CHAPTER 34
LEGAL AID ACT

Arrangement of Sections

   Section

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

   3.   Scope of legal aid

PART IA
THE LEGAL AID BOARD

   3A.   Establishment of Board

   3B.   Composition of Board

   3C.   Functions of Board

PART II
LEGAL AID SECRETARIAT

   4.   Establishment of Secretariat and definition of its functions

   4A.   Director, Secretary and other staff

   5.   Right of audience of legal aid assistants

   6.   Legal practitioners

   7.   Legal aid committees

PART IIA
LEGAL AID BOARD

   7A.   Continuation of Legal Aid Fund Act

   7B.   Bank account

   7C.   Applications of moneys of Fund

PART III
LEGAL AID IN CRIMINAL CASES

   8.   Legal aid in subordinate courts

   9.   Legal aid in the High Court

   10.   Repealed

PART IV
LEGAL AID IN CIVIL CASES

   11.   Application for legal aid in civil cases

   12.   Powers of Director

   13.   Legal aid in civil actions where the State is a party

   13A.   Minister to specify proceedings for which legal aid may be granted in civil proceedings

PART V
LEGAL AID IN APPEALS

   14.   Applications for legal aid in appeals

   14A.   Application for legal aid in criminal appeals

   15.   Director may grant legal aid for appeals

   16.   Courts may direct the grant of legal aid for appeals

   16A.   Effect of legal aid certificate

   16B.   Remuneration of practitioner

   16C.   Payment of costs of representation

PART VI
FINANCIAL CONSIDERATOIONS OF LEGAL AID

   17.   Contributions towards legal aid

   18.   Ascertainment of means

   19.   Costs awarded to legally aided persons

   20.   Costs awarded against legally aided persons

   20A.   Register of practitioners

   20B.   Assignment to practitioner

   20C.   Registrar to issue certificate

PART VII
MISCELLANEOUS

   21.   Parties to submit to arbitration in certain cases

   22.   Termination of legal aid

   23.   Applications for legal aid on behalf of persons under disability

   24.   Administrator-General may be administrator ad litem in certain cases

   24A.   Person may refuse or dispense with legal aid

   24B.   Reference to Director

   24C.   Vesting of assets of Directorate of Legal Aid

   24D.   Registration of Property to be transferred by Government

   24E.   Legal Proceedings

   24F.   Staff of Directorate of Legal Aid

   25.   Regulations

   26.   Act to bind Republic

      FIRST SCHEDULE

AN ACT

to establish the Legal Aid Board and define its functions, to constitute the Secretariat of the Board, to establish the Legal Aid Fund, provide for the granting of legal aid in civil and criminal matters and causes to persons whose means are inadequate to enable them to engage practitioners to represent them; and to provide for matters connected with or incidental to the foregoing.

[Am by s 2 of Act 19 of 2005.]

[Sections 1-19 and 21-27-3rd July, 1967]

[Section 20-20th November, 1967]

Act 30 of 1967,

Act 34 of 1972,

Act 17 of 2000,

Act 19 of 2005.

PART I
PRELIMINARY

 

1.   Short title

   (1) This Act may be cited as the Legal Aid Act.

   (2) This act shall come into operation on such date as the Minister may, by statutory instrument, appoint.

 

2.   Interpretation

In this Act, unless the context otherwise requires—

“Board” means the Legal Aid Board established by section 3A;

[Subs by s 3 of Act 19 of 2005.]

“Chairperson” means the person appointed as the Chairperson of the Board under section 3B;

[Ins by s 3 of Act 19 of 2005.]

“committee” means a committee of the Board established under paragraph 5 of the Schedule;

“court” shall include any court or tribunal before which a practitioner may represent a client, but shall not include a local court established under the Local Courts Act;

“Director” means a person appointed as Director of the Board under section 4A;

[Subs by s 3 of Act 19 of 2005.]

“Directorate”…

[“Directorate” rep by s 3 of Act 19 of 2005.]

“Fund” means the Legal Aid Fund continued by section 7A;

[Subs by s 3 of Act 19 of 2005.]

“legal aid” has the meaning given to the expression in section 3;

“legal aid assistant” means a public officer appointed as a Legal Aid Assistant or Senior Legal Aid Assistant;

“legal aid committee” means a committee established in accordance with the provisions of section 7;

“legal aid counsel” means a public officer appointed as a Legal Aid Counsel, Assistant Senior Legal Aid Counsel or Senior Legal Aid Counsel;

“member” means a member of the Board appointed under section 3B;

[Ins by s 3 of Act 19 of 2005.]

“practitioner” shall have the meaning assigned to the word in the Legal Practitioners Act;

“Registrar” means the Registrar of the High Court;

[Ins by s 2 of Act 17 of 2000.]

“Secretary” means the Secretary of the Law Association of Zambia;

[Ins by s 2 of Act 17 of 2000.]

“Secretariat” means the Secretariat of the Board constituted under section 4.

[Ins by s 3 of Act 19 of 2005.]

“specified offence” means an offence of a class specified by the Minister by statutory order for the purposes of section 9; and

“subordinate court” means a court constituted under the subordinate courts Act.

[S 2 am by Act 34 of 1972.]

 

3.   Scope of legal aid

   (1) Legal aid shall consist, on the terms provided for in this Act, of—

      (a)   the assistance of a practitioner including all such assistance as is usually given by a practitioner in the steps preliminary or incidental to any proceedings or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings; and

      (b)   representation in any court.

   (2) Save as otherwise provided in or under this Act—

      (a)   the fact that assistance or representation is by way of legal aid shall not affect the relationship between or the rights of practitioner and client or any privilege arising out of such relationship; and

      (b)   the rights conferred by this Act on a legally aided person shall not affect the rights or liabilities of any other parties to any proceedings or the principles on which the discretion of any court is normally exercised.

PART IA
THE LEGAL AID BOARD

 

3A.   Establishment of Board

   (1) There is hereby established the Legal Aid Board which shall be a body corporate with perpetual succession and a common seal, capable of suing and of being sued in its corporate name, and with powers, subject to the provisions of this Act, to do all such acts and things as a body corporate may by law do or perform.

   (2) The provisions of the Schedule shall apply to the Board.

[S 3A ins by s 4 of Act 19 of 2005.]

 

3B.   Composition of Board

   (1) The Board shall consist of the following part-time members appointed by the Minister—

      (a)   a person qualified to be a judge of the High Court who shall be the Chairperson;

      (b)   the Permanent Secretary in the Ministry responsible for justice;

      (c)   a representative of the Law Association of Zambia;

      (d)   a representative of the Ministry responsible for home affairs;

      (e)   a representative of the Ministry responsible for finance and national planning;

      (f)   a representative of the Ministry responsible for community development and social welfare;

      (g)   a representative of the Ministry responsible for labour;

      (h)   a representative of a non-governmental organization active in the promotion of human rights;

      (i)   a representative of the Ministry responsible for sport, youth and child development; and

      (j)   one other person.

   (2) The members referred to in sub-section (1) shall be nominated by their respective organisations or ministries.

   (3) The person referred to in paragraph (j) of sub-section (1) shall be a person who has expertise in the administration of justice or law.

   (4) The Vice-Chairperson shall be elected by the members of the Board from among their number.

   (5) A person shall not be appointed as a member of the Board if the person—

      (a)   is an undischarged bankrupt;

      (b)   has been convicted of an offence involving fraud or dishonesty; or

      (c)   has been convicted of an offence under any other written law and sentenced to a term of imprisonment of not less than six months, without the option of a fine.

[S 3B ins by s 4 of Act 19 of 2005.]

 

3C.   Functions of Board

   (1) The functions of the Board shall be to—

      (a)   administer and manage the Legal Aid Fund;

      (b)   facilitate the representation of persons granted legal aid under this Act;

      (c)   assign practitioners to persons granted legal aid under this Act;

      (d)   advise the Minister on policies relating to the provision of legal aid and implement Government policies relating to the same; and

      (e)   undertake such other activities relating to the provision of legal aid and which are conducive or incidental to the performance of its functions under this Act.

   (2) Notwithstanding sub-section (1), the Board may, by direction in writing and subject to such conditions as it considers fit, delegate to any member, committee or the Director any of its functions under this Act.

[S 3C ins by s 4 of Act 19 of 2005.]

PART II
LEGAL AID SECRETARIAT

[Am by s 5 of Act 19 of 2005.]

 

4.   Establishment of Secretariat and definition of its functions

   (1) There is hereby established the Secretariat of the Board which shall have the functions of implementing the decisions of the Board.

   (2) Without prejudice to the generality of sub-section (1) the Secretariat shall—

      (a)   undertake the representation of persons granted legal aid under this Act;

      (b)   be responsible for the day to day administration of the Board;

      (c)   subject to the general or special direction of the Board, manage and disburse funds from the Fund for the purposes of this Act; and

      (d)   perform such other functions as may be assigned to it by the Board.

   (3) Subject to section 13, where the Board or the court grants legal aid to a person under this Act, the Director shall, unless the Director allocates a matter in question to a practitioner under section 6 provide that person with such of the services included in legal aid as the person may require.

[S 4 subs by s 6 of Act 19 of 2005.]

 

4A.   Director, Secretary and other staff

   (1) The Board shall, with the approval of the Minister, appoint a Director on such terms and conditions as it may, with the approval of the Minister, determine, who shall be the Chief Executive Officer of the Board and who shall, subject to the control of the Board, be responsible for the day to day administration of the Board.

   (2) The Director shall attend the meetings of the Board and any committee of the Board and may address such meetings, but shall have no vote.

   (3) The Director shall be the Secretary to the Board.

   (4) The Board may appoint a Deputy Director who shall—

      (a)   assist the Director in the performance of the Director’s duties under this Act; or

      (b)   discharge the functions of the Director if the Director is absent or is for any other reason unable to discharge the functions of the Director’s office.

   (5) The Board may, on such terms and conditions as it may with the approval of the Minister determine, appoint such legal aid counsel, legal aid assistants and other staff for the Board as it considers necessary for the performance of its functions under this Act.

[S 4A ins by s 6 of Act 19 of 2005.]

 

5.   Right of audience of legal aid assistants

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   (1) Notwithstanding that he is not a practitioner, every legal aid and assistant shall, in any matter in which any services included in legal aid one provide by the Director, be entitled to appear for and represent a legally aided person-

      (a)   in my criminal proceedings before a subordinate court;

      (b)   in any civil proceedings before a subordinate court;

      (c)   in any proceedings in chambers; and

      (d)   for the purpose of making any application in proceedings before a subordinate court, where the Director is representing a legally aided person and is unable to attend.

   (2) The right of audience conformed on legal aid assistants by this section is an addition to and not in derigation of any other written law relating to the right of audience of a person who is not a practitioner.

[S5 am by Act 34 of 1972.]

 

6.   Legal practitioners

   (1) The Director may, by agreement with any practitioner who is registered under section 20A, retain the services of that practitioner for the purpose of providing legal aid under this Act and every such agreement shall be upon and shall set out such conditions, including the remuneration of the practitioner, as the Board may in each case approve.

[S 6(1) am by s 5(a) of Act 17 of 2000.]

   (2) The Director may at any time in his discretion dispense with the services of any practitioner to whom any matter in respect of which legal aid has been granted has been allocated, except where legal aid has been granted under section 13.

[S 6(2) rep by s 5(b); S 6(3) renumbered as s 6(2) by s 5(c) of Act 17 of 2000.]

 

7.   Legal aid committees

   (1) There is hereby established for each District a legal aid committee which shall perform such functions and exercise such powers in relation to legal aid in civil matters and causes as are imposed or conferred on the committee by or under this Act.

   (2) The Minister shall appoint the members of each legal aid committee.

   (3) A member of a legal aid committee who is not a public officer shall be paid such allowance as may be prescribed.

   (4) Subject to this Act and any regulations made thereunder, each legal aid committee shall regulate its own practice and procedure.

PART II A
LEGAL AID FUND ACT

 

7A.   Continuation of Legal Aid Fund

   (1) There is hereby continued the Legal Aid Fund established under section 7A of the Legal Aid (Amendment) Act, 2000.

   (2) The Fund shall consist of such monies as—

      (a)   may be appropriated by the Parliament for the purposes of the Fund;

      (b)   may be paid to the Fund by way of fees, contributions, costs, loans, grants or donations; and

      (c)   vest in or accrue to the Fund.

   (3) The Board may—

      (a)   accept moneys by way of grants or donations from any source in Zambia and subject to the approval of the Minister from any source outside Zambia; and

      (b)   accept moneys by way of contributions from persons granted legal aid under this Act.

[S7A subs by s7 of Act 19 of 2005.]

 

7B.   Bank account

The Board shall maintain a separate bank account into which shall be paid all moneys payable to the Fund.

[S 7B subs by s 7 of Act 19 of 2005.]

 

7C.   Applications of moneys of Fund

The Board shall apply the moneys of the Fund for—

      (a)   purposes of securing the representation of persons granted legal aid in accordance with this Act;

      (b)   the remuneration of practitioners for services provided in accordance with this Act; and

      (c)   such expenses incurred by a practitioner while representing a legally aided person and are properly attributable to time spent or work done by the practitioner in representing the person except for a practitioner providing legal aid under Practitioners Act:

Provided that the remuneration to be paid to a Legal practitioner under this Act shall be as determined by the Board, with the approval of the Minister.

[S 7C subs by s 7 of Act 19 of 2005.]

PART III
LEGAL AID IN CRIMINAL CASES

 

8.   Legal Aid in subordinate courts

   (1) A person charged with an offence before a subordinate court may apply to the court for legal aid and if the court considers that—

      (a)   the accused has insufficient means to enable the accused to engage a practitioner to represent the accused; and

      (b)   having regard to all the circumstances of the case, it is desirable in the interests of justice that the accused should be represented by a practitioner; the court may grant a legal aid certificate in the prescribed form.

   (2) Where a Subordinate court refuses to grant a legal aid certificate on an application made under sub-section (1), the court shall—

      (a)   record, in writing, the reasons for such refusal; and

      (b)   inform the accused of the accused’s right to appeal to the High Court.

   (3) Where a subordinate court refuses to grant a legal aid certificate on an application made under sub-section (1), the accused may appeal to the High Court.

   (4) Notwithstanding the provisions of sub-section (1), where—

      (a)   a person is—

      (i)   charged with a specified offence; or

      (ii)   charged with an offence other than a specified offence and the court before which the person appears considers that, having regard to all the circumstances of the case, if it is desirable in the interests of justice that the person should have legal aid;

      (b)   the case is not to be the subject of a preliminary inquiry; and

      (c)   any court before which the person appears considers that the person has insufficient means to enable that person to engage practitioner to represent that person; the court shall, whether or not an application has been made under sub-section (1), issue a legal aid certificate in the prescribed form.

   (5) If during a preliminary inquiry held under the Criminal Procedure Code the court considers that—

      (a)   having regard to all circumstances of the case it is desirable in the interests of justice that the accused should be represented by a practitioner at that inquiry; and

      (b)   the accused has sufficient means to enable the accused to engage a practitioner to represent the accused; the court may grant a legal aid certificate in the prescribed form.

   (6) The court shall at the time of issuing a legal aid certificate under this section cause a copy of the legal aid certificate to be transmitted to the Director.

   (7) Upon receipt of a legal aid certificate issued under this section the Director shall, in consultation with the secretary, and subject to section 20 A, assign a practitioner to the person named in the certificate for purposes of the criminal proceedings to which the certificate relates.

[S 8 subs by s 7 of Act 17 of 2000.]

 

9.   Legal aid in the High Court

   (1) Whenever any court commits a person for trial before the High Court and the court considers that the accused has insufficient means to enable him to engage a practitioner to represent him, the committing court shall issue a legal aid certificate.

   (2) If an accused person before the High Court is not represented by a practitioner and the court considers that there is insufficient reason why the accused should not be granted legal aid, the court may issue a legal aid certificate.

   (3) The High Court may, in an appeal referred to in sub-section (3) of section 8-

      (a)   set aside the decision of a subordinate court refusing the application for legal aid if it is satisfied that grounds exist which qualify or entitle the accused to be granted legal aid and may issue a legal aid certificate in the prescribed form; or

      (b)   dismiss the appeal.

   (4) Where the court dimisses an appeal under sub-section (3), the court shall—

      (a)   record, in writing, the reasons, for such dismissal; and

      (b)   inform the accused of the accused’s right to appeal to the Supreme Court.

   (5) Where court dismisses an appeal by the accused against the refusal of a subordinate court to grant legal aid under sub-section (3), the accused may appeal to the Supreme Court.

   (6) The High Court shall at the time of issuing a legal aid certificate under this section cause a copy of the legal aid certificate to be transmitted to the Director.

   (7) Upon receipt of a legal aid certificate issued under this section the Director shall, in consultation with the secretary, and subject to section 20 A, assign a practitioner to the person named in the certificate for purposes of the criminal proceedings to which the certificate relates.

[S 9 subs by s 7 of Act 17 of 2000.]

 

10.   …

[Rep by s 8 of Act 17 of 2000.]

PART IV
LEGAL AID IN CIVIL CASES

 

11.   Application for legal aid in civil cases

Application for legal aid to be granted in civil proceedings for purposes of which legal aid may be granted under this Part may be made either to the Director or to a legal aid committee and, in the case where a legal aid committee considers an applicant to be eligible for legal aid under section12, it shall recommend to the Director that legal aid be granted accordingly.

[S 11 am by s 9 of Act 17 of 2000.]

 

12.   Powers of Director

   (1) Subject to sub-section (2), the Director may grant legal aid to any applicant who in his opinion—

      (a)   is in need of or would benefit from the services of a practitioner in any civil case or matter affecting him; and

      (b)   has insufficient means to obtain such services.

   (2) Notwithstanding the provisions of sub-section (1), the Director shall not grant legal aid for the purpose of proceedings in any court unless he is satisfied that—

      (a)   an applicant has reasonable grounds for taking, defending or being a party to these proceedings; and

      (b)   it is in the interests of justice that the applicant should be represented in these proceedings.

   (3) The Director may of his own motion invite any person to apply for legal aid if it appears to the Director that such person may—

      (a)   be eligible for legal aid under this section; and

      (b)   be ignorant of his right to apply for legal aid.

 

13.   Legal aid in civil actions where the State is a party

   (1) A court may at any time issue a special aid certificate to any person who is a party in any civil proceedings, whether at first instance or at appeal, in which the State is also a party if the court considers that—

      (a)   the person satisfies the conditions under which legal aid may be granted to him under this Act; and

      (b)   it is in the interests of justice that the person should be represented by a practitioner other than the Director.

   (2) The powers of a court under sub-section (1) shall be exercisable whether or not legal aid has been applied for or granted under any other provision of this Act.

   (3) In granting a special aid certificate under this section, the court may specify one or more practitioners and the Director shall thereupon allocate the representation of the person concerned to the practitioner or practitioners so specified who shall represent that person to the exclusion of any other practitioner.

   (4) Where a special aid certificate has been granted under this section, the court may order the legally aided person to contribute to the cost of the legal aid afforded to him to such extent as seems to the court to be just and reasonable having regard to that person’s means.

 

13A.   Minister to specify proceedings for which legal aid may be granted in civil proceedings

The Minister may, after consultation with the Chief Justice and the Board, by statutory instrument, specify the categories of civil proceedings for the purposes of which legal aid may be granted under this Part.

[S 13A ins by s 10 of Act 17 of 2000.]

PART V
LEGAL AID IN APPEALS

 

14.   Applications for legal aid in appeals

Application for legal aid may be made either to the Director or to a legal aid committee by any person who—

      (a)   intends to appeal against any final judgment or order of a court in any civil cause or matter; or

[S 14(a) rep by s 11(a); s 14(c) renumbered as s 14(a) by s 11(b) of Act 17 of 2000.]

      (b)   becomes a respondent in an appeal in a civil cause or matter;

[S 14(b) rep by s 11(a); s 14(c) renumbered as s 14(d) by s 11(b) of Act 17 of 2000.]

and in the case where application is made to a legal aid committee, the committee shall, if it considers the applicant eligible to be granted legal aid under this section, recommend to the Director that legal aid be granted accordingly.

 

14A.   Application for legal aid in criminal appeals

   (1) A person who has been convicted of, or sentenced for, an offence by a subordinate court or the High Court and intends to appeal against such conviction or sentence or against any judgement or order affecting that person which was made in any criminal cause or matter may apply for legal aid to the court that convicted or sentenced that person.

   (2) A person who becomes a respondent in any appeal in a criminal cause or matter before the High Court or the Supreme Court may apply for legal aid to the High Court or the Supreme Court as the case may be.

   (3) Where an application for legal aid is made under sub-section (1) or (2) and the court considers that—

      (a)   the applicant has insufficient means to enable the applicant to obtain the services of a practitioner to represent the applicant in the appeal;

      (b)   the applicant has reasonable grounds for instituting, defending or being a party to the appeal; and

      (c)   it is in the interest of justice that the applicant should be represented in the appeal;

the court may issue a legal aid certificate in the prescribed form.

   (4) The court shall at the time of issuing a legal aid certificate under this section cause a copy of the legal aid certificate to be transmitted to the Director.

   (5) Upon receipt of a legal aid certificate issued under this section the Director shall, in consultation with the Secretary, and subject to section 20A, assign a practitioner to the person named in the certificate for purposes of the criminal proceedings to which the certificate relates.

[S 14A ins by s 12 of Act 17 of 2000.]

 

15.   Director may grant legal aid for appeals

The Director may grant legal aid to an applicant under section 14 if he satisfied that—

      (a)   the applicant has insufficient means to enable him to obtain the services of a practitioner to represent him in the appeal to which the application relates;

      (b)   the applicant has reasonable grounds for instituting, defending or being a party to the appeal; and

      (c)   it is in the interests of justice that the applicant should be represented in the appeal.

 

16.   Courts may direct the grant of legal aid for appeals

Where, in any appeal before the High Court or the Supreme Court, any party to the appeal is unrepresented and the court considers that a point of law of public importance is likely to arise in the appeal, the court may issue a legal aid certificate to that party for the purposes of the appeal.

[S 16 am by s 13 of Act 17 of 2000.]

 

16A.   Effect of legal aid certificate

Subject to the other provisions of this Act, a person in respect of whom a legal aid certificate has been granted shall be entitled to legal aid in the proceedings to which the legal aid certificate relates and to have a practitioner assigned to represent the person.

[S 16A ins by s 14 of Act 17 of 2000.]

 

16B.   Remuneration of practitioner

A practitioner assigned to represent a person who has been granted legal aid under this Act shall receives such remuneration as the Minister may, in consultation with the Board, by statutory instrument prescribe.

[S 16A ins by s 14 of Act 17 of 2000.]

 

16C.   Payment of costs of representation

   (1) Subject to other provisions of this Act, where a legal aid certificate has been granted to any person, the costs of representing that person shall be paid by the Board out of the Fund.

   (2) Subject to section 16B, costs of representing any person under this Act shall include sums on account of the fees payable to a Practitioner assigned to represent that person and disbursements reasonably incurred by that Practitioner in connection with the representation of that person.

   (3) The costs required by this section to be paid in respect of a person granted legal aid shall not include any sum in respect of allowances to witnesses attending to give evidence in the proceedings for the purposes of which legal aid has been granted to any person in any case where such allowances are payable under any other law.

[S 16C ins by s 14 of Act 17 of 2000.]

PART VI
FINANCIAL CONSIDERATIONS OF LEGAL AID

 

17.   Contributions towards legal aid

   (1) Subject to sub-section (2), the Director may, in granting legal aid to any person under this Act, require that person to contribute to the cost of that legal aid to an extent which seems to the Director to be just and reasonable having regard to that person’s means.

   (2) No contribution made under sub-section (1) shall exceed the appropriate sum calculated in the manner prescribed for this purpose:

Provided that different methods of calculating such sum may be prescribed for criminal and civil matters.

   (3) Any sum remaining unpaid on account of the contribution required to be made under sub-section (1) may be recovered as a civil debt as if the sum had been adjudged to be payable to the Republic as such by an order of a subordinate court of the first class.

   (4) Where damages, costs or any property is recovered for a legally aided person, the costs incurred by the Director on behalf of the legally aided person reduced by any contribution made by such person under sub-section (1) shall be the first charge in favour of the Republic upon the sum representing damages, costs or the property so recovered.

   (5) Where the court or the Director grants legal aid under this Act and in connection with the grant the Director makes a contribution order under sub-section (1) for which any such sum is required to be paid on making of the order, the Director may direct that the grant of legal aid shall not take effect until that sum is paid.

[S 17(5) ins by s 15 of Act 17 of 2000.]

   (6) Where a legally aided person fails to pay any relevant contribution under this section when it is due, the Director may, subject to sub-section (7), revoke the grant of legal aid.

[S 17(6) ins by s 15 of Act 17 of 2000.]

   (7) The Director shall not revoke a grant of legal aid under sub-section (6) unless, after affording the legally aided person an opportunity of making representations the Director is satisfied—

      (a)   that the person was able to pay the contribution when it was due; and

      (b)   that the person is able to pay the whole or part of it but has failed or refused to do so.

[S 17(7) ins by s 15 of Act 17 of 2000.]

   (8) In sub-section (6) “relevant contributions” in relation to a legally aided person, means the equivalent of any sum—

      (a)   which that person is required to pay by a contribution order made in connection with the grant to that person of legal aid under sections 8, 9, and 14 A; and

      (b)   which falls due after the making of the order and before the conclusion of the proceedings for the purposes of which that person has been granted such legal aid.

[S 17(8) ins by s 15 of Act 17 of 2000.]

 

18.   Ascertainment of means

   (1) In ascertaining the means of any person for the purpose of this Act, that person’s income and his personal and real property shall be taken into account:

Provided that no account shall be taken of his dwelling-house, his household furniture or the tools or implements of his trade.

   (2) The subject-matter of any dispute in relation to which legal aid is granted shall not be taken into account in assessing a person’s means.

   (3) In assessing a person’s means, such of his commitments as may be prescribed shall be deducted from the resources which would otherwise be his means.

 

19.   Costs awarded to legally aided persons

   (1) Where a court in respect of any proceedings before it awards costs to a legally aided person, the costs should be paid to the Director and only the Director shall be capable of giving good discharge for costs so payable.

   (2) For the purpose of receiving any costs payable to him in pursuance of sub-section (1), the Director may take all such steps and pursue all such remedies as could have been taken or pursued by the legally aided person to whom costs were awarded and the costs of taking such steps or pursuing such remedies may be recovered and received by the Director.

   (3) Costs paid to the Director in pursuance of this section shall be paid into and shall form part of the general revenues of the Republic:

Provided that a legally aided person may be paid out of the costs paid to the Director the amount, or such portion of the amount as the Director considers just and equitable, of any contribution made by him under section 17.

   (4) Subject to this section, the costs awarded by a court to a legally aided person shall be the costs which would have been payable if the services performed under legal aid had been performed by a practitioner in private practice on the instruction of a client without benefit of legal aid, and such costs shall be taxed accordingly.

 

20.   Costs awarded against legally aided persons

   (1) Where any court awards costs against a legally aided person, those costs shall not, except where the court considers that there was no sufficient cause for that person to institute or defend the proceedings, exceed the contribution which that person was required to make or which the court considers he could reasonably have been required to make under section 17, whichever is the greater.

   (2) Costs awarded by a court against a legally aided person shall be paid out of moneys provided for the purpose by Parliament.

 

20A.   Register of practitioners

   (1) A practitioner who desires to be registered for purposes of providing legal representation under this Act shall notify the Director of that effect.

   (2) The Director shall keep a register of practitioners who, in addition to providing legal representation for purposes of section 36 of the Legal Practitioners Act, are willing to provide legal representation to persons granted legal aid under this Act.

   (3) A practitioner who desires to have his name removed from the registry may notify the Director to that effect and the Director shall remove the name of such practitioner:

Provided that a judge may for good cause order the removal of the name of a practitioner from the registry.

[S 20A ins by s 16 of Act 17 of 2000.]

 

20B.   Assignment to practitioner

   (1) Where a court grants a legal aid certificate under this Act, the court shall communicate with the Director requesting that a practitioner be assigned to the person named in the legal aid certificate.

   (2) Upon receiving the communication made under sub-section (1), the Director shall, in consultation with the Secretary, assign a practitioners, for the purpose of providing representation, from the register maintained under section 20A and shall notify the court and the practitioner of such assignment.

   (3) A practitioner upon receiving notice of the assignment from the Director shall undertake the representation of the person to whom the legal aid certificate has been granted.

[S 20B ins by s 16 of Act 17 of 2000.]

 

20C.   Registrar to issue certificate

   (1) The Registrar shall issue a certificate to a practitioner who, for purposes of section 36 of the Legal Practitioners Act, has undertaken the representation, in not less than two causes, of persons granted legal aid under this Act.

   (2) The Registrar may, where satisfied that considerable progress has been made on the causes undertaken by a practitioner for purposes of section 36 of the Legal Practitioner’s Act, issue a certificate to a practitioner, notwithstanding that the causes undertaken by the practitioner have not been concluded.

[S 20C ins by s 16 of Act 17 of 2000.]

PART VII
MISCELLANEOUS

 

21.   Parties to submit to arbitration in certain cases

Where in any proceedings or contemplated proceedings, all the parties thereto apply for legal aid under this Act and the Director considers that the dispute is of a nature which could properly be the subject of arbitration, the Director may, as a condition of the granting of legal aid, require the parties to submit the dispute to arbitration.

 

22.   Termination of legal aid

The Director may, at any time for any reason which he considers to be sufficient, terminate legal aid granted under this Act in any civil cause or matter:

Provided that, in the case of legal aid granted under section 13, he shall do so only with the leave of the court.

 

23.   Applications for legal aid on behalf of persons under disability

For the purpose of the granting of legal aid under this Act, an application for legal aid which is properly made by any person on behalf of any other person shall be deemed to have been made by that other person.

 

24.   Administrator-General may be administrator ad litem in certain cases

   (1) Where legal aid has been granted under any of the provisions of this Act for the purpose of bringing or defending proceedings for the benefit of the estate of a deceased person or for the purpose of bringing proceedings under the Fatal Accidents Acts, 1846 to 1908, of the Parliament of the United Kingdom for the benefit of any dependant of a deceased person, and where it appears to the Director that there is no person able and willing to take probate or letters of administration, as the case may be, or to be appointed administrator under the provisions of section 36 of the Local Courts Act, then he may request the Administrator- General to apply to the court for a grant of administration for the limited purposes of bringing or defending such proceedings and, upon such application being made, it shall be lawful for the court in its discretion to appoint the Administrator-General to be an administrator for such limited purpose.

   (2) The provisions of sub-section (1) shall not be limited by the provisions of section 32 of the Administrator-General’s Act.

   (3) Nothing in this section shall be deemed—

      (a)   to limit the power of the Administrator-General to apply for a grant of probate or general or other letters of administration under any other written law; or

      (b)   to render the Administrator-General personally liable in any way for any act done by him in pursuance of his duties as an administrator appointed under this section.

 

24A.   Person may refuse or dispense with legal aid

   (1) Notwithstanding anything to the contrary contained in this Act—

      (a)   an accused person may (should he so decide) refuse legal aid which would otherwise be granted to him in furtherance of a legal aid certificate issued or to be issued under Part III;

      (b)   a court may, on the application of a legally aided person—

      (i)   cancel any legal aid certificate which has been issued in respect of that person;

      (ii)   cancel any recommendation made under sub-section (2) of section 9;

      (iii)   permit him to conduct his own case or by a practitioner of his choice without legal representation which has been arranged by the Director.

   (2) Where an accused person refuses legal aid or makes application under paragraph (b) of sub-section (1), the court shall record reasons put forward by the accused person for the refusal or the application, as the case may be.

   (3) Where in any proceedings commenced before a court an accused person has refused legal aid or the court has cancelled a legal aid certificate or a recommendation under paragraph (b) of sub-section (1), the court shall continue with and conclude such proceedings without the legal aid.

   (4) The cancellation of a legal aid certificate or the recommendation under paragraph (b) of sub-section (1) shall not affect the right of the Director to require an accused person to contribute to the cost of such legal aid as may have been provided before the cancellation.

[S 24A am by Act 34 of 1972.]

 

24B.   Reference to director

On or after the appointed date, reference in any written law or any other legal document to the Director of Legal Aid shall be read and construed as reference to the Director appointed under section 4A of this Act.

[S 20B ins by s 8 of Act 19 of 2005.]

 

24C.   Vesting of assets of Directorate of Legal Aid

   (1) On or after the appointed date, there shall be transferred to, and vest in, or subsist against, the Board by virtue of this Act and without further assurance—

      (a)   the affairs of the Directorate of Legal Aid and

      (b)   subject to this Act, all property, rights and obligations which immediately before the appointed date were the property, rights and obligations of the Directorate of Legal Aid.

   (2) Except as provided in this Act, every deed, bond and agreement (other than an agreement for personal service) to which the Government was a party immediately before the commencement of this Act in respect of the Directorate of Legal Aid, whether in writing or not, and whether or not of such a nature that rights, liabilities and obligations thereunder could be assigned, shall, unless its subject-matter or terms make it impossible that it should have effect as modified in the manner provided by this sub-section, have effect as from the date of the assignment thereof, as if—

      (a)   the Board had been a party thereto;

      (b)   for any reference to the Government there were substituted, as respects anything falling to be done on or after the appointed date, a reference to the Board; and

      (c)   for any reference to any officer of the Directorate of Legal Aid not being a party thereto and beneficially interested therein there substituted, as respects anything falling to be done on or after the commencement of this Act, reference to such officer of the Board as the Board shall designate.

   (3) Subject to the provisions of sub-section (2), documents, other than those referred to therein, which refer specifically or generally to the Directorate of Legal Aid shall be construed in accordance with sub-section (2) as far as applicable.

[S 20C ins by s 8 of Act 19 of 2005.]

 

24D.   Registration of property to be transferred by Government

   (1) Where under this Act, any property, rights, liabilities and obligations of the Government through the Directorate of Legal Aid are deemed transferred to the Board in respect of which transfer a written law provides for registration, the Board shall make an application in writing to the appropriate authority for registration of the transfer.

   (2) The registration authority referred to in sub-section (1) shall make such entries in the appropriate register as shall give effect to such transfer and, where applicable, issue to the transferee concerned a certificate of title in respect of the property or make necessary amendments to the register, as the case may be, and shall make endorsement on the deeds relating to the title, right or obligation concerned, and no registration fees, stamp duty or other duties shall be payable in respect thereof.

[S 20D ins by s 8 of Act 19 of 2005.]

 

24E.   Legal Proceedings

   (1) Without prejudice to the other provisions of this Act, where any right, liability or obligation vests in the Board by virtue of this Act, the Board and all other persons shall, as from the commencement of this Act, have the same rights, powers and remedies (and in particular the same rights as to the instituting or defending of legal proceedings or the making or resisting of applications to any authority) for ascertaining, perfecting that right, liability or obligation as they would have had if it had at all times been a right, liability or obligation of the Board.

   (2) Any legal proceedings or application of any authority pending immediately before the commencement of this Act by or against the Government in respect of the Directorate of Legal Aid may be continued by or against the Board.

[S 20E ins by s 8 of Act 19 of 2005.]

 

24F.   Staff of Directorate of Legal Aid

   (1) On or after the appointed date, the Board shall on such terms and conditions as it may, with the approval of the Minister, determine and appoint as officers of the Board such public officers from the Directorate of Legal Aid as may be necessary for the performance of the functions of the Board.

   (2) Where an officer from the Public Service is appointed to the service of the Board—

      (a)   the terms and conditions of service with the Board shall not be less favourable than those the officer enjoyed in the Public Service; and

      (b)   the officer shall be deemed to have retired under section 39 of the Public Service Pensions Act.

   (3) On or after the appointed date public officers from the Directorate of Legal Aid who are not engaged by the Board under sub-section (2) shall be retained by the Government and shall—

      (a)   be redeployed in the service of the Government; or

      (b)   be retired under section 39 of the Public Service Pensions Act.

[S 20F ins by s 8 of Act 19 of 2005.]

 

25.   Regulations

   (1) Subject to sub-section (2), the Minister may, by statutory instrument, make regulations for the better carrying out of the purposes of this Act and, without prejudice to the generality of the foregoing, such regulations may make provision for—

      (a)   anything which is to be or which may be prescribed under this Act;

      (b)   the composition, powers and functions of legal aid committees and the practice and procedure to be observed by these committees;

      (c)   the form of any certificate, any application and any other document which may be required for the purposes of this Act;

      (d)   the manner in which the means of any person who may be eligible for legal aid shall be computed;

      (e)   the manner of payment and recovery of any contribution required under section 17 to be made by a person to whom legal aid is granted; and

      (f)   reports and information required by the Director for the purposes of this Act to be supplied by public officers and other persons.

   (2) In the event of any conflict between regulations made under this section and any rules of court made under the Subordinate Courts Act, the High Court Act or the Supreme Court Act, the provisions of the rules of court shall prevail.

 

26.   Act to bind Republic

This Act shall bind the Republic

APPENDIX

[Section 9]

FIRST SCHEDULE

[Section 3A]

PART I
ADMINISTRATION OF BOARD

 

1.   Seal of Board

   (1) The seal of the Board shall be such device as may be determined by the Board and shall be kept by the Secretary.

   (2) The affixing of the seal shall be authenticated by the Chairperson or the Vice-Chairperson and the Secretary or any other person authorized in that behalf by a resolution of the Board.

   (3) Any contract or instrument which, if entered into or executed by a person not being a body corporate, would not be required under seal, may be entered into or executed without seal on behalf of the Board by the Secretary or any other person generally or specifically authorized by the Board in that behalf.

   (4) Any document purporting to be a document under the seal of the Board shall be received in evidence and shall be deemed to be so executed or issued, as the case may be, without further proof, unless the contrary is proved.

 

2.   Tenure of office and vacancy

   (1) Subject to the other provisions of this Act, a member of the Board shall hold office for a period of three year from the date of appointment and shall be eligible for re-appointment for one further term of three years.

   (2) The office of the member shall become vacant—

      (a)   upon the member’s death;

      (b)   if the member is absent without reasonable excuse from three consecutive meeting of the Board of which the member has had notice;

      (c)   on ceasing to be a representative of the organization which nominated the member;

      (d)   if the member becomes mentally or physically incapable of performing the duties of a member of the Board;

      (e)   if the member is declared bankrupt;

      (f)   if the member is convicted of an offence involving fraud or dishonesty; or

      (g)   if the member is convicted of an office against any other written law and is sentenced to a term of imprisonment of not less than six months without the option of a fine.

   (3) On the expiration of the period for which a member is appointed the member shall continue to hold office until a successor has been appointed but in no case shall the further period exceed three months.

 

3.   Filling of casual vacancy

Whenever the office of a member becomes vacant before the expiry of the term of the office, the Minister may appoint another member in place of the member who vacates office but that member shall hold office only for the unexpired part of the term.

 

4.   Proceedings of Board

   (1) Subject to the other provisions of this Act, the Board may regulate its own procedure.

   (2) The Board shall meet for the transaction of business at least every three months at such places and times as the Chairperson may determine.

   (3) The Chairperson may, upon giving notice of not less than fourteen days, call a meeting of the Board and shall call a special meeting to be held within fourteen days of receipt of a written request to the Chairperson by at least five members of the Board.

   (4) If the urgency of any particular matter does not permit the giving of such notice as is required under sub-section (3), a special meeting may be called by the Chairperson, upon giving a shorter notice.

   (5) Five members of the Board shall form a quorum at any meeting of the Board.

   (6) There shall preside at any meeting of the Board—

      (a)   the Chairperson;

      (b)   in the absence of the Chairperson, the Vice-Chairperson; or

      (c)   in the absence of the Chairperson and the Vice-Chairperson, such member as the members present may elect for the purpose of that meeting.

   (7) A decision of the Board on any question shall be by a majority of the members present and voting at the meeting and in the event of an equality of votes, the person presiding at the meeting shall have a casting vote in addition to the deliberative vote.

   (8) The Board may invite any person, whose presence is in its opinion desirable, to attend and to participate in the deliberations of the meeting of the Board but such person shall have no vote.

   (9) The validity of any proceedings, act or decision of the Board shall not be affected by any vacancy in the membership of the Board or by any defect in the appointment of any member or by reason that any person not entitled to do so took part in the proceedings.

 

5.   Committees of Board

   (1) The Board may, for the purpose of performing its functions under this Act, constitute such committee as it considers necessary and may delegate to any committee such of its functions as it considers fit.

   (2) The Board may appoint as members of a committee, persons who are, or are not members of the Board, except that at least one member of a committee shall be a member of the Board.

   (3) A person serving as a member of a committee shall hold office for such period as the Board may determine.

   (4) Subject to any specific or general directions of the Board, a committee may regulate its own procedure.

 

6.   Allowances of members

The members of the Board or any committee shall be paid such allowances as the Board may, with the approval of the Minister, determine.

 

7.   Disclosure of interest

   (1) If a member or person is present at a meeting of the Board or any committee of the Board at which any matter is the subject of consideration and in which matter the member or person’s spouse is directly or indirectly interested in a private capacity, the member or person as soon as is practicable after the commencement of the meeting, declare such interest and shall not, unless the Board or the committee otherwise directs, take part in any consideration or discussion of, or vote on any question touching that matter.

   (2) A declaration of interest made under sub-section (1) shall be recorded in the minutes of the meeting at which it is made.

 

8.   Immunity of members

No action or other proceedings shall lie or be instituted against any member or a member of a committee for or in respect of any act or thing done or omitted to be done in good faith in the exercise or purported exercise of that member or committee member’s functions under this Act.

 

9.   Prohibition of publication of infromation

   (1) A person shall not without the consent in writing given by, or on behalf of the Board, publish or disclose to any person other than in the course of duties, the contents of any document, communication, or information which relates to and which has come to the person’s knowledge in the course of the person’s duties under this Act.

   (2) Any person who knowingly contravenes the provisions of sub-section (1) commits an offence and shall be liable, upon conviction, to a fine not exceeding ten thousand penalty units or to imprisonment for a term not exceeding three months, or to both.

[Sch Part I subs by s 9 of Act 19 of 2005.]

PART II
FINANCIAL PROVISIONS

 

10.   Funds of Board

   (1) The funds of the Board shall consist of—

      (a)   such moneys as may be appropriated by Parliament for the purposes of the Board;

      (b)   such money as may be paid to the Board by way of loans, grants or donations;

      (c)   such percentage of the contributions paid to the Board as the Board may, with the approval of the Minister, determine; and

      (d)   such moneys as may vest in or accrue to the Board.

   (2) The Board may—

      (a)   subject of the approval of the Minister, accept moneys by way of grants or donations from any source in Zambia; and

      (b)   subject to the approval of the Minister, raise by way of loans or otherwise, such moneys as it may require for the discharge of its functions.

   (3) There shall be paid from the funds of the Board—

      (a)   the salaries, allowances, loans, gratuities and pensions of staff of the Board and other payments for the recruitment and retention of staff;

      (b)   such reasonable traveling and subsistence allowances for members or members of any committee of the Board when engaged on the business of the Board at such rates ad the Board may, with the approval of the Minister, determine; and

      (c)   any other expenses incurred by the Board in the performance of the Board’s functions.

 

11.   Investment of funds

The Board may, with the approval of the Minister, invest in such manner as it considers necessary any of the Board’s funds which it does not immediately require for the performance of the Board’s functions.

 

12.   Financial year

The financial year of the Board shall be the period of twelve months ending on 31st December in each year.

 

13.   Accounts

   (1) The Board shall cause to be kept proper books of he accounts and other records relating to the Board’s accounts.

   (2) The accounts of the Board shall be audited annually by independent auditors appointed by the Board subject to the approval of the Minister.

   (3) The auditor’s fees shall be paid by the Board.

 

14.   Annual report

   (1) As soon as is practicable, but not later than ninety days after the end of the financial year, the Board shall submit to the Minister a report concerning its activities during such financial year.

   (2) The report referred to in subparagraph (1) shall include information on the financial affairs of the Board and there shall be appended to the report—

      (a)   an audited balance sheet;

      (b)   an audited statement of income and expenditure;

      (c)   an audited statement of income and expenditure of the Fund; and

      (d)   such other information as the Minister may require.

   (3) The Minister shall, not later than seven days after the first sitting of the National Assembly next after receipt of the report referred to in sub-section (1), lay a report before the National Assembly.

[Sch Part II subs by s 9 of Act 19 of 2005.]

 
 

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