules. Assessment of Access to Justice and Alternative Dispute Resolution Systems 35 Parties that have contracted Standard arbitration to arbitrate, No available data, but clauses cover all legal typically, LUSE- consultations with LIAC and Arbitration problems that arise listed companies, industry suggest widespread during the lifespan of the multinationals, use in the business sector. relevant contact. investor-state agreements. Rural dwellers • Customary land (i.e., majority of disputes Traditional Zambians) but also • Damage to property mechanisms hybrid users (e.g., Widespread. For most (adjudicatory many urban dwellers Zambians, these mechanisms • Matrimonial disputes and non- conclude traditional are the sole justice forum. • Defamatory matters adjudicatory) marriages); Investors acquiring customary • Witchcraft-related land matters 36 Assessment of Access to Justice and Alternative Dispute Resolution Systems 6. Can a business case be made for ADR in Zambia? • Findings indicate a strong appetite for ◊ The construction and engineering ADR in the business community. industries have already entrenched ADR as an avenue of choice, and formal courts • Surveyed industry bodies (including ZACCI, are generally bypassed. This is largely EIZ, ACEZ, ZCM, and BAZ) all understand the due to contract clauses which mandate potential for ADR to speed up commercial adjudication or arbitration for dispute disputes and are eager to find alternative resolution. ways to resolve disputes efficiency and cost effectively. • The newly formed LIAC (see Box 2) specifically targets the business community. ◊ Industry bodies report that a significant Recognizing their increasing dissatisfaction portion of annual budgets are spent with the formal court system, LIAC seeks to on legal fees; these high costs are improve the business and trade environment compounded by inefficiencies and delays in Zambia. in the court system. ◊ Industry bodies have responded in kind • Various categories of disputes in multiple by signing up as guarantors for LIAC. industries can be resolved using ADR processes. Respondents identified the • Respondents observe an increased business following industries as ripe for ADR: banking, interest in ADR options evidenced by: insurance, employment, and council-related ◊ Rising demand for arbitrator training land disputes. ◊ Inclusion of ADR practices in law firms 7. Is there an access to justice case for ADR in Zambia? Respondents strongly suggest that there is, and • Affordability: Some ADR mechanisms like there have been intermittent attempts within the court-annexed mediation are comparatively Judiciary to entrench ADR mechanisms among the cheaper than the formal court system and legal fraternity and potential users. can offer affordable solutions to justice seekers. Respondents note the following, justice enhancing, comparative advantages of ADR: In summary: ADR has several, in-built, comparative • Accessibility: Mediation in particular advantages that if exploited, and leveraged, make “reverberates with traditional ways of it a viable and justice-enhancing alternative to resolving disputes” in Zambia, is familiar to overburdened and (largely) inaccessible formal most Zambians and offers opportunities for court systems. interparty satisfaction, which has benefits for social reconstruction and maintaining These comparative advantages surmount the community cohesion (Limondin & Dinda, supply side binding constraints to service delivery 2023). in the formal court system identified in the PEIR (i.e., chronic underfunding, declining public • Flexibility: The procedural informality of trust, overall inaccessibility, inefficiency and ADR processes makes them more adaptable ineffectiveness, and limited “continuing legal to specific needs and can adapt to address education” (CLE) to adjudicators who require CLE non-legal issues. to effectively administer a complex and evolving • Efficiency: When effectively operationalized, legal system.) ADR mechanisms can decongest formal courts by siphoning disputes away from the overburdened and backlogged formal court system. As the current Chief Justice notes, expanding court-annexed mediation has “significant potential not only to relieve the ‘mainstream’ court system, but to deepen the substance of justice provision within the Judiciary” (Malila, 2022). Assessment of Access to Justice and Alternative Dispute Resolution Systems 37 8. What is the intersectionality between the formal court system and the ADR framework? The formal court system and the ADR framework intersect at several levels. The points of intersectionality for each form of ADR are outlined below. Table 8: Intersection of Formal Court System with Modern ADR ADR Form Point of Intersection The formal court system initiates all CAM proceedings (i.e., a High Court judge Court-annexed or a Subordinate Court Magistrate initiates mediation by referring a matter to mediation the CAM process.) If mediation fails, the matter is sent back to the formal court system for resolution. Private mediation No intersection Employment An employment dispute not satisfactorily resolved through mediation at the mediation labor office can be referred to the formal court system for resolution. Diversion (usually) applies to children that are already in contact with the Criminal diversion formal court system. Arbitrating parties can have recourse to the formal court system in disputes involving: • The validity of an arbitration clause Arbitration • The appointment of arbitrators • The arbitrability of a matter • The validity of an arbitral award While there is no official interaction between the traditional and formal courts, findings indicate informal intersection at the following points: • Parties aggrieved with decisions of traditional courts do sometimes commence devo proceedings on the same matter in the formal court Traditional system (most typically a local court). mechanisms • Many traditional courts frequently refer divorcing couples to the Local Court. • In chiefdoms where sensitization around GBV-related offences has been successful, there is a frequent referral of GBV victims to one-stop centers (which assist in the filing of proceedings in the formal court system). 38 Assessment of Access to Justice and Alternative Dispute Resolution Systems 9. How accessible are modern ADR mechanisms to the wider public? Findings indicate that ADR mechanisms are The factors that impact the accessibility of modern largely inaccessible to the greater public due to ADR mechanisms as shared by respondents are cost, inadequate frameworks, and inadequate highlighted in the table below. spread and reach. Table 9: Factors Impacting Accessibility of ADR Mechanisms Factor Description CAM can only be accessed through the formal court system. The lack of direct Inadequate Legal access to mediation inhibits access for litigants who are unable/unwilling to Frameworks commence formal actions. Arbitration: High upfront costs of arbitration (arbitrator fees, administrative fees) are prohibitive. For ordinary litigants, arbitration is not a viable alternative to the formal court system. Cost Meditation: The relatively low user fees of the CAM program are offset by the lack of direct access to mediation (i.e., parties who are eventually referred to mediation have already incurred costs in the formal system, limiting the cost save). • Limited geographic reach of ADR practitioners limits ADR use; qualified arbitrators and mediators are predominantly located in Lusaka and the Inadequate reach Copperbelt. and spread • Limited geographic reach of ADR infrastructure: At present, CAM is only available in the High Court,20 and geographically, it is only available at the four principal registries (Lusaka, Livingstone, Ndola, and Kitwe). 10. What are the awareness levels of these mechanisms? When asked about awareness levels of modern ADR mechanisms, respondents reported high awareness levels in the private sector, but low awareness levels among ordinary litigants. The factors contributing to low awareness levels for ordinary litigants are summarized in the table below. Table 10: Reasons for low awareness of ADR Factor Description When interfacing with litigants, courts do not actively engage in Lack of court outreach ADR outreach or sensitization. The Judiciary does not have an outreach/ awareness raising policy on ADR. Low utilization of ADR processes and the limited geographical reach Low visibility of ADR of ADR infrastructure mean that ADR is not visible to everyday litigants. Lack of community There are limited-to-no sensitization or awareness- building initiatives sensitization around modern ADR techniques. Mediation is not yet operable in the Subordinate Court. 20 Assessment of Access to Justice and Alternative Dispute Resolution Systems 39 11. How are traditional mechanisms of dispute resolution perceived by the general public? • Surveyed customary law experts classify the ◊ These findings resonate with Afrobarometer relationship between traditional leaders and 2021 findings (Logan & Katenda, 2021) their subjects as an asymmetrical one. on perceptions of traditional authority in Africa. That study found that “Chiefs get ◊ The supremacy of chiefs and their consistently higher citizen ratings for surrogates has intrinsic normative force. trust and performance, and are seen as ◊ This in-built perception of traditional markedly less corrupt, when compared leadership as “authoritative” facilitates to elected leaders and government compliance with decisions. officials.” These greater levels of trust are not limited to rural communities, as • Findings also indicate that traditional leaders “Chiefs find support not only among elderly in Zambia generally enjoy a higher degree rural men, but also among women, urban of trust than political leaders or judicial residents, youth, and the most educated.” authorities in the formal system. 12. What measures are in place to ensure that traditional forms of dispute resolution do not impinge the Constitution?21 The constitutional recognition of traditional • Findings indicate that there are no pre- mechanisms is not unfettered. Article 118(2)(d) emptive measures in place to ensure forbids traditional adjudication that contravenes that traditional mechanisms do not fall the Bill of Rights, is inconsistent with other foul of the constitutional requirement. provisions of this Constitution or other written Further, there is no evidence of strategic law; or is “repugnant to justice and morality”. thinking and/or policy formulation directed at safeguarding the constitutional and due process rights of subjects of customary law. 13. How do traditional dispute resolution mechanisms operate at a local level? How effective are they? What are the potentialities? Zambia comprises 72 ethnic groups spread ◊ This disparity was observed in Kawambwa. across 10 provinces, and the configuration and The best-resourced chiefdom (Mukanta) operative processes of traditional dispute had a well-constructed court room adjacent resolution forums varies from place to place. to the court palace, while the poorest However, respondents report key commonalities district (Chama) did not have any court infrastructure. as follows: • There is an increasing awareness of • Individual chiefdoms develop localized fundamental rights in traditional dispute resolution systems that operate adjudicative structures in Zambia, under the overall authority of the Chief, and many mechanisms adapt their justice systems to reflect contemporary who delegates his authority to sub-chiefs, thinking on issues like gender equality Headmen, and “chairmen” in individual and children’s rights. Some chiefs have villages. championed the fight against child marriage for example, and many chiefdoms in Zambia ◊ Chiefs enjoy unstructured appellate require gender balancing when constituting authority and have the power to overturn traditional courts. Female adjudicators are decisions of their surrogates. not unusual. ◊ In Kawambwa, the Mukanta chiefdom court ◊ “Hard/consequential” cases, or cases of is presided over by three traditional judges significant monetary value, are reserved (“indunas”)—one female and two males. for Chiefs. • Fee structures of traditional mechanisms • The resourcing of chiefdoms dictates vary. Findings indicate that traditional “court” infrastructure. In better-resourced mechanisms are not “free”. Disputants are chiefdoms, “brick and mortar” court generally “charged” to have their cases structures exist, adjudicators sit as “panels”, heard. Fees are generally not monetary, and and court administrators manage day-to-day payment is usually in kind, involving food operations. Poorer chiefdoms operate from staples (e.g., mealie meal, cooking oil) or ad hoc/makeshift venues within the district. chickens and livestock. 21 “Traditional dispute resolution mechanisms shall not— (a) contravene the Bill of Rights; (b) be inconsistent with other provisions of this Constitution or other written law; or (c) be repugnant to justice and morality.” 40 Assessment of Access to Justice and Alternative Dispute Resolution Systems ◊ In Kawambwa, while surveyed traditional • The absence of accountability structures leaders insisted that the charges are only and performance evaluations of these nominal, there were reports of exorbitant mechanisms is a key gap. fee structures for some hearings. When it comes to the potentialities of these • Users of traditional mechanisms in areas systems, the in-built comparative advantages that are proximate to the formal court of traditional mechanisms (accessibility, system enjoy hybridized justice structures, flexibility, contextual awareness) and their and it is not unusual for disputants to embeddedness within their communities contemporaneously lodge matters in a surmount many of the barriers of the formal traditional court and in a formal court. court system and make it a meaningful This hybridization is an important “check” “alternative” to overburdened courts. on traditional authority and in many cases, formal courts enjoy defacto appellate The strategic, policy, and programmatic challenge authority over traditional courts. In more is to leverage these comparative advantages while remote areas, this “choice of law” option is ensuring that the constitutional safeguards of not available. Article 118 are met. ◊ Hybridized justice structures were evident in the Mukanta chiefdom of Kawambwa. Key Impediments Disputants aggrieved with decisions made at the traditional level sometimes file the This section provides a synthesized statement of same matter in the Local Court. the key impediments to ADR in Zambia. The key question here is, as it currently works, does ADR In terms of effectiveness and potentialities, present a workable/viable solution to improving from an access standpoint, traditional structures access to justice, and does it provide an efficient are highly effective; their ubiquitous reach and and effective mechanism for resolving disputes? spread provides ready access to most users. Impediments in the modern and traditional The question of whether these forums deliver system are dealt with in turn. substantive justice that honors fundamental rights is more complex. Assessment of Access to Justice and Alternative Dispute Resolution Systems 41 Key Impediments: Modern ADR Zambia must position itself to leverage the • The exclusion of ADR from strategic economic benefits of modern ADR processes. agendas has also resulted in weak While key legislative milestones to embed institutional grounding and insufficient modern ADR have been achieved, some gaps supporting instruction for ADR. There is no remain. The section below highlights some of convening body with the mandate, funding, the key gaps, which if addressed, can capitalize and personnel to supervise and regulate any on legislative gains and enhance the uptake of ADR form. modern ADR in Zambia. ◊ In comparison, in Kenya, the Mediation Accreditation Committee (MAC) is 1. Exclusion of ADR from the national and established by statute and accredits strategic justice agenda, and lack of mediators through accredited training and senior political endorsement of the ADR approved standards. The MAC, appointed agenda. by the Chief Justice, comprises a broad range Despite the potential of ADR to improve the of stakeholders including representatives national economic and justice environment, of the Law Society of Kenya, CIArb, the it has never been prioritized at a national or Kenya Private Sector Alliance, the Kenyan strategic level. Bankers Association and the Central Organization of Trade Unions. The MAC has • ADR is not a strategic priority under the accredited over 700 mediators as of July Government of Zambia’s development 2020 (Weinstein International Foundation, agenda (as outlined in the 8NDP) or the n.d.). Similarly, the Nairobi Centre for MoJ’s current Strategic Plan. Since MoJ International Arbitration Centre (NCIA) is programming and workplans are dictated by established by statute and receives much the SP, the mainstreaming and resourcing of its funding from recurrent government of ADR will not be prioritized without grants (NCIA, 2017). This shows strong strategic focus. institutional grounding for ADR, driven by a government agenda that offers legal and ◊ As a comparator, the focus on ADR in financial support to ADR efforts. Kenya has been acknowledged through several policy documents, such as the • Senior political endorsement must Judiciary’s Alternative Justice Systems drive the ADR agenda. The need for this Framework Policy and the National ADR high-level support was recognized when Policy approved by the Government of CAM was first introduced in Zambia over Kenya in 2023 (Kenyan Executive Office of 20 years ago. A United States Agency for the President, 2023). The promotion of ADR International Development (USAID) report mechanisms, with attached indicators and on the implementation of the CAM program targets, is a specific strategy of the Office made the following observation: “It is of the Attorney General and Department imperative that a respected, influential, and of Justice in its Strategic Plan 2018/19– savvy political “cheerleader” be delegated 2022/23 (Kenyan Office of the Attorney as the person solely responsible for the General and Department of Justice, program’s success (Chemonics International, 2020). This recognizes that ADR requires 2000).” In Zambia, there has not yet been any executive support across the breadth of endorsement or championing of the ADR ADR mechanisms to improve access to cause at the political/national level. justice. ◊ Comparator jurisdictions have identified ◊ In Rwanda, the Ministry of Justice launched key persons to serve as champions for an ADR Policy in 2022 as a roadmap for mediation. In Rwanda, the Chief Justice, the expansion of ADR in the country top Chief Executive Officers (CEOs), (Rwanda Ministry of Justice, 2022). It government ministers, and other high includes a number of recommended policy ranking government officials have been actions such as enhancing ADR in civil designated champions for mediation. and administrative matters, introducing restorative circles in criminal matters, and creating an ADR institutional framework. 42 Assessment of Access to Justice and Alternative Dispute Resolution Systems 2. The Judiciary is ill-equipped to be the sole ◊ As an example, business professionals driver of ADR in Zambia. observed that ADR banking practices in other jurisdictions can be replicated here In the absence of strategic prioritization and if the right frameworks and supporting endorsement at senior political level, the infrastructure are in place. Judiciary is the defacto sole driver of ADR. The severe binding constraints to service delivery in the judiciary (WB, 2022) renders ADR an afterthought 4. Data Gaps on ADR undermine evidence- of the strategic planning and administrative based policy making. processes of the judiciary. Overburdened adjudicators and court administrators are ill- There is no reliable, publicly available data on equipped to drive the ADR agenda. any form of modern ADR in Zambia, hampering efforts to understand the efficacy and reach of • While the Judiciary is constitutionally ADR practice. mandated to promote ADR, policy- driven leadership from the executive • Efforts to obtain data on key indicators of (specifically the MoJ) is required. Key ADR performance (case volumes, efficiency, respondents attribute the poor success rate accountability, client satisfaction, etc.) across of the CAM program to the lack of executive- all forms of ADR proved unsuccessful. level engagement and budgetary support for the ADR agenda. 5. Industry fatigue from unfruitful ADR • In the absence of budgetary support for initiatives. ADR, the Judiciary relies on sporadic • Key industry informants report that past donor funding to kickstart ADR initiatives. donor- led attempts to expand ADR have The irregularity of donor funding means that not materialized into concretized action or Judiciary-led ADR efforts are ad hoc and policy change. A key reason for this lack of short-lived. success is a lack of sustained funding and • Outside of CAM, the Judiciary is not positioned technical support to donor-led projects. to drive ADR initiatives for the many forms of Some examples are: ADR that fall outside the scope of their day- ◊ The Zambia Centre for Dispute to-day operations. While intersections exist, Resolution (ZCDR), incorporated in 2000 other forms of ADR (e.g., arbitration) occur and funded by USAID to administer ADR predominantly outside the formal court and to provide training and accreditation system. for ADR practitioners. After USAID support 3. Lack of interjurisdictional learning. ended, ZCDR became defunct. Despite Zambia being an early adopter of ◊ Support for the CAM program: Between modern ADR processes on the continent, it has 1999–2000, Chemonics International had limited success in operationalizing ADR, (contracted by USAID) provided significant and must seek insight from other jurisdictions that financial and technical support to the have had greater success in onboarding ADR. onboarding of CAM in the Judiciary. While the CAM program is still running, cessation • Respondents bemoan the fact that while of USAID/Chemonics support has led to other African jurisdictions were keen to learn a marked degradation in the quality and from Zambia’s early efforts and experiences operations of the CAM program. in ADR, its ADR agenda has since stagnated. • While there is still strong interest among Despite this stagnation, there has been no stakeholders to engage ADR, the window concerted effort to seek insights from other of opportunity to capitalize on this interest jurisdictions that have had greater success appears to be shrinking. Many industry in mainstreaming and operationalizing ADR leaders express skepticism about the processes. prospects of ADR. • Industry bodies unanimously expressed 6. Lack of buy-in from and ill-preparedness keen interest in interjurisdictional of the legal fraternity. learning to improve ADR practice in Zambia, especially from regional counterparts such as The legal fraternity has shown a marked Kenya and Rwanda. reluctance to mainstream ADR processes and practices. Assessment of Access to Justice and Alternative Dispute Resolution Systems 43 • Lawyers worry that ADR might encroach legal profession, ADR processes, institutions, on their market share for legal business. and initiatives are dominated by members of Surveyed mediation practitioners strongly the legal profession. One respondent noted felt that the low success rate of court-annexed that “lawyers want to bring the dysfunction mediation is, at least in part, due to negative of the legal profession to ADR.” interference from the legal profession. • Many lawyers participating in arbitration Lawyers also believe that involvement in ADR adopt an adversarial and litigious mindset. hampers their career progression (e.g., those As a result, some stakeholders observed that aspiring to be judges require significant arbitration largely resembles normal court litigation experience). proceedings and can sometimes take as long • Many lawyers impugn the quality as ordinary litigation. of mediation in the CAM program. • Stakeholders shared that industry disputes Respondents report a widespread require the adjudicative expertise of those perception among lawyers that mediators in with in-depth knowledge of the substance the CAM program are not well trained. Given of the dispute. For these stakeholders, budgetary cuts for mediation training over training arbitrators and mediators from the years, this perception is not necessarily outside the legal profession is an urgent unfounded, and current training programs need. lack accreditation and certification processes. • There are insufficient training and capacitation opportunities for lawyers 8. Weak legal frameworks involved in ADR processes. Many ADR Key gaps in the regulatory framework for ADR practitioners in Zambia are generalists, and exist. The main gaps and their implications are do not have specialized skills to arbitrate or outlined in Table 4. A failure to address these mediate across increasingly complex matters regulatory gaps will further derail the ADR agenda in banking, technology, cyber-security, and in Zambia. construction. ADR is not a mandatory part of legal training in Zambia, and capacitation 9. Low awareness levels among would-be opportunities are rare. Stakeholders users of ADR noted that many lawyers do not know how to arbitrate, and this knowledge gap Findings indicate low awareness levels of increases the length and cost of arbitration modern ADR. proceedings. • “Awareness” is more than defacto knowledge • The Attorney-General’s (AG) Office of ADR processes, but also involves the accounts for a large volume of civil cases subjective belief that ADR processes can be in the court system, however, AG lawyers operationalized to meet justice needs and are ill-prepared for ADR processes. While therefore replace court processes. some AG personnel have received arbitration training, virtually none have received • While awareness of levels of formal court mediation training. Further, most AG lawyers processes is increasing (as evidenced by involved in mediation are not authorized to the growing volume of cases filed into conclude settlements. This lack of authority court across all divisions), there is no causes significant inefficiencies and fractures corresponding increase in awareness levels in mediation processes. of ADR mechanisms. 7. Lawyerization of ADR 10. Structural inequalities in the While participation in ADR is not restricted to international ADR framework the legal profession, ADR processes in Zambia are dominated by members of the legal Large enterprises operating in developing profession. countries favor international arbitration centers over domestic ones, thus impacting • While the demand for modern ADR the viability of home-grown centres like LIAC. processes is largely driven by the This undermines the viability of capacity building business sector, industry representatives efforts to grow ADR locally. bemoan their perceived exclusion from the ADR landscape by the legal profession. While • Large commercial disputes are typically participation in ADR is not restricted to the arbitrated outside Zambia. Dispute resolution for the large-scale construction 44 Assessment of Access to Justice and Alternative Dispute Resolution Systems industry in Zambia is governed by International • It is not immediately clear if arbitration Federation of Consulting Engineers business from small to medium (FIDIC) rules which do not encourage local enterprises can fulfil LIAC’s potentialities, arbitration. Even when disputes involve two especially because arbitration in Zambia is African parties, arbitration clauses favor already quite costly. To become financially international centers like the International viable, arbitral institutions require consistent Chamber of Commerce or the London streams of financing, which typically comes Court of International Arbitration. In from big business. terms of demographics and geographical representation, international arbitrators of color from developing countries are rare. Key Impediments: Traditional ADR The key task for policy makers is to formulate ◊ The responsibility of the MoJ to and establish policies, systems, and institutions administer traditional mechanisms of that preserve and leverage the comparative justice derives from its core mandate. advantages of traditional mechanisms, but • To effectively execute this mandate, the MoJ also safeguard the constitutional rights of must place strategic focus on traditional citizens that use these forums. mechanisms. This emphasis must be backed by robust policy formulation anchored While impediments to this task are plentiful, this on evidenced-based fact-finding. In this Assessment focuses on one, all-encompassing regard, the following must be noted: impediment, which must be prioritized. That impediment is: ◊ Traditional mechanisms must be a key component of the MoJ SP. The SP dictates The wholesale exclusion of traditional the programming and work plan of the mechanisms from the strategic, policy, and Ministry and therefore the wholesale programmatic positioning of the MoJ, and exclusion of traditional mechanisms for consequently: the 2022–2026 SP is a key gap. ◊ A national policy on traditional • The absence of operative frameworks to entrench justice-enhancing practices that mechanisms of justice is a critical need. can improve: This policy must lay out timebound and measurable priorities for the traditional ◊ Accountability justice sub-sector. Important priorities ◊ Alignment with constitutional imperatives include the establishment of supervisory (i.e., safeguarding the constitutional rights mechanisms and enforceable codes of of users) conduct to enhance the accountability of ◊ Integration with formal court systems traditional adjudicators; and safeguarding mechanisms to ensure that disputants ◊ Enhanced “choice of law” autonomy for in these systems have access to their users. constitutional rights (i.e., the right to be The following key points are important: heard and principals of equality and non- discrimination). Interjurisdictional learning • The MoJ has the overall responsibility of is key, and Zambia stands to benefit administering traditional mechanisms. from regional examples. For example, The core mandate of the MoJ is to facilitate Kenya provides strategic direction on the administration of justice and to promote traditional mechanisms through their the observance of the rule of law. In keeping Alternative Justice Systems Policy (Judiciary with this mandate, the MoJ has adopted of Kenya, 2020). The policy recognizes, this mission statement: “To provide legal but also regulates and enhances, the services, facilitate the dispensation of justice, use of Alternative Justice Systems in and promote good governance mechanisms” Kenya. Crucially, the policy also aligns the (MoJ, 2022). operation of traditional mechanisms with the principles and values of the Constitution of Kenya, 2010, and international human rights standards. Assessment of Access to Justice and Alternative Dispute Resolution Systems 45 • Institutional building is a key aspect of of traditional justice systems and enhancing traditional mechanisms. A excessive state interference with convening institution that can provide an their autonomy is itself a violation of operative framework to deploy national fundamental rights (particularly the right policy must be considered. In this regard: to self-determination). While customary law systems must be developed and ◊ The MoJ has the mandate to provide evolved to meet constitutional standards, strategic and policy direction to its client their fundamental character and important organizations, which includes the Zambia place in the constitutional order must be Law Development Commission (ZLDC), the preserved. agency responsible for developing and reforming the law. This policy direction Conclusion is critical, because past ZLDC attempts to reform customary law (for example, This chapter assessed ADR systems and processes attempts to “codify” customary law) were in Zambia. It did so by providing a situational sharply criticized for cultural insensitivity, analysis of ADR in Zambia, and by identifying and lack of awareness of the fundamental impediments to enhanced deployment of ADR characteristic of customary law (i.e., that it in the country. In the situational analysis, the is “living”, and therefore highly adaptable legal basis of the main forms of ADR in Zambia to evolving norms and societal concerns). was described. The analysis also answered key ◊ In administering the traditional justice questions on the modalities and uptake of ADR sub-sector, the MoJ must be guided by in Zambia. The key impediments that constrain comparative analyzes and contemporary the effectiveness of ADR processes were also scholarship that show that overregulation identified. 46 Assessment of Access to Justice and Alternative Dispute Resolution Systems Assessment of Access to Justice and Alternative Dispute Resolution Systems 47 4. Recommendations This chapter outlines recommendations to address the findings from Chapter 2— probable barriers to access to justice in underserved areas, and from Chapter 3—enhancing the uptake and operations of ADR processes and systems. Recommendations: Access to Justice in Underserved Communities Findings in Kawambwa suggest a complex and cross-cutting interplay of barriers that affect justice outcomes for residents in underserved areas. Table 11 proposes some actionable, context-appropriate, near- to medium-term recommendations to begin to address the probable barriers highlighted in Chapter 2. 48 Assessment of Access to Justice and Alternative Dispute Resolution Systems Table 11: Recommendations to address justice barriers in underserved communities Implementation Recommendation Probable Barrier Description Actionable first steps Implementors Period • Conduct a country- wide • MoJ legal needs survey to locate areas with legal • Ministry of needs. Finance and National Development • Use latest Census (MoFNP) The tight fiscal space, a growing data to collate social- Triage priority population, and widespread demographic info to • Gender groups in All justice deficits require evidence- Short-term determine priority Division underserved areas based triaging of legal priorities to groups. • Civil Society inform service delivery. Organizations (CSOs) • Available/existing administrative data • Cooperating (social services, courts, Partners (CPs) correctional facilities, etc.) • Research can be used to triage Institutions need. • MoJ MoND • Gender • Legal illiteracy • Develop literacy Division • Limited-to-no- Country-wide, targeted literacy measuring indicators. programming is not being done • Ministry of Develop targeted legal service in Zambia. Raising the justice • Incorporate Education legal literacy delivery/legal aid Medium-term prospects of citizens requires a literacy mainstreaming programming • CSOs • Entrenched greater awareness of rights and models into current cultural beliefs enforcement mechanisms. access to justice • CPs programming. • Gender equality • Schools and tertiary institutions Assessment of Access to Justice and Alternative Dispute Resolution Systems 49 An audit on the effectiveness of • Legal illiteracy court procedure is long overdue. • Limited-to-no- The Kawambwa findings show • Appoint a task force to • MoJ legal service that context-insensitive courts audit court processes and Simplify court • Judiciary delivery/legal aid that ignore socio- demographic Medium-term make recommendations processes MoFNP realties quickly become to align them with • Context- irrelevant. If courts exist to serve demand side needs. • ZLDC insensetive communities, they must adapt to courts the needs of those communities. • Study successful models • Geographical Justice infrastructure in Zambia of Justice Devolution from barriers has not devolved to meet legal other jurisdictions. Pursue need where it arises; districts/ • MoJ • Extreme poverty • Conduct a “justice strategies of local authorities must be Medium-term mapping” exercise • Judiciary localized justice • Context empowered to rationalize local to inform what MoFNP insensitive justice resources against demand citizens require to courts side needs. access existing justice infrastructure. Evaluate gender Gender inequality remains a mainstreaming country- wide, strident justice • Develop assessment policies and Gender inequality barrier. Gender mainstreaming tools for existing gender Short-term programming. and programming has been programming. • MoJ MoFNP a major part of government policy over the last two decades. • CPs Without periodic assessment, it • Gender is difficult to gauge the gains and Division gaps. • MoJ MoFNP CPs Design community- • Conduct a social norm • Gender based Interventions Chapter 2 findings suggest sub- assessment to assess Division to address social optimal use of legal services by how social norms along Research norms that females due, in part, to social the justice chain affect Institutions influence sub- norms. It is necessary to identify Short-term female use of the legal optimal use of the Gender inequality and address the social norms that legal system by impede a female’s ability to seek system. females. and enforce legal remedies. 50 Assessment of Access to Justice and Alternative Dispute Resolution Systems Explore Unregulated Addressed in Addressed in frameworks for traditional Addressed in Table 13 Addressed in Table 13 Table 13 Table 13 traditional Systems mechanisms Gender inequality remains a country- wide, strident justice • Develop assessment Evaluate gender Gender inequality barrier. Gender mainstreaming tools for existing gender mainstreaming Short-term and programming has been programming. policies and • MoJ MoFNP a major part of government programming. policy over the last two decades. • CPs Without periodic assessment, it • Gender is difficult to gauge the gains and Division gaps. Design community- • MoJ MoFNP CPs based Interventions to address social • Conduct a social norm • Gender Chapter 2 findings suggest sub- norms that assessment to assess Division optimal use of legal services by influence sub- how social norms along Research females due, in part, to social optimal use of the the justice chain affect Institutions norms. It is necessary to identify legal system by Short-term female use of the legal Gender inequality and address the social norms that females. system. impede a female’s ability to seek and enforce legal remedies. Explore Unregulated Addressed in Addressed in frameworks for traditional Addressed in Table 13 Addressed in Table 13 Table 13 Table 13 traditional Systems mechanisms Assessment of Access to Justice and Alternative Dispute Resolution Systems 51 Recommendations: ADR Processes and Systems The following tables outline a list of recommendations that provide a workable aligned to an identified impediment. The recommendations also outline an pathway for enhancing modern and traditional ADR practice in Zambia. The implementation period, functionaries responsible for implementation, and recommendations center on establishing an MoJ-hosted, sustainably- actionable first steps to implement the recommendation. financed Technical Working Group (TWG) to drive the ADR agenda. In formulating the below recommendations, the following question guides: Recommendations for modern ADR and traditional ADR are dealt with Given the potentialities of ADR, what is required to give ADR full expression separately in Tables 12 and 13 respectively. Each recommendation is in Zambia? Recommendations: Modern ADR Table 12: Modern ADR Recommendations Implementation Impediment Recommendation Actionable first steps Implementers period • Constitute an ADR TWG from a cross-section of ADR enablers/drivers/influencers (i.e., industry, LAZ, LIAC/ ADR Institutes, Judiciary, MofNP, CPs, Law Schools, traditional leaders). • MoJ to motivate a budgetary line for sustainable operations of TWG. • MoJ Exclusion of • Establish Sub-Committees of the ADR TWG to • MofNP ADR from the spearhead the implementation of Chapter 3 recommendations (Tables 12 and 13). • LAZ national and 1. Establish a sustainably- strategic justice financed ADR TWG at Recommended Sub-Committees are: • Judiciary Short-term agenda, and lack the MoJ to drive the ADR • ADR of senior political agenda. • Sub-Committee on Strategy, Outreach and Engagement institutes endorsement of • Sub-Committee on ADR Uptake in the Legal Profession the ADR agenda. • CPs • Sub-Committee on ADR Uptake in Industry • Sub-Committee on CAM • Law Schools • Sub-Committee on Data Collection • Sub-Committee on Law Reform • Sub -Committee on Traditional mechanisms (see Table 13) 52 Assessment of Access to Justice and Alternative Dispute Resolution Systems 2. Ensure enhanced strategic • Sub-Committee on Strategy, Outreach and Engagement positioning of ADR to formulate a time-bound implementation plan to 3. Designate high-level achieve inclusion of ADR in the next MoJ SP (2027–2031). • MoJ political and institutional Short-term • Sub-Committee on Strategy, Outreach, and Engagement • Judiciary champions to advocate to identify and appoint key political/judicial leaders to and promote the ADR champion ADR and have observer status on the TWG cause. 4. Formulate a memorandum of agreement between The Judiciary is ill- the Judiciary and the • Sub-Committee on Strategy, Outreach, and Engagement • MoJ equipped to be the MoJ that assigns roles Short-term to formulate an initial draft of an MOU and table it with sole driver of ADR • Judiciary and responsibilities the Judiciary’s ADR committee. in Zambia in promoting and entrenching the ADR agenda. • MoJ • Judiciary • Sub-Committee on Strategy, Outreach, and Engagement Lack of 5. Actively participate in • CPs/Donors o appoint Focal Point Person (FPP) to identify regional interjurisdictional regional, knowledge Short-term initiatives in ADR and mobilize funds for Zambia’s • ADR learning sharing, ADR initiatives. institutes participation. • Industry bodies 6. Enhance data capabilities for the main forms of • MoJ ADR including mediator/ • Judiciary • Sub-committee on Data Collection to formulate arbitrator capacities, • ADR Data Gaps on ADR Short-term standardized data collection pathways for Modern ADR and collation of statistics institutes processes. on issues such as case • Industry volume, efficiency, and bodies compliance rates. Assessment of Access to Justice and Alternative Dispute Resolution Systems 53 7. Commission LAZ to • LAZ-led, Sub-Committee on ADR Uptake in the Legal • MoJ incentivize greater ADR Profession to make and disseminate a costed business uptake in the Legal Short-term case for ADR to industry clients of legal services. (This • Judiciary Profession by stimulating can include forecasting quantified savings from the use • LAZ Lack of buy-in and industry demand for ADR. of ADR processes). ill-preparedness in • ADR institutes the legal fraternity to undertake ADR • Research 8. Include mandatory ADR • Sub-Committee on ADR Uptake in the Legal Profession institutions courses in law school to convene law schools and legal education institutes to • Law schools Medium-term syllabi to demystify ADR determine a pathway of inclusion of ADR in law school among future lawyers. syllabi. • ZIALE • MoJ 9. Implement inclusive • Judiciary frameworks to encourage • CPs/Donors Lawyerization of • Sub-Committee on ADR Uptake in Industry to survey participation of non-legal Short-term ADR ADR industry needs and opportunities • ADR ADR practitioners in the institutes ADR ecosystem. • Industry bodies 10. Explore the establishment of a statutory body to administer ADR in Zambia. • MoJ Specifically, this body • ADR TWG must have the explicit Weak legal mandate to establish and • MoFNP frameworks enforce ADR practitioner • Sub-Committee on Law Reform to convene all • Judiciary and supporting codes of conduct, the Medium-term stakeholders to determine the structure, mandate, and • National infrastructure for supervision of mediation functions of the proposed body. Assembly ADR settlements, the accreditation of training • ADR institutes programs and mediators, and to establish and • CPs/Donors implement quality-control frameworks. 54 Assessment of Access to Justice and Alternative Dispute Resolution Systems 11. Conduct a feasibility study • Sub-Committee on Law Reform to commission into enforceability options Medium-term feasibility study. for private mediation. 12. Conduct a detailed audit • Sub-Committee on CAM to second a senior judge with of the CAM program to institutional memory and administrative experience identify service delivery Short-term of the CAM program to oversee the audit (the barriers and to design appointed judge must be relieved from adjudicative program-enhancement responsibilities to allow for dedicated focus). interventions. 13. Formulate a costing plan for enhanced court- annexed mediation to fund: • dedicated premises • continuing education and professional development • Sub-Committee on CAM to formulate costing plan as with appropriate Medium-term part of CAM audit (point 12 above). accreditation • mediator standards and disciplinary processes • full-time mediators • upward revision of court- annexed mediator fees. Assessment of Access to Justice and Alternative Dispute Resolution Systems 55 • Sub-Committee on Law Reform to design quality control 14. Implement quality control and performance assessment indicators for arbitration mechanisms for all ADR Short-term and mediation. These indicators can be enforced by the programs. proposed statutory body in point 10. • MoJ 15. Develop and conduct targeted sensitization • Judiciary to enhance ADR literacy • Sub-Committee on Strategy, Outreach, and Engagement • ADR among (current and to work collaboratively with the Sub-Committee on Short-term institutes future) ADR practitioners ADR uptake in Industry to sensitize industry through Low awareness across the spectrum of targeted roadshows and workshopping. • NGOs levels among would-be users of ADR • Industry would-be users of mechanisms bodies ADR. 16. Develop incentivization • Sub-Committee on Strategy, Outreach, and Engagement structures to promote the Short-term to design court-based awareness raising programming use of ADR. on the benefits of the CAM program. • MoJ Structural • MofNP 17. Explore sustainable • Sub-Committee on Strategy, Outreach, and Engagement inequalities in the • Judiciary financing programs for Short-term to survey ADR financing models in comparator international ADR • CPs/Donors local ADR institutions. jurisdictions and make recommendations to MoJ.22 framework • ADR institutes For example, the NCIA is largely funded by the Government of Kenya; The Kigali International Arbitration Centre initially received grants from local and international organizations, and then developed fundraising 22 strategies such as membership subscription and conference and room hire fees). 56 Assessment of Access to Justice and Alternative Dispute Resolution Systems Recommendations: Traditional ADR Table 13: Traditional ADR Recommendations Implementation Impediment Recommendations Actionable first steps Implementers period Exclusion of traditional 1. Establish a “Sub-Committee on mechanisms from Traditional Mechanisms” of the • Sub-Committee on Traditional • MoJ the strategic, proposed ADR TWG (see previous Mechanisms to spearhead the inclusion Short-term • Judiciary policy, and table) to spearhead the strategic of traditional justice in the next MoJ SP programmatic elevation of traditional mechanisms (2027–2031). • ADR institutes positioning of the at ministerial and national level. MoJ 2. Formulate a national policy on • Sub-Committee on Traditional • MoJ traditional mechanisms that includes Mechanisms to spearhead the drafting time-bound and measurable goals • Judiciary of a discussion paper on a proposed and strategies to enhance the Short-term national policy and undertake significant • Traditional courts accountability of these mechanisms consultation with all interested as well as the safeguarding of due • Traditional leaders stakeholders on the scope and content process and constitutional rights of of a national policy. • Research institutes users of these systems. • Sub-Committee on Traditional Mechanisms to commission (i) a legal • MoJ needs assessment of the traditional sub- 3. Inculcate evidence-led, policy • Judiciary sector; and (ii) an ethnographic, multi- making and justice programming in Medium-term year, longitudinal study on traditional • Research institutes the traditional justice sub-sector. ADR systems and processes in Zambia to provide appropriate context for justice • ADR institutes programming in the area. 4. Conduct a feasibility study into the establishment of a multi-sectoral • Sub-Committee on Traditional • MoJ body to administer traditional Mechanisms to commission a • Judiciary justice in Zambia, and provide Short-term comparative study on operative the operative frameworks for frameworks for traditional mechanisms • Research institutes the deployment of the proposed in the region. • ADR institutes national policy. Assessment of Access to Justice and Alternative Dispute Resolution Systems 57 58 Assessment of Access to Justice and Alternative Dispute Resolution Systems Assessment of Access to Justice and Alternative Dispute Resolution Systems 59 5. Implementation of the Judicial Sector PIER and ADR Recommendations Context The MoJ’s SP 2022–2026 sets out the Ministry’s agenda for the next five years and outlines 11 strategic objectives. The descriptions of the objectives are broad, but their attached targets are highly specific and trackable. The SP “will guide the Ministry’s programmes, decision-making and resource allocation during the period 2022–2026” (MoJ, 2023). Therefore, issues that fall outside of the scope of the SP are likely to remain unaddressed, as justice programming will largely be confined to the SP areas. In this regard, the SP and its strategic objectives do not currently address the Judiciary, recommendations from the PEIR, or actions to strengthen ADR. Consequently, the five-year duration of the SP means that recommendations of both the PEIR and this Assessment, (A2J-ADR) which were crafted to tackle longstanding binding constraints of the justice sector, may remain unaddressed for the next five years. To ensure sustained focus on the recommendations of these reports, this chapter integrates some key recommendations from both reports into the MoJ’s strategic objectives to promote coordination and alignment. Hopefully, this can ensure that the key issues raised in each report remain on the strategic agenda of the MoJ for action. As noted in Chapter 3 of this Assessment, there is evidence of a strong business case and access to justice case for enhanced ADR, especially in the context of the constraints of the formal court system. Implementation of the PEIR recommendations can address many of the binding constrains on the supply side of justice delivery. 60 Assessment of Access to Justice and Alternative Dispute Resolution Systems Integration of Report Recommendations to the Strategic Plan Of the 11 strategic objectives outlined in the SP, the relevant recommendations from each three have some relevance to the findings and report, and key questions for achieving the recommendations of the two reports. These recommendation. The tables also outline objectives are to: 1.) Improve Promotion of Good partner implementers that the MoJ must work Governance, 2.) Improve stakeholder collaboration with, with the understanding that MoJ is the and coordination, and 3.) Improve financial key implementer for all recommendations. capacity and management. The remaining eight • The tables do not assign timeframes, as objectives relate to the internal workings of the the SP has designated timelines, and it MoJ and/or are not directly relevant to the subject is for the MoJ to determine how it may matter of the two reports. These objectives are restructure its plans to accommodate these therefore not addressed below. recommendations. The following tables identify which • The tables for Objective 6 (Improve recommendations (in either report) have some Promotion of Good Governance) are relevance to the three strategic objectives. structured slightly differently to the In so doing, it is hoped that relevant report others. This strategic objective is the recommendations can be incorporated into the main relevant objective for both reports overall pursuit and implementation of the relevant and contains a number of particular strategic objective. The formatting of the tables is “actions” in the description. To better align as follows: recommendations to the strategic objective and make the link clearer, the tables include • Each strategic objective has two tables; an extra column outlining the particular one pertains to the PEIR and the other to action that the recommendation pertains to. access to justice ADR. The tables outline Strategic Objective 6: Improve Promotion of Good Governance Objective Description: “The Ministry will focus policy frameworks; • Strengthening Monitoring on improving promotion of good governance and Evaluation Mechanisms; • Strengthening in order to ensure improved compliance to Democratic and Political Governance mechanisms; rule of law, transparency and accountability. Strengthening accountability and transparency This will be done through the following: • mechanisms; • Supporting anti-corruption Strengthening implementation of the Access to initiatives; and • Enhancing Corporate Governance Justice Programme; • Strengthening legal and Mechanisms.” Assessment of Access to Justice and Alternative Dispute Resolution Systems 61 Table 14: Strategic Objective 6: Improve Promotion of Good Governance (PEIR) Particular action Partner Relevant Key questions for achieving under strategic implementers recommendation recommendation goal with MoJ • What are the costs of Conduct a “legal conducting a survey? • Judiciary needs survey” to obtain a qualitative • Who will conduct the survey, • LAB understanding of the and when? • CSOs justice gap in Zambia • What factors should influence and create a diagnostic • CPs/Donors study design? that can inform policy • Research shifts and stakeholder • How will study findings dialogue/engagement. be integrated into policy • institutions Strengthening frameworks? legal and policy frameworks • How do the gaps in the • Judiciary Support law reform to give the Judicial JCC’s current jurisdiction • National Complaints Commission impact accountability of the Assembly (JCC) jurisdiction in Judiciary? • JCC removal procedures • Are there any unintended for all levels of judicial consequences of reform in • CPs/Donors officers. this area? • CSOs Advocate for greater • Judiciary • What makes the current transparency and framework unaccountable? • National accountability in the Strengthening Assembly legal frameworks • What do comparative accountability governing the jurisdictions do in this • JCC and appointment of judges sensitive area? transparency • JSC and members of mechanisms • Are there any unintended the Judicial Service • CPs/Donors consequences of reform in Commission (JSC) and this area? • CSOs JCC. 62 Assessment of Access to Justice and Alternative Dispute Resolution Systems Table 15: Strategic Objective 6: Improve Promotion of Good Governance (A2J-ADR) Particular action Partner Key questions for achieving under strategic Relevant recommendation implementers recommendation goal with MoJ • How will enforcement of the codes be resourced? • How will practitioners Establish a statutory be familiarized with the body to administer ADR codes? in Zambia. Specifically, this body must have • What are the business the explicit mandate to and access to justice • Judiciary establish and enforce consequences of • National ADR practitioner codes of unsupervised mediation Assembly conduct, the supervision of settlements? mediation settlements, the • Executive • Who should be assigned accreditation of training • ADR institutes the responsibility programs and mediators, and resourcing for and to establish and supervising mediation implement quality control settlements? frameworks. • How can enforceability of mediation settlements be tracked? • What are the experiences Conduct a detailed audit of program users? of the CAM program to What issues have they identify service delivery encountered? Are there Strengthening barriers and to design mechanisms to collect feedback? • Judiciary legal and policy program-enhancement frameworks interventions. • Should program interventions be piloted in one court? Which court should this be? Formulate a national policy on traditional mechanisms • What accountability • Judiciary that includes time-bound measures can be and measurable goals and • Traditional used, and how will strategies to enhance the courts these mechanisms be accountability of these enforced? • Traditional mechanisms as well as leaders the safeguarding of due • What do comparative process and constitutional jurisdictions do in this • Research rights of users of these area? institutes systems. Conduct a feasibility study • Judiciary into the establishment • What are some of a multi-sectoral body comparative operative • Traditional to administer traditional frameworks for courts justice in Zambia, and traditional justice that • Traditional provide the operative have worked? leaders frameworks for the • How will the proposed deployment of the • Research body be resourced? proposed national policy. institutes Assessment of Access to Justice and Alternative Dispute Resolution Systems 63 • What are the priority areas for data collection? Enhance data capabilities • Can existing processes be for the main forms of used as data collection • Judiciary Strengthening ADR including mediator/ points? Monitoring arbitrator capacities, • ADR institutes and Evaluation and collation of statistics • Who should be assigned the responsibility and • Industry Mechanisms on issues such as case resourcing for data bodies volume, efficiency, and compliance rates. collection? • How will collected data be stored? Strategic Objective 7: Improve stakeholder collaboration and coordination Objective Description: “The Ministry will through the following: • Development and focus on improving stakeholder collaboration implementation of a communication strategy • and coordination, in order to ensure effective Development and implementation of a stakeholder programme implementation. This will be done management plan”. Table 16: Strategic Objective 7: Improve stakeholder collaboration and coordination (PEIR) Partner Relevant Report Key questions for achieving Implementers with recommendation recommendation MoJ Strengthen public information, communication, and citizen engagement on the work • How will the impact of implemented strategies on public trust be measured? • Judiciary of the Judiciary, generally through developing and • How can the MoJ assist enhanced • CPs/Donors implementing a citizen outreach and public engagement of the • CSOs communication engagement Judiciary? strategy and/ or hiring communication officers. Table 17: Strategic Objective 7: Improve stakeholder collaboration and coordination (A2J-ADR) Partner Relevant Report Key questions for achieving recommendation Implementers recommendation with MoJ Formulate a memorandum of agreement (MOA) between the Judiciary and the MoJ • Who has the authority to execute an MOA that assigns roles and on behalf of the Judiciary? How will they be Judiciary responsibilities in promoting engaged? and entrenching the ADR agenda. 64 Assessment of Access to Justice and Alternative Dispute Resolution Systems Strategic Objective 8: Improve financial capacity and management Objective Description: “The Ministry will focus the following: • Developing and implementing a on improving financial capacity and management, resource mobilization strategy • Strengthening in order to ensure increased financial capacity, internal controls • Strengthening monitoring financial accountability and prudent use of and evaluation mechanisms.” financial resources. This will be done through Table 18: Strategic Objective 8: Improve financial capacity and management (PEIR) Partner Relevant Report Key questions for achieving recommendation Implementers recommendation with MoJ • Executive Devise a robust and • Does the resource mobilization strategy • Judiciary integrated resource in the MoJ SP also include resource mobilization strategy for the mobilization for the Judiciary? If not, can it be • National Assembly Judiciary. included? • CPs/Donors Table 19: Strategic Objective 8: Improve financial capacity and management (A2J-ADR) ΩΩ Partner Relevant Report Key questions for achieving recommendation Implementers recommendation with MoJ Formulate a costing plan for enhanced court-annexed mediation to fund: • dedicated premises • Judiciary • continuing education and professional development • Who has the technical expertise to formulate • National with appropriate the costing plan? Assembly accreditation • Should the costing plan be phased? • ADR • mediator standards and institutes disciplinary processes • full-time mediators • upward revision of court- annexed mediator fees. Assessment of Access to Justice and Alternative Dispute Resolution Systems 65 66 Assessment of Access to Justice and Alternative Dispute Resolution Systems 6. Report Conclusion This Assessment has surveyed key barriers in Linked to this was an exploration of the potential the access to justice landscape in Zambia, with a for ADR mechanisms to address some of the more particular focus on underserved communities. pernicious challenges faced by those with legal The Assessment has also examined the potential disputes. A stock-take of existing ADR avenues for ADR mechanisms to bridge the gaps of the and their prevalence and quality unearthed formal justice system and to improve the overall key impediments to the mainstreaming of ADR. justice picture in Zambia. To mobilize modern ADR, there is need for executive-led support for ADR institution building. A key focus of the Assessment was a field study This requires strategic focus. For traditional in the Kawambwa District, which focused on the j mechanisms, it was found that their wholesale ustice needs of underserved communities. Study exclusion from the MoJ’s supervisory function is a findings were used to extrapolate probable, key gap. While traditional justice systems have in- country-wide barriers to accessing justice. built comparative advantages, the constitutional rights of citizens who use these systems must be enhanced. This too requires strategic focus and political support. Assessment of Access to Justice and Alternative Dispute Resolution Systems 67 68 Assessment of Access to Justice and Alternative Dispute Resolution Systems Annexes Annex A - Other forms of ADR: Modern System ADR Form Description Legislation • Informal and widely used but not governed by Negotiation is generally legislation. Negotiation conducted in private without • Some legislation does refer to negotiation, for set rules (Folberg et al, 2016). example the Public Procurement Act No. 8 of 2020. • There is no Zambian legal framework for this, Adjudication Parties present evidence to but adjudication is widely used in construction and Dispute an adjudicator who makes (through the FIDIC23 contract). Avoidance/ a decision which becomes • Provision is made for the appointment of Adjudication enforceable if the parties a DAAB to help parties avoid and resolve Boards do not dispute it within a disputes. If this fails, the dispute is referred to (DAAB) stipulated time. arbitration under the International Commercial Court. • Governed by the Electoral Processes Act (EPA). Allows the Electoral • s.112 allows ECZ to resolve disputes through Mediation Commission of Zambia (ECZ) mediation. in election to use mediation for disputes disputes • s.113 allows Conflict Management Committees during elections. to resolve disputes through mediation or “amicable settlement”. Office of Can resolve disputes • s.36 of the Public Protector Act No. 15 of 2016 the Public through its mandate on provides for the use of mediation, conciliation, Protector maladministration. or negotiation. Federation Internationale des Ingenieurs-Conseils. 23 Assessment of Access to Justice and Alternative Dispute Resolution Systems 69 Annex B – Modern ADR Infrastructure ADR type Infrastructure Status Implementation notes Mediation Office within the Judiciary. Functions include to: • Lusaka mediation • facilitate the process between office: 4 officers parties and mediators The Lusaka mediation Court- • Kitwe: 1 officer • attend to mediators room was converted to annexed • Ndola: 1 officer chambers for a recently mediation • process mediation settlement appointed judge. orders • Livingstone: 1 officer • guide parties on settlement orders, especially where parties fail to comply. No. of mediators, 2023: Mediators are trained by the Judiciary to conduct court- • Lusaka: 141 (41 annexed mediation. • active, 60 inactive). Fees are paid to a Court- • Kitwe: 20. mediator in equal annexed portions by the mediation • Ndola: 8. An applicant must possess a parties.24 diploma or degree in a relevant • Livingstone: 4. field and have five years or more work experience in that field. • Kabwe: 5 (no mediation office). Chartered Institute of Arbitrators (CIArb) Zambia branch Current membership: • The legal profession Operating in Zambia since • 226 members (72 plays a large role. 2011, it promotes and facilitates female) There are close to arbitration and other ADR 100 members from • 32 fellows (11 the legal profession, forms in diverse fields such female) and 32 members are as architecture, engineering, quantity surveying, law, • 89 members (29 judges. Arbitration insurance, accounting, and female) • In the Committee human resources. Functions • 59 associates (19 of 11 members, 9 include: female) members are from the legal profession. • mediation training in • 45 students (13 conjunction with the Judiciary female) • CIArb Zambia is not • organizing training a convening institute • (CIArb Zambia for the conduct of • administering domestic Branch Report, arbitrations. arbitration references 2023). • creating awareness of arbitration. Order 31 Rule 13. 24 70 Assessment of Access to Justice and Alternative Dispute Resolution Systems Zambia Centre for Dispute Resolution (ZCDR) Defunct due to lack of funding. Incorporated in 2000 to provide ZCDR ceased to exist arbitration, mediation, training, when USAID funding and accreditation. ended. Guarantors of All forms Majority ZCDR the center (including of modern It conducted workshops for members moved to LAZ, BAZ, EIZ, ZACCI and ADR professional bodies and the the newly established Zambia Association of Judiciary’s court-annexed CIArb Zambia branch, Manufacturers) did not mediation training. and all property and fund the center. staff of ZCDR was It also conducted arbitration divested to the branch. training in partnership with CIArb London. ZAA is mentioned in the Arbitration Defunct due to lack of Zambia Association of (Code of Conduct and funding and replaced Arbitration Arbitrators (ZAA) followed the Standards) Regulations by the CIArb Zambia creation of the ZCDR. 2007 for handling branch. the misconduct of arbitrators. Labor Officers are Ministry of Labour and Social obliged to intervene Security and try to resolve the Mediation Ongoing disputes through social Parties in a workplace dispute dialogue (s121(2)(a), can seek mediation from the Employment Code Act Ministry. No. 3 of 2019). The current Minister Ministry of Justice (MoJ) of Justice was the first Zambian fellow In previous years the MoJ under CIArb and had given its support to the is a proponent of All forms promotion of ADR. Ongoing arbitration. However, there does not seem In the recent past the MoJ has to be as much support obtained training for all its from the MoJ for other lawyers in arbitration. forms of ADR. Prior to the Children’s Social welfare officers are Code, diversion was Diversion recognized under the Children’s conducted informally, ADR for Code as the officers who will typically by police children’s Ongoing conduct diversion ADR (s85(h), mediating with the criminal Children’s Code Act No. 12 of accused child and matters 2022). complainant (and families). Assessment of Access to Justice and Alternative Dispute Resolution Systems 71 Ongoing Paralegals/CSOs provide legal Paralegals are not aid services to indigent persons In 2017, there were allowed to conduct and vulnerable groups. 750 to 900 paralegals arbitration or court- (International Legal Aid annexed mediation. Group Report, 2017). Mediation by Paralegals may engage in ad paralegals/ hoc mediation where necessary. CSOs The role of CSOs Given the numerous disputes Between June 2017 in providing legal across the country at various and June 2022, more aid services is not levels, this crop of professionals than 104,000 Zambians formally recognized in does form part of the ADR received legal aid legislation. infrastructure in Zambia. through paralegals (GIZ, 2023). 72 Assessment of Access to Justice and Alternative Dispute Resolution Systems Annex C – ADR Initiatives: Past and Present Initiative Description Status During the period of 1999–2000, Chemonics International (contracted by USAID) undertook significant work in Implementation conjunction with the Judiciary and other stakeholders to of court- institutionalize mediation in the justice system. This included Completed annexed establishing a mediation model, training 50 lawyers and mediation non-lawyers to become mediators, facilitating co-mediation sessions, and providing policies and procedures for ongoing use of mediation. The Judiciary understands the potential for ADR to meet justice needs. Ongoing efforts include: • Court-annexed mediation and requisite training • Establishment of an Advisory Committee on Court-annexed Mediation and Delay Reduction in 2017 Other Judiciary Ongoing initiatives • Establishment of the Zambia Mediation Project in 2019 as a mediation training initiative • Launch of the Mediation Charter • Conducting settlement weeks, where High Court judges select cases for settlement (Judiciary of Zambia, Mediation in Zambia and Statistics, n.d). CIArb signed a MOU to create an international ADR center. Several embassies expressed interest in sponsoring the initiative provided there was buy-in from the government. CIArb/ZACCI/ The MoJ offered to donate a piece of land for the center. Unknown/ MoJ ADR center ZACCI applied to become an arbitral institution but this was obsolete partnership rejected due to their membership comprising corporates and not individuals. The ZLDC was also engaged to consider the formulation of mediation, arbitration, and adjudication simultaneously. The IME is a newly established private mediation company incorporated by three Zambian lawyers. The company intends to enhance access to justice by promoting mediation for a wide spectrum of disputes both within and outside the court system. It is envisaged that its function will improve private Institute for dispute management, corporation stability, human resource Mediation Ongoing management, preservation of business relationships and will Excellence (IME) benefit the national economy by redirecting large sums of money, otherwise locked in litigation, back into the economy. The Institute is currently engaged in the setting up of its training and mediation service objectives. Assessment of Access to Justice and Alternative Dispute Resolution Systems 73 There have been a number of ADR training initiatives by local institutions (including the Judiciary, CIArb, LAZ and the Zambia Institute of Advanced Legal Education (ZIALE), as well as international partners to promote ADR. 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Highlights of the 2022 Poverty Assessments in Zambia 78 Assessment of Access to Justice and Alternative Dispute Resolution Systems The World Bank Zambia Office Evexia Commercial Complex Plot #1014, 4th Floor, Church Road Lusaka P.O. Box 35410 Lusaka, Zambia Tel: (260-21) 137-3200 Fax: (260-21) 137-3248 www.worldbank.org/zambia commszambia@worldbank.org