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Zambian Law - Statutory Interpretation
INTRODUCTION
Rules
of Statutory interpretation refers to the various rules that the courts employ
to interpret provisions of the law. It is trite that the Judiciary' primary
responsibility is to interpret those laws enacted by the Legislature therefore,
the courts have developed several rules that guide judges on how to interpret
provisions of the law. It vital to also understand why the need for rules of
Statutory interpretation before discussing the rules themselves. On that basis,
this writing will begin by highlighting why the need of statutory
interpretation and then proceed to discuss the rules of statutory
interpretation
WHY
THE NEED FOR RULES OF STATUTORY INTERPRETATION?
a. Impossibility of Seeking Clarification from
The Drafts-persons: what this means is that the courts cannot request the actual
legislatures who made the laws to offer clarity on what they meant when they
enacted the same laws. The courts when faced with a challenge to interpret the
law may encounter words or statements that the drafts-persons when drafting may
have not thought to be challenging, therefore, the fact that the said
drafts-persons cannot be contacted to guide the court on what the meant on the
day of drafting provides a reason for adopting rules that the court may employ
to interpret the law. Besides the legislature’s role is to make laws and not
interpret them.
b. Usage
of Ambiguous Words: certain laws are drafted with ambiguity; uncertainty and
vagueness. This often makes a provision susceptible to misinterpretation which
leads to abusive of law, therefore, the courts need rules to interpret statutes
so as to clear any ambiguous meanings to the law.
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An example of ambiguity in law
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Imagine a law is passed that reads. “the
playing of any sports within 1 kilometer of a hospital is prohibited” for
context sake, this law is passed in order to prevent the rampant behavior of
boys in a certain area from playing football near hospitals because that
disturbed the patients. Therefore, what if the same boys begin
to engage in horse racing, or car racing which are not recognised sports in
Zambia, near the same hospitals, would the same law above apply?
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The
above example shows why the court developed rules that help them give meaning
to laws.
c. Broader
or Narrow Meaning of Laws: certain laws may have broader or narrow meanings
attached to them, the drafts-persons may do this intentionally to leave it up to
the recipient to determine what scope or to what extent would the meaning in
the provision apply.
d. Technique Errors: there may be in fact instances where the words have not been drafted correctly or the were errors in terms of printing the documents. This therefore, invites the court to apply themselves in rectifying such errors.
THE
7 RULES OF STATUTORY INTERPRETATION
1.
LITERAL RULE
This
rule provides the general rule of interpreting a statute. It governs that where
the words are clear and simple the courts have nothing more or less to do than
to ‘take the words as they are’ and give effect to their literal meaning as
they appear. One of the most famous quote that placed emphasis on courts to use
this approach was that of Tindal C.J.,
in
the Sussex Peerage Case[1] where the then Chief
Justice of England stated:
“… the only rule for the
construction of Acts of Parliament is, that they should be construed according
to the intent of the Parliament which passed in the Act. If the words of the
statute are in themselves precise and unambiguous, then no more can be
necessary than to expound those words I their natural and ordinary sense. The
words themselves alone do, in such case, best declare the intention of the
lawgiver.”
The
above statement has greatly influenced judgments where the Literal Rule
approach was taken. One reason why the Literal Rule is emphasized by some
jurists is that if the courts began to apply other rules (as will been seen below)
and divert from the Literal approach, it would mean that courts would assume
the role of the legislature in making laws, this stems from the fear of not
wanting to contradict with Parliament’s intention which is shown the Act.
Below
are some cases that demonstrate how Literal Rule was employed.
In
Mutale
v The Attorney General[2]
the applicant sought leave to apply for a writ of habeas corpus. They
challenged their detention under the Preservation of Public Security
Regulations, on the ground that the detaining authority had not complied with
the constitutional requirement to furnish them with a statement in writing
specifying om detail the grounds upon which the applicant was detained (refer
to Article 26 (1) (a) of the Zambian Constitution). The statement of grounds
furnished read:
‘That between 1 January 1971 and 11 December 1973, you conspired with other persons in Zambia to commit crimes and that you organised and managed the commission of serious crimes in Zambia which acts are prejudicial to the security of the Republic of Zambia.’
The
issue for the court was to apply the above statement to Article 26 (1) (a) to
determine firstly, what amounted to ‘specifying in detail’ the grounds upon
which the applicant was detained. Secondly, whether the statement furnished to
the applicant could be said to have ‘specified in detail.’ J.S., Bweupe, as he
was then, stated;
“…it seems to me
therefore, that in construction of the statute words should be taken in their
literal meaning which is not necessarily the dictionary sense but the sense in
which the words are used in common parlance. What then is the popular sense of
the phrase ‘specifying in detail?’… The popular sense of the phrase I my view
is therefore that the detaining authority must furnish sufficient information
which should enable the detainee to direct his mind to it when making his
representation.”
The
court directed that in the case, ‘specifying in detail’ must be taken as
understood in the literal and natural sense, it further held that the statement
furnished to the applicant did not specify in detail the grounds upon which
they were detained thus the application was granted and their detention was
found to be unlawful. It is clear that the court took the Literal approach in
deciding this case, as the phrase ‘specifying in detail’ were understood in
their ordinary and natural sense.
In Chileshe v Zambia Consolidated Copper Mines Limited [3]the appellant who held a superior position in the respondents company filed a complaint against them alleging that they were dismissed on the ground of discrimination. Their claim was based on section 108 of the industrial and labour relations Act4 which prohibits an employer from dismissing an employee based inter alia on ‘social status.’
The appellant claimed social status also meant ones rank or position
in employment. The court was invited to define what section 108 (1) meant by
‘social status,’ the Supreme Court held that 'social status’ refers to one’s standing
in the community. By extension, it follows that one’s type of
employment and position at a place of work are natural and ordinary meanings
attributable to one’s standing in the community.
CRITICISM
It
is argued that this approach discourages the use of common sense and be
enslaved by taking words in their literal sense even when the produce no
sensible outcome. This approach does not allow the courts to look at the
context or situation surrounding the case in order to aid their application of
the statute.
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An example of why this approach may be
fairly be criticised
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Imagine a statute reads: “poaching of
wild animals in this wildlife national park is prohibited.” What then if a
poacher kills a bunch of cows that strayed in the same park, should the fact
that a cow not being naturally a wild animal mean that the poacher did
nothing illegal under the said statute?
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A
strict application of the Literal Rule would prove to add more absurdity
2. CONTEXT RULE
This rule dictates that the courts may look at the natural and ordinary meaning of words but allow the context in which they were phrased to determine the manner in which they are to be applied in the case before them. In interpreting a statute, the context of its meaning must be considered, this is expressed in the Latin phrase Noscitur a sociis, which means “a word is known by the company it keeps.’’ This emphasises that a word or words in the statutes can only be discerned by understanding the contiguous factors, this may involve the courts looking at the whole sentence, entire section, whole statute in order to understand the whole purpose of enacting it, even looking at previous legislation that dealt with the same subject matter.
This rule takes on the
purposive approach of interpreting statutes which seeks to understand the
intention and purpose of enacting the statute so as to align the interpretation
of its provisions with the same intent and purpose.
In Ntombizine Mudenda v The Attorney General [4] the applicant was arrested and detained under the preservation of public security regulations, which prohibited the possession of diamonds and emeralds. The statement for their arrest read
‘that you on unknown dates but during the year 1978 and October 1979 in collusion with others yet unknown indulged in the illegal and illicit trafficking in precious stones like emeralds.’
Here
the applicant claimed that the phrase ‘like emeralds’ was too vague and not
specific because it may suggest that the applicant may have been in possession
of precious stones whose possession was not illegal.
The
Court as per Silungwe CJ held:
“according to the
dictionary meaning therefore, the word ‘like’ in the context in which it was
here used meant that the precious stones were the ‘same as,’ or ‘similar to’
emeralds… there are only two types of precious stones the trafficking in which
is illegal, namely diamonds and emeralds. It is therefore not misleading or
vague to use the phrase ‘like emeralds’ because it can only refer to emeralds
or diamonds…”
The
application was thereby thrown out. Essentially the court took cognizance of
the fact the several precious stones whose trafficking was not illegal but, the
phrase ‘like emeralds’ in the case was put to context and interpreted to mean
the precious stones the applicant was being detained for were illegal to be
trafficked, which could either have been emeralds themselves or diamonds.
CRITICISM
The
rule though desirable it may seem, if taken habitually and used without any
guided confides, allows the judiciary to assume the role of law making thereby
confiscating such responsibility from the legislature. Why this may be the case
is because, for one reason alone, context sometimes differ depending on who is
interpreting a situation, therefore, the context that the court may apply to a
statute may not be the exact context that the legislature intended.
3. THE
FRINGE MEANING RULE
This
rule is used when the judge is seeking to understand the general policy or
general intention the legislature had when enacting the statute. The court will
look at the core purpose that the statute intended to serve, at the same
time, this rule allows the court to add legal meaning to the statute. It must
be understood that even though words may have a specific meaning associated to
them, they may prove to be uncertain when applied to certain situations that
arise from subjective experiences.
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For instance
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Where a statute reads; “the government
shall have authority to obtain any building if it is shown to be in the
interest of the republic.’ Well, the common associated meaning to the word
‘building’ is that of a well-established construction used for business or
whatever public purpose. However, would the word ‘building’ also extend to a
temporal wooden hut, a basic tent, or even would it apply to residential
houses? such a cases would invite the court to understand what the
legislature intention was by using the word ‘building,’ i.e. whether the
meant only public establishments, private establishments though
non-residential, or any structure or erection whatsoever. Therefore, this
would ask the court to use fringe meaning rule in interpreting such statute.
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Therefore,
the fringe meaning rule allows the court to apply it’s reasoning in order to
clear an uncertainty or argument. Ultimately, this rule invites the court to
determine how a statute is to be applied, whether narrowing its meaning or
providing a broader meaning to its application, but this is done after
understanding what parliament intended to do in its efforts to advance
government policy. Indeed, this suggests that the court looks at the political
reason behind the statute.
In Attorney General v Steven Luguru[5], the respondent was a Tanzanian national employed in the Zambian civil service. After their request to buy the house they were staying in as a sitting tenant was rejected, they brought an action before the Lands Tribunal, which ordered the sale of the house to them within a specific period of time. On appeal a number of issue were raised including the interpretation of the preamble.
The
Supreme Court considered to interpret the preamble strictly and together with
the cabinet circular and interpretation of the Local Government and Housing and
the University of Zambia circulars on the sale of houses, and found that the
intention of Government was clear, which was to empower Zambian nationals who
were sitting tenants to purchase their houses. therefore, the decision of the
Tribunal was reversed.
Essentially,
the Supreme Court here invoked the fringe meaning by understanding the policy
behind the enactment of the statutes which is; finding the intention of the
legislature.
CRITICISM
This
rule may be justified in the sense that it aligns interpretations of the law
which helps its application, with the agenda of the government hence promoting
and advancing endeavours taken by government. However, it seems to be a paradox
because prioritizing this rule would mean that the judiciary would succumb to
political will, in the sense that where a statute carries a political agenda,
the court risks prioritizing the political aspects of the statute to the
detriment of the legality of its nature or legal implication it may hold.
4. THE MISCHIEF RULE
This rule is employed by the court when seeking to remedy a gap or pitfall that a statute was intended to cure but could not accurately do so. This rule ultimately invites the judge to confer their opinion on a statute, whether wrong or right however, the opinion inevitably becomes law. Additionally, this rule invites the court to consider the position of the law before the enactment of the statute, what problems or challenges needed to be resolved, how or to what extent the statute addressed the said problems or challenges.
On that basis,
where the law still does not adequately address certain aspects of the
challenge that needed to be resolved, the court then would interpret the
statute in order to extends its application to those issues not initially
remedied for.
In
the People
v Shamwana and Others[6], the accused were charged
with treason. Proving the case was dependent on Act no 35 of 1973. Prior to
this Act, the law provided that one could be convicted of treason unless there
are two witnesses to an overt act or two witnesses who each observed a separate
overt act of the same kind of treason. This was the law in England and Zambia.
Act No. 35 of 1973 changed the law in Zambia ensuring that there is no
requirement as to a specific number of witnesses to prove the offence of
treason. The offence could/can be proven like any other criminal offence.
The
court held;
“… in order properly to
interpret any statute it is necessary now as it was when Lord Coke reported
Haydon’s case to consider how the law stood when the statute to be construed
was passed, what the mischief was which the old law did not provide and the
remedy provided by the statutes to cure that mischief…”
It
went further to state:
“In interpreting an Act
of Parliament you are entitled, and in many cases bound to look
to the state of the law
at the date of the passing of the Act – not only the common law, but the law as
it then stood under the previous statutes in order properly to interpret the
statute in question…”
Essentially,
the court emphasized that the courts are given licence to interpret a statute
while keeping in mind the gap that the statue was intended to fill up. In this
case the court found Act No. 35 of 1973 was a law that was intended to deal with
culprits rallying against the republic, therefore, the statute eradicated the
requirement of needing 3 witnesses in order to properly achieve or conveniently
prove a case against individuals involved in treason.
CRITICISM
Confiding
in this rule may lead to more uncertainty and make the undesirable because it
is indeed impossible to predict. what if a gap
in the law is not apparent or rather is something of debate and opinion.
5. THE GOLDEN RULE
This
rule of interpretation allows the court to construe a statute in such a way as
to produce a reasonable result, even though this involves departing from the
prima facie meaning of the words. This rule seeks to eliminate absurdity contained
in a statute. What must be understood is that this rule is invoked where applying the ordinary meaning of the words of the statute would lead to an
absurdity.
In
Grey
v Pearson, [7]Lord
Wensleydale stated:
“… the grammatical and
ordinary sense of the words is to be adhered to, unless that would lead to some
absurdity, or some repugnance or inconsistency with the rest of the instrument,
in which case the grammatical and ordinary sense of the words may be modified,
so as to avoid that absurdity and inconsistency, but no farther.”
Here
Lord Wensleydale held that, firstly the courts must employ the literal rule of
interpretation, however, where using the rule would lead to an absurdity or
illogical conclusion, then the court must employ the golden rule; which
essentially seeks to add meaning or sense to the statute.
This
test was also employed in the case of the Attorney General and the Movement for
Multi-Party Democracy v Lewanika and Four Others (1994) SCZ 2.
CRITICISM
The
Golden Rule is unpredictable and lacks guidelines as it gives the Courts with
overwhelming discretion to determine when the literal would lead to absurdity, even when the Courts wishe to reach a sensible outcome, the lack of
proper guidelines in doing so may cause the Court to reach an outcome that does
make sense too.
The
other criticism of this rule is that judges can twist and alter the meaning of
the words and change law
6. EXPRESSIO UNIOS EXCLUSIO ALTERIUS
This Latin expression means “the expression of one thing means the exclusion of the other thing.” This essentially dictates that where a statute makes clear and express mention of a particular thing, then every other reference, even that closely related to the particular thing mentioned, is excluded and to that effect must not be considered in the statute's application. Put differently, when something is mentioned expressly in a statute it leads to the presumption that the things not mentioned are excluded.
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For instance
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Where a statute read; “the domestication
of Lions and Tigers is prohibited.” Applying this rules would mean that the
domestication of Cheaters, Leopards, Panthers is not prohibited, why? Because
the statutes clearly and expressly make reference to only Lions and Tigers
therefore excluding everything not mentioned.
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In
Tempest
v Kilner[8]
the Court had to rule whether the statute of frauds 1677 applied to the sale of
stocks and shares. The Act required contracts for the sale of ‘goods, ware and
merchandise’ to be evidence in writing.
The Court therefore, decided that stocks and shares were not covered by the Act
as the specific words ‘goods, wares and merchandise’ were not followed by
general words.
However,
it must be noted that this rule will not be applied in the event that the Act
mentions that the words listed are illustrative by the use of the word. This is
to say, where a statute uses words only to provide an example, it would mean
the interpretation of the said words must not be limited to the words used in
the example.
CRITICISM
This
rule may limit the court’s interpretation of a statute, this is because
dictates that the court must not look at other issues not mentioned in the
statute, that however, discourages the court to make needed extension or
development to the law. It must be mentioned that the legislature when enacting
the statute may not have contemplated other issues incidental to those
mentioned in the statute, therefore, it is only fair that the court should be
allowed to consider other issues that could reasonably be applicable to the
statute.
7. EJUSDEM GENERIS
This
rule is similar and acts as an extension of the principle Noscitur a Sociis.
This rule dictates that where general words follow a list of particular things,
the general words are restricted to matters of the same kind. Ejusdem Generis
means ‘of the same kind,’ therefore, put otherwise, where a statute makes
reference to certain matters for the purpose of general illustration, then the
statute shall be construed to only apply to matters closely associated to those
general illustrations.
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For instance
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Where a statute reads; “the government
shall introduce a toll fee for cars, trucks, vans, motorcycles, and other
motor vehicles”, as noted, the subject is on introducing a toll fee for the
various modes of transportation, cars, trucks, vans, motorcycles have been
used as general illustrations. The common feature shared is that they are all
land-based modes of transportation, therefore, this statute should not apply
to Air transportation like an aeroplane, water transportation like a ship.
But it shall apply to transportations ‘of the same kind’ as those given as
general illustrations.
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CRITICISM
The
application of this is very limited, as already have been observed, it stems
from the context rule thus, courts would rather use the context rule as its
application is more general and invites the court to explore more options.
CONCLUDING COMMENTARY
What
must be understood is that these rules are not applied distinctively or separately,
the Court may employ more one rule in deciding a case, indeed, one case have been decided by using for instance the Context rule and Ejusdem Generis (which are similar), or
the Fringe Meaning rule and the Golden rule. Furthermore, applying one rule may
produce different outcome from the other, this is to say, the outcome that may
be reached when the Courts employ the Literal may be different from that which
they may have reached if the Context rule was employed. In light of this
conflict, in Zambia, the Literal rule is always the rule that must be applied,
where the Literal rule seems not to provide a satisfying outcome then the Court
should look at the other rules.
[1] (1844)
11 Cl&Fin 85:
[2] 1976
ZR 139.
[3] (SCZ
Judgment No. 10 of 1996)
[4] (1979)
ZR 245. 5
[5] (2001) SCZ 20.
[6] (1979)
ZR 23. 3.
[7] [1857] 6 HL 61
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