Family Law Essay

1985 WordsDec 2, 20138 Pages
A high court judge, Mr. Justice Mwamba married a girl under sixteen years of age and lived with her as man and wife. The two got married under customary law and they consummated their marriage the night of their wedding. This account is an attempt to advise the human rights activists who got wind of this union on what legal actions can be taken against the judge and the chances of success. This will be done by taking into account the laws currently prevailing in Zambia. The legal issues that will be the focus of discussion are whether the marriage conducted under customary law involving a girl below sixteen years of age is lawful and whether the said consummation can amount to defilement. Zambia has a dual legal system. This means that the application of Customary Law is permissible as much as Statutory Law. The application of Customary Law in Zambia facilitates the recognition of the validity and existence of customary marriages. The relevant laws that refer to the application of Customary law in Zambia include, the provisions of article 23 (1) and 4 (d) in the Zambian Constitution , section 16 of the Subordinates Court Act and section 12 of the Local Court Act . According to the aforementioned statutes, customary law in Zambia shall be valid on condition that its observance is limited to those practices and customs which do not contradict the written law or which are not repugnant to natural justice, good conscience and morality. The renowned case of Kaniki v. Jairus is a good example of the application of customary law in Zambia. In this case, the Lala Custom of “Akamutwe” was questioned because it required the surviving spouse to pay the family of the deceased spouse a sum of money to cleanse themselves of the spirit of the dead spouse. It was held that customs and practices that are repugnant to natural justice or good conscience will rendered unlawful.

More about Family Law Essay

Open Document