INTRODUCTION

The utilitarianism theory propounds the principle of utility or the utility principle as a
measure of pleasure and pain. It is a principle that promotes pleasure and seeks to supresses
pain. Every action must be weighed against this principle to ascertain whether such action
produces more pleasure than pain. With the introduction of the Court of Appeal in the judicial
structure in Zambia, it is undoubtedly, possible that the utility theory was applied. To this
effect, this essay aims at discussing the application of the utility principle for the introduction
of the Court of Appeal in the judicial structure of Zambia following the enactment of the
Constitution of Zambia (Amendment) Act no.2 of 2016. To achieve this, the paper begins by
explaining the utilitarianism theory. It also discusses the disadvantages associated with access
to justice before the introduction of the Court of Appeal in the Zambian judicial structures
and the advantages upon introduction. Thereafter, it discusses the application of the utility
theory for the introduction of the Court of Appeal.

THE UTILITARIANISM THEORY OR UTILITY THEORY

The utilitarianism theory, utility theory or otherwise known as the greatest happiness
principle holds that that actions are right in proportion as they tend to promote happiness
while actions are wrong as they tend to produce the reverse of happiness. 1 From the forgoing,
happiness entail, pleasure and the absence of pain whereas unhappiness entail pain and
deprivation of pleasure. It further holds that pleasure and freedom from paid are the only
things desirable as ends.2

Jeremy Bentham is one of the proponents of the utility theory. He argued that the purpose of
law is to ensure the greatest happiness of the greatest number and that all mankind lives under
the empire of pleasure and pain.3 Thus, the index of goodness or badness is pleasure or pain.
As such everyone whether king or servant is regulated by the need to seek pleasure and avoid
pain. He further argued that the capacity of any given act to confer pleasure and avoid pain
becomes the measure of its goodness. 4 Accordingly, the test for goodness or badness should
be according to the calculus of pleasure and pain, and hence, every legal institution or law
should be tested with reference to the principle of utility. Benthan stated that lawmakers in
the process of enacting legislation should therefore follow this principle of utility in order to

1
John Stuart Mills, Utilitarianism (Canada, 2001) 10.
2
Ibid.
3
Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (1981) 9.
4
Ibid.

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determine whether or not a particular legislation should be passed. 5 That is for a particular
legislation to be passed it should be weighed against the principle of utility and if it produces
more happiness of the greatest number of people, such a legislation should be passed.

THE DISADVANTAGES BEFORE THE INTRODUCTION OF THE COURT OF

Before the introduction of the Court of Appeal in the judicial structure of Zambia, the
disadvantages were associated with the right to access to justice without delay. The
administration of justice without delay is one of the principles of judicial authority. 6 This
principle hinges on the right to access to justice. In the absence of the Court of Appeal in the
Zambian judicial structure, led to the high percentage of cases that were appealed to the
Supreme Court. This resulted in creating congestion and delaying unreasonably the finality of
judgements including the execution measures to give them the practical effect. 7 Thus,
creating backlog which is an indication of both a breakdown in the intended decision making
for on-going cases as well as an increase in the expected delay for cases filed in the future.8

The unreasonable delay of justice was illustrated in a number of cases. Miyanda v The High
Court9 a case where the applicant commenced an action to compel a judge to deliver a
judgement which had been pending for eight years. The applicant sought to do so by applying
for a writ of mandamus. The Supreme Court held that mandamus is not the appropriate
remedy against judges of the superior courts. Further, in the case of Miyanda v Chaila,10 a
case where the applicant took out suit against the judgement in question for the unreasonable
delay in the issuance of judgement. The High Court ruled that a judge could not be sued for
adjudicatory delay and that the insulation of judicial officers of lawsuits was indispensable to
judicial independence. The net effect of these judgements is therefore that no remedy against
delay in the delivery of judgements.

With regard to the workload of appealed cases in the Supreme Court, Bwalya v The People11
is illustrative. It is a case where the defendant had already served five years in prison by the
time the appeal reached the Supreme Court. In this case a retrial was not ordered due to the
5
Ibid.
6
The Constitution of Zambia (Amendment) Act No. 2 of 2016, Article 118.
7
Muna Ndulo, ‘ Judicial Reform, Constitutionalism and the Rule of Law in Zambia: Form a Justice System to a
Just System.’ 2(1) Social Science Journal (2013) 14.
8
Ibid.
9
(1984) ZMSC 7.
10
(1982) ZMHC 5.
11
(1980) ZMSC 2.

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defendant having served most of the potential sentence. Also in Makeko and Others v The
People12 where the court considered the option of increasing the sentence but chose not to
because of the delay that occurred before the appeals.

ADVANTAGES FOR THE INTRODUCTION OF THE COURT OF APPEAL IN THE

The speedy delivery of judgments not only reduces workload and backlog of cases in the
Supreme Court but also enhances efficient access to justice without delay. With the
introduction of the Court of Appeal in the Zambian judicial structure not only relieves the
Supreme Court from workload and backlog of cases but also aids in dispensing justice. In
Zambia, the Court of Appeal as determined by Articles 130 and 131 of the Constitution 13 and
the Court of Appeal Act14 has been conferred with the jurisdiction to hear appeals from the
High Court, other courts (except for matters under the exclusive jurisdiction of the
Constitutional Court) and quasi-judicial bodies except those of the local government election
tribunal.

In addition, Section 11 of the Court of Appeal Act15 provides for the delivery of judgments. It
thus states that a judgment of the court shall be delivered in a case of a criminal matters, in
open court immediately after the determination of the appeal or without undue delay at some
subsequent time of which notice shall be given to the parties and in the case of civil matters
judgement shall be delivered in such manner as the court may determine. 16 The effect of this
provision of the law is that it mandates the Court of Appeal to deliver judgements without
delay hence aiding in the delivery of justice. At the same time reducing the workload of cases
in the Supreme Court and increasing the individual`s access to justice.

THE APPLICATION OF THE UTILITY THEORY TO THE INTRODUCTION OF THE

The Court of Appeal is the superior court vested with appellant jurisdiction. 17 It sits in
between the Supreme Court and the High Court. All appeals from the High Court lie in the

12
(1979) ZMSC 5.
13
The Constitution of Zambia n(6).
14
The Court of Appeal Act No.6 of 2016, section 4.
15
Ibid.

16
The Court of Appeal n(13) section 11 b.
17
Article 120 of the Constitution of Zambia.

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Court of Appeal.18 The introduction of this court in the Zambian judicial structure has led to
the reduction of workload for the Supreme Court which is the final court of appeal. It has also
reduced congestion of cases in the Supreme Court. Further, the Court of Appeal has led to the
enhancement of the right to access to justice without delay. These benefits were not available
before its introduction in the Zambian judicial structure. As such individuals had been denied
of the right to access to justice as well as various rights being infringed. With the application
of the utility theory propounded by Jeremy Bentham that, the purpose of law is to ensure the
greatest happiness of the greatest number of people. It follows that the introduction of the
Court of Appeal in the Zambian judicial structure sought to remedy the injustices with regard
to the right to access to justice.

He further states that the capacity of any given act to confer pleasure and avoid pain becomes
the measure of its goodness.19 In respect to the introduction of the Court of Appeal, its
introduction brought more pleasure than pain. Additionally, it was Bentham`s contention that,
lawmakers in the process of enacting legislation should follow this principle of utility in order
to determine whether or not a particular legislation should be passed. 20 In introducing the
Court of Appeal in Zambia, legislators had applied the principle of utility in that its
introduction in the judicial structure brought pleasure and supressed pain through reducing
congestion, workload and backlog of cases in the Supreme Court. Hence, producing the
greatest happiness for the greatest number of people.

CONCLUSION

In conclusion, the utility theory had applied in the introduction of the Court of Appeal in the
Zambian judicial structure. This is because its introduction brought about the reduction of
congestion, workload and backlog of cases in the Supreme Court. It also enhanced the right
to access to justice. Thus, the Constitution sought to produce pleasure by avoiding pain. This
was achieved by introducing the Court of Appeal as the superior court with appellant
jurisdiction to hear appeals from the High Court among others.

REFERENCES
18
Section 131 of the Court of Appeal Act.
19
Jeremy Bentham (1981) n(3).
20
Ibid.

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BOOKS
Bentham Jeremy, An Introduction to the Principles of Morals and Legislation (1981)
Mills John Stuart, Utilitarianism (Canada, 2001)
JOURNAL ARTICLES
Ndulo Muna, ‘Judicial Reform, Constitutionalism and the Rule of Law in Zambia: Form a
Justice System to a Just System.’ 2(1) Social Science Journal (2013)
STATUTES
The Court of Appeal Act No.6 of 2016
The Constitution of Zambia (Amendment) Act No. 2 of 2016
CASES
Bwalya v The People (1980) ZMSC 2
Makeko and Others v The People (1979) ZMSC 5
Miyanda v Chaila (1982) ZMHC 5
Miyanda v The High Court (1984) ZMSC 7