Authored By: Faith Malama
University of Zambia
Introduction
Non discrimination is a fundamental principle in contemporary constitutional law. In Zambia, this principle is protected by Article 23 of the Constitution.[1] Although Article 23(1) prohibits laws that are discriminatory in wording or effect, its application in practice exposes significant shortcomings. The provision is narrowly framed, applying primarily in a vertical manner to public authorities and leaving private acts of discrimination largely unaddressed. Moreover, exceptions for personal and customary law create legal spaces where discriminatory practices persist. This article examines those constitutional constraints, focusing on Article 23’s limited reach and inequalities sustained by its exemptions for personal law.
The Vertical Limitation: Public Bodies vs Private Discrimination
A core limitation of Article 23 lies in its textual design. Constitutional rights are typically structured to protect individuals against the state, creating a vertical relationship between citizen and government. Article 23(2) entrenches this framework by proscribing discriminatory conduct only when committed by a person acting under the authority of any written law, a person performing the functions of a public office, or a public authority.[2] In effect, Article 23 functions as a constraint on public power, with no direct horizontal reach to regulate discrimination by private actors such as employers, landlords, or businesses. As a result, where a private party discriminates on grounds such as sex, race, or marital status, an aggrieved person cannot maintain a straightforward constitutional claim under Article 23 alone.[3]
This vertical limitation is underscored in the case of Longwe v Interconinental Hotels[4] where the petitioner was refused entry to a Hotel bar solely because she was a woman not accompanied by a man. The High Court held that this policy amounted to unlawful sex discrimination and ordered it to be scraped, affirming that such exclusion violated constitutional guarantees of equality and freedom of movement. However, in the case of Elizabeth Mwanza v Holiday Inn[5], two women were denied admission to the Holiday Inn on the basis that they were not in the company of men and although the facts closely mirrored those in Longwe, the court dismissed the petition. Crucially, the judge did not extend the reasoning in the Sarah Longwe case to impose a direct horizontal obligation on the private hotel under Article 23. This Mwanza v Holiday Inn line of cases demonstrates the courts reluctance to stretch Article 23 beyond its public law orientation, confirming that in practice, purely private discrimination remains largely beyond the immediate reach of a straightforward constitutional claim under Article 23 alone.
The Personal Law Exception: Institutionalized Inequality
The most significant weakness in Zambia’s equality framework is found in Article 23(4) which creates express exceptions to the general prohibition on discrimination by shielding from challenge any law that makes provision with respect to adoption, marriage, divorce, burial, the devolution of property on death and other matters of personal law as well as the application of customary law to particular races or tribes.[6] By classifying family and personal law as private matters under Article 23(4)(c), the Constitution places these domains outside the effective reach of Article 23(1) which requires that a law must not make any provision that is discriminatory in both its nature and its effect.[7]
By placing personal law and customary law beyond the reach of 23(1), the constitution establishes a dual system in which discriminatory rules can operate lawfully in the private and family sphere. Munalula observes that this exclusion renders women particularly vulnerable to discrimination in areas governed by personal law, notably divorce, maintenance, and inheritance as these women are the ones that are often subject to entrenched patriarchal norms in matters of personal law.[8] Consequently, the dual legal regime established by the Constitution permits discriminatory norms to persist within the private and family sphere, with a disproportionate adverse impact on women and children.
Customary Law and Judicial Hesitance
While Article 23 of the constitution generally prohibits discrimination, Article 23(4) carves out an exception on personal law which includes marriage and divorce under customary law. Within the shelter of Article 23(4), customary practices that deny women equal inheritance rights, restrict their capacity to own property, or subordinate their status within marriage remain formally valid. Zambian courts have repeatedly confronted the tension between constitutional human rights guarantees and discriminatory customary norms yet they are constrained by the clear wording of the personal law exception. This can be observed in the case of Mwiya v Mwiya[9] where a woman sought property settlements following the dissolution of her marriage which was constructed under Lozi customary law. In that case, the court dismissed her petition and claimed that under Lozi customary law a woman could only be awarded kitchen utensils and her personal belongings. This shows the inefficiency of this Article because in customary marriage setting the woman assumes a reproductive and homemaking role therefore denying her a share left her with no legal remedy.
Similarly, in Julius Sibanda v Flat Mooyo[10] the court was confronted with a Ndebele customary rule that upon the wife’s initiation of divorce she would be deprived of both custody of children and any share of matrimonial property. The court in that case reasoned that a custom that denies a biological mother custody of her children after divorce, particularly where it is grounded in chauvinism and personalizes her for exercising her right to seek dissolution is repugnant to the letter and spirit of the Bill of Rights. In applying the best interest of the child standard under the Children’s Code Act[11], the court rejected the proposition that payment of lobola automatically vests custody rights in the father, describing such an approach as an unconscionable commoditization of children. By insisting that customary rules on custody and property division conform to constitutional supremacy and equality norms, Sibanda demonstrates how the repugnancy principle can mitigate the discriminatory effects of personal law Article 23(4) otherwise insulates, while also exposing the limits of that protection where courts decline to apply the clause rigorously at first instance.
The legislative Patchwork and need for Constitutional Reform
Although Article 23 of the constitution establishes a general prohibition on discrimination, the personal and customary law exceptions contained in Article 23(4) create significant gaps in protection, particularly for women in the family sphere. In recognition of these deficiencies, the Zambian legislature has enacted a series of targeted statutes designed to mitigate discrimination where the constitutional framework proves inadequate. These legislative interventions present important, albeit incomplete, efforts to advance gender equality and protect vulnerable groups from systematic prejudice.
Among the most significant of these measures is the Gender Equity and Equality Act,[12] which seeks to promote gender balance across public and private institutions and to address structural discrimination that permeates both spheres. Complementing this is the Anti Gender based Violence Act[13] which establishes a comprehensive legal framework for preventing and responding to domestic abuse and other forms of gender based harm. In the employment context, the Employment Code Act[14] prohibits discriminatory practices in recruitment, promotion, and general workplace conditions, thereby extending protection to workers who might otherwise be excluded from the ambit of constitutional equality guarantees.
Notwithstanding their importance, these statutory instruments suffer from a fundamental limitation: they do not enjoy the supreme authority of constitutional provisions. Unlike the Bill of Rights, ordinary legislation is susceptible to amendment, repeal, or override by subsequent parliamentary enactments. More critically, any statute that directly contradicts the provisions of the constitution occupies a subordinate position in the hierarchy of laws and may be rendered ineffective to the extent of such inconsistency.[15] This structural weakness means that discriminatory customary or personal law rules can continue to operate lawfully, even where progressive legislation seeks to curtail them.
Therefore, for Zambia to achieve meaningful and durable equality, legislative reform must be accompanied by constitutional amendment that narrows or removes the Article 23(4) exceptions, thereby ensuring that all laws, including those governing personal and family matters are subject to non discrimination guarantee.
Conclusion
By concentrating primarily on state action Article 23 offers only a parcial guarantee of equality and leaves individuals exposed to discrimination in private and domestic spheres. At the same time, the express exclusion of personal and customary law under Article 23(4) entrenches structural inequality, permitting discriminatory norms to govern pivotal aspects of life including marriage, divorce, and inheritance. Achieving genuine equality before the law in Zambia therefore demands constitutional reform. The personal law exceptions in Article 23(4) should be narrowed or removed and aligned with international human rights standards, ensuring that appeals to tradition or privacy cannot legitimize discrimination.
BIBLIOGRAPHY
Table of Cases
Longwe v Intercontinental Hotels (1993) 4 LRC 221
Mwanza and Anor v Holiday Inn Garden Court Hotel ZMHC 2
Mwiya v Mwiya (1984) ZR 1
Table of Legislation
Anti- Gender Based Violence Act 2011
Children’s Code Act 2019
Gender Equity and Equality Act 2015
Secondary Sources
Cdamulira J, ‘Protect the Right to Freedom from Discrimination in Zambia: Understanding the Constitution and Legislative Grounds’ (2021) 18(2) African Human Rights Law Journal 435
Munalula M, ‘Women. Gender and the law: Cases and Materials’ (UNZA Press 2005)
[1] Constitution of Zambia (Amendment) Act 2016 art 23.
[2] Ibid.
[3] Jamil Ddamulira Mujuzi, ‘Protecting the right to freedom from discrimination in Zambia: Understanding the constitutional and legislative grounds’ (2019) 19 African Human Rights Law Journal 1.
[4] Longwe v Intercontinental Hotels [1992] ZMHC 106.
[5] Elizabeth Mwanza v Holiday Inn Hotel (1997) HP/2054.
[6] Constitution of Zambia, art 23(4).
[7] Constitution of Zambia, art 23(1).
[8] Margaret Munalula, ‘Women, Gender Discrimination and the Law: Cases and Materials’ (UNZA press 2005).
[9] Martha Mwiya v Alex Mwiya (1977) Z.R. 113 (H.C.).
[10] Julius Sibanda v Flat Mooyo (2019/HP/A026) [2024].
[11] Children Code act 2022, s 3.
[12] Gender Equity and Equality Act 2015.
[13] Anti Gender Based Violence Act 2011.
[14] Employment Code Act 2019.
[15] Constitution of Zambia, art 1.
