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SCZ JUDGMENT NO. 36 OF 2014

IN THE SUPREME COURT OF ZAMBIA APPEAL NO.109/2013HOLDEN AT LUSAKA(Civil Jurisdiction)

BETWEEN:

KELVIN HANG’ANDUAPPELLANT

ANDLAW ASSOCIATION OF ZAMBIA

RESPONDENT

Coram: Chibesakunda, Ag. CJ, Lisimba, and Lengalenga Ag.JJS, on 6th June, 2014 and 29th July, 2014

For the Appellant: In PersonFor the Respondent: Mr. K. Chenda, of Messrs. Simeza,

Sangwa and Associates

J U D G M E N TChibesakunda, Ag. CJ delivered the Judgment of the Court.

Cases referred to:

1. Union Bank v. Munster (1888) 37 Ch. D 54; 2. Greenlands Ltd v. Wilmshurst (1913) 29 T.L.R 687;3. Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed. 2d

140 (1986);4. Braunfeld v. Brown, 366 U.S 599, 81 S.Ct. 1144, 6 L.Ed.2d 563

(1961);

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5. Sherbert v. Verner, 374 U.S. 399, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963);

6. School District of Abington Township v. Schempp, 374 US 203, 83 S.Ct. 1560, 10 L.Ed.2d. 844 (1963);

7. U.S. v. Seeger, 380 U.S. 163 (1965);8. Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91

L.Ed. 711 (1947);

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9. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954);

10. Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896);

11. Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 25 L.Ed. 664 (1878);

12. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886);

13. Furman v. Georgia 408 US 238, 33 L Ed 2d 346, 92 S.Ct 2726 (1972);

14. Kachasu v. Attorney-General (1967) ZR 145;15. Anderson Mazoka and Others v. Levy Mwanawasa and Others,

(2005) ZR 138;16. Attorney-General v. Achiume (1983) ZR 1;17. Communications Authority of Zambia v. Vodacom Zambia,

(2009) ZR 196;18. Arthur Lubinda Wina and Others v. Attorney-General (1990-

1992) ZR 95; 19. Edith Nawakwi v. The Attorney-General (1990-1992) ZR 112; 20. Undi Phiri v. Bank of Zambia (2007) ZR 186; 21. Ramlogan v. The Mayor of San Fernado (1986) LRC 377;22. Koinange v. Attorney-General and Others (2007) 2 EA 256

(HCK);23. Adegbenro v. Akintola (1963) A.C 614; and24. Barry v. Midland Bank Plc (1999) 3 All ER 972.

Statutes referred to-

1. The Constitution of Zambia, Chapter 1 of the Laws of Zambia; and

2. The Education (Primary and Secondary Schools) Regulations, 1966.

Other works referred to-

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1. Longman Dictionary of Contemporary English, New Edition, for Advanced Learners (Essex, Pearson Education Limited, 2009);

2. Macmillan English Dictionary for Advanced Learners New Edition (Oxford, Macmillan Publishers Limited, 2007); and

3. Oxford Paperback Thesaurus, Third Edition (Oxford, Oxford University Press, 2006).

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This is an appeal from a judgment of the High Court delivered on 31st December, 2012 following a petition, for the protection of fundamental rights, filed by the Appellant on 7th

September, 2010. The main facts of this matter are simple and substantially not in dispute.

The Appellant’s case can be gathered from his Petition, his testimony and the testimony of his only other witness, Patson Tembo. His case is that he is an Advocate of the High Court of Zambia, and a member of the Law Association of Zambia, the Respondent in this Appeal. That he has been a member of the Respondent since 15th November, 1996, when he was admitted to the Bar. That on 24th May, 2003, he was baptized into the Christian faith of the Seventh Day Adventists (SDA).That among the fundamental doctrinal beliefs of the SDA is the immutable biblical command, enshrined in Exodus, Chapter 20, verse 8-11 of the Bible, that the seventh day of the week is the Sabbath of the Lord, and must be sacredly observed between Friday sunset, and

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Saturday sunset, through public worship and complete abstention from any form of menial work and regular activity, such as participation in the Annual General Meetings and other meetings (hereinafter collectively referred to as “the meetings”) customarily conducted by the Respondent on Saturdays.

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The essence of the Appellant’s Petition was that the Respondent had continued to hold its meetings on Sabbath despite his formal written complaints that his fundamental rights to religious liberty and freedom from faith based segregation should be upheld by the Respondent. Accordingly, the Appellant prayed that-

(a) it may be determined and declared that his fundamental rights to freedom of conscience, and not to be discriminated against had been contravened, contrary to Articles 11(a), 19(1), and 23(2) of the Constitution of Zambia;

(b) it may be determined and ordered that the Respondent, whether by itself, its agents, or servants or otherwise howsoever be restrained and an injunction be granted restraining it from holding or transacting any of its formal meetings during the Sabbath;

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(c) the Court may make such order, issue such writs, and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the fundamental rights provisions allegedly violated in relation to the Appellant pursuant to Article 28(1) of the Constitution of Zambia; and

(d) the Appellant may have the costs of the action, and any such further relief or other reliefs, as may be just.

On 28th October, 2011, the Respondent filed its Answer to the Petition. During trial, the Respondent did not call any witness

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because its Counsel held the view that the facts of this case were not in dispute and that the resolution of the matter largely depended on the interpretation of the law.

In its Answer, the Respondent denied that it had conducted its affairs in a discriminatory manner that had resulted in excluding the Appellant, from participating in its meetings, on the ground that he is a member of the SDA Church. The Respondent contended that the practice of holding its meetings on Saturdays had been in place from time immemorial, and way before the Appellant’s professed conversion to SDA. It denied that the Appellant’s fundamental right to religious liberty and freedom from faith based segregation had been infringed. It stated that

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the holding of its meetings on Saturday was due to the convenience of the day for the majority of its members.

After considering the evidence before him, and the submissions by the Appellant as well as those by Counsel for the Respondent, the learned trial Judge stated that there were two questions for his determination. He outlined the first question as whether or not the Respondent had willfully continued to contravene the Appellant’s freedom of conscience as provided for in Article 19 of the Constitution, and the second, as whether the

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Respondent willfully continued to contravene the Appellant’s fundamental right of protection from discrimination on the ground

of creed as provided for in Article 23 of the Constitution. The learned trial Judge dismissed both limbs of the Appellant’s claim and ultimately the entire Petition.

The Appellant has appealed, to this Court, against that judgment of the learned trial Judge, raising the following grounds:

1. that the honourable trial Court misdirected itself in law in dismissing the Appellant’s claim that the Respondent breached his fundamental right to freedom of

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conscience, as enshrined by Article 19(1) of the Constitution of Zambia Cap. 1, notwithstanding the Respondent’s conscience or deliberate timing and convocation of its official business on the Sabbath i.e. between Friday sunset and Saturday sunset, by failing to show that his non-attendance or participation in such programmes resulted from some positive act or constraint, restriction, or form of coercion imposed on him by the Respondent; in that no such criteria is required by Article 19(1) of the Constitution of Zambia as a sine qua non for proving a violation of the said Article;

2. that the honourable Court misdirected itself in law in holding that the Appellant failed to adduce any evidence showing that he has been discriminated against by the

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Respondent in that the finding of fact was against the weight of the evidence adduced at the trial;

3. that alternatively and without prejudice, the honourable Court misdirected itself in law in holding that the Appellant failed to adduce any evidence showing that the Respondent schedules its formal meetings in order to suit the religious beliefs or opinions of non-Seventh-day Adventists (SDAs) or otherwise so as to favour non-SDAs in that the finding

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of fact was against the weight of the evidence adduced at the trial;

4. that the honourable Court misdirected itself in law in holding that the Appellant failed to prove the charge of discrimination against the Respondent, by failing to prove that a similarly circumstanced or situated member of the Respondent had likewise complained but received more favourable treatment than him, in that no such criteria is required by Article 23(2) of the Constitution of Zambia as a sine qua non for proving discrimination and contravention of the said Article; and

5. the lower Court misdirected itself in law in holding that granting the Appellant’s Petition against the Respondent would in itself sanction discrimination in favour of the

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Appellant, in that the holding is unconscionable or otherwise unjust, inequitable, and entirely destitute of legal precedent; and thus an arbitrary rule or precept instituted by the High Court of Zambia for the purpose of this action alone.

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In support of the foregoing grounds of appeal, the Appellant filed very detailed heads of argument which he supplemented withviva voce submissions. The viva voce submissions were essentially a restatement of the salient points of his filed heads of argument.

In ground one, the Appellant started by presenting a discussion of the history of freedom of conscience. We must state from the outset that we do not see how the historical development of freedom of conscience would have any bearing on the issues to be determined in this appeal. The actual existence of freedom of conscience has not been disputed by the Respondent. We will not, therefore, make any reference to arguments relating to the historical development of freedom of conscience.

In his substantive arguments, the Appellant has argued that charging the Respondent with abnegation of its constitutional obligation, not to infringe, or otherwise to refrain from the

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continued infringement of, his freedom of conscience and protection from discrimination on account of creed, is rooted on the fact that the Respondent is a professional Association of lawyers uniquely constituted by an Act of Parliament. That according to section 4(1) of the Law Association of Zambia Act,

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Cap 31, the Respondent has an obligation to advance the rule of law and the rights and liberties of the individual. That, therefore, the Respondent’s violation of his constitutional right to freedom of conscience and protection against discrimination on the ground of creed, ironically contravenes one of the Respondent’s own principal statutory objects: ‘the advancement of the rule of law and of rights and liberties of the individual.’

In support of ground one, the Appellant faulted the learned trial Judge for having used English dictionaries to define the term ‘hindered’, which has been used in Article 19(1) of the Constitution. He submitted that the Court below should have instead followed the long line of judicial precedents that have clearly defined the true import of freedom of conscience. The Appellant contended that an English dictionary is not a legal authority and can never be an authoritative statement of constitutional law. To reinforce the foregoing arguments, the Appellant referred us to Union Bank v. Munster(1); Greenlands Ltd v. Wilmshurst(2) and Bowers v. Hardwick(3).

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The Appellant went on to submit that the Respondent’s deliberate timing of its meetings during the Sabbath, by itself, amounts to a violation of his freedom of conscience. That it was not a legal requirement that enforced attendance of the

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Respondent’s meetings had to be proved in order for the Appellant to successfully plead that his freedom of conscience has been violated. That freedom of religious conscience can still be indirectly impeded or even effectually destroyed where the adherents of a religious faith are forced to abandon their religious convictions by a measure whose natural or indirect result is to disadvantage members of a particular faith alone.

The Appellant maintained that the timing of the Respondent’s meetings unfairly hinders him from participating in the affairs or activities of the Respondent because the holy Sabbath, which he devoutly observes as a constituent part of his religious creed as a baptised Seventh-day Adventist, falls during the same period. He went on to submit that freedom of conscience or religious liberty has been said to comprise: “the right to have or adopt the religion of one’s choice; to change religious belief according to conscience; to manifest one’s religion individually or in community with fellow believers, in worship, observance, practice, witness and teaching, subject to respect for the equivalent rights of others” (See Seventh Day Adventist Church Manual Revised, 2005, 17th Edition).

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The Appellant noted that the Respondent’s rebuttal to the petition was that it has never compelled him to abscond from its meetings held on the Sabbath. His reply was that the convocation

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of the Respondent’s meetings during the Sabbath, has everything to do with him as a devout member of the SDA, in so far as the timing unfairly hinders him from participating in the Respondent’s meetings by reason only of his faith, and notwithstanding that he has been a bona fide member of the Respondent since 15th

November, 1996, when he was admitted to the Zambian Bar. In advancing the foregoing submissions, the Appellant drew inspiration from the decision of the US Supreme Court in Braunfied v. Brown(4).

The Appellant also referred us to the cases of Sherbert v. Verner(5); and School District of Abington Township v. Schempp(6) to further reinforce his submissions.

The Appellant further contended that it is a violation of the liberty of conscience, and the free profession of faith to officially compel religious doctrinal indoctrination on the pain of legal sanction. He cited the case of Sherbert v. Verner(5) as authority for the view that freedom of religious conscience may subtly and yet effectually be destroyed where the adherents of one religious faith are compelled to abandon their religious convictions respecting a day of rest, via a measure whose design in effect selectively aims at

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or even intrinsically disadvantages members of a particular faith alone. He went on to argue that this could be through State legislation, as was the case in Sherbert v. Verner(5), or via the unlawful act of a public body constituted by an Act of Parliament, such as the Respondent.

Coming to ground two, the Appellant submitted that the learned trial Judge’s finding of fact that he failed to adduce any evidence showing that he had been discriminated against by the Respondent, was against the weight of the evidence adduced before the Court below. The Appellant contended that the facts before the learned trial Judge indisputably proved that the Respondent’s holding of its meetings during the Sabbath effectively discriminates against him, on the basis of his religious creed. He argued that the timing of the Respondent’s meetings unfairly deprives him of the opportunity to vie for elective offices in the Respondent and to participate in the consideration of the Respondent’s budget. To buttress the foregoing submissions, the Appellant cited the cases of U.S. v. Seeger(7); Everson v. Board of Education(8); Brown v. Board of Education(9); and Plessy v. Ferguson(10).

The Appellant went on to contend that discrimination can either be intentional or unintentional. He relied on the cases of Strauder v. West Virginia(11), Yick Wo v. Hopkins(12) and

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Sherbert v. Verner(5), to aid his argument that discrimination is intentional if it clearly singles out a particular group of persons for unfavourable treatment. He submitted that discrimination is unintentional if, a law which isprima facie fair and impartial is administered by a public authority with an evil eye and unequal hand thereby practically making it unjust.

The Appellant submitted that the law does not require him to show that the Respondent has put in place a regulation that bars him from attending its programmes convened during the Sabbath, in order to prove his case of discrimination. On the authority of Furman v. Georgia(13), he argued that in cases alleging unlawful segregation or inequality of treatment, an act or law that is ex facie non-discriminatory, can in fact be discriminatory in its operation or effect.

The Appellant further submitted that the SDA Church cannot shift the Sabbath to any other day to accommodate him because the Sabbath is enjoined by God. That conversely, the Respondent is free to shift its business to other non-worship days, such as Monday to Thursday.

With regard to ground three, the Appellant argued that the Court below misdirected itself in law by holding that the Appellant failed to adduce any evidence to show that the Respondent

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schedules its meetings in order to suit the religious beliefs of non-SDAs. He argued that there was evidence before the trial Court to the effect that the Respondent’s timing of its meetings during the Sabbath is directly irreconcilable with the Appellant’s religious faith.

The Appellant went on to argue that the facts of Kachasu v. Attorney-General(14) are distinguishable from the facts of the instant case. He submitted that, in the Kachasu(14) case, what was impugned, as being unconstitutional, was an Act of Parliament, the Education (Primary and Secondary Schools) Regulations, 1966 while in the present case the Petition relates to the conduct of the Respondent. Further that, the Kachasu(14)

case never considered the question of protection from discrimination on the ground of one’s creed. The Appellant also contended that the ratio decidendi in the Kachasu(14) case was that the Education Regulations infringed the Applicant’s freedom of conscience, but that the Regulations were nevertheless reasonably required by Zambia, as a democratic State, for the furtherance of both national unity and security.

Coming to ground four, the Appellant submitted that the learned trial Judge misdirected himself when he held that the Appellant failed to prove the charge of discrimination against the Respondent, by failing to establish that a similarly circumstanced

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or situated member of the Respondent had complained but received more favourable treatment than him. The Appellant argued that no such criterion is required by either Article 23(2) or Article 28(1) of the Constitution of Zambia.

As for ground five, the Appellant submitted that the lower Court misdirected itself in law when it held that granting the Appellant’s Petition against the Respondent would in itself sanction discrimination in favour of the Appellant. He submitted that the learned trial Judge’s holding was wrong at law because there are many precedents in which Sabbatarians have successfully obtained a remedy on the ground that denial of certain benefits which extended to other classes of persons was wholly attributable to their faith as SDAs. To buttress the foregoing arguments, he cited the case of Sherbert v. Verner(5).

In response to the Appellant’s grounds of appeal and supporting arguments, Counsel for the Respondent, Mr. K Chenda, filed written heads of argument which he augmented by brief oral submissions.

In brief, Mr. Chenda’s argument in opposition to ground one was that the learned trial Judge properly directed himself when he referred to English dictionaries for the definition of the word ‘hindered’. To reinforce his argument, Counsel referred us to our

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decision in Anderson Mazoka and Others v. Levy Mwanawasa and Others(15) where, when interpreting the word ‘determine’, as used in Article 41(2) of the Constitution, this Court referred to the Concise Oxford Dictionary, 9th Edition.

Coming to grounds two and three, Mr. Chenda argued the two grounds as one. Counsel contended that grounds two and three attacked the learned trial Judge’s findings of fact. In support of this argument, Counsel cited the cases of Attorney-General v. Achiume(16) and Communications Authority of Zambia v. Vodacom Zambia(17).

With regard to ground four, Counsel submitted that the need for a comparative investigation, when faced with an allegation of discrimination, is not unique to the Zambian jurisdiction. Counsel cited a judgment that was handed down by the High Court of Trinidad and Tobago in Ramlogan v. The Mayor of San Fernando(21) where the Court observed, at page 391, that-

“As far as the Applicant’s claims under sections 4(b) and 4(d) of the Constitution are concerned, I do not find any evidence that the Applicant was treated less equally than any other individual similarly circumstanced, or that the Applicant was discriminated against.”

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Counsel further argued that the definition of ‘discrimination’, in Article 23(3) of the Constitution, clearly shows that the Court is required to invoke a comparative investigation when faced with a complaint of discrimination. As authority for this argument, Counsel referred us the cases of Arthur Lubinda Wina and Others v. Attorney-General(18); Edith Nawakwi v. The Attorney-General(19); Undi Phiri v. Bank of Zambia(20); and Koinange v. Attorney-General and Others(22).

Lastly, on ground five, Counsel contended that if the Court compelled the Respondent to move the day for its meetings from Saturday to another day of the week the effect would be to favour the Appellant, on the one hand, against the interests of the rest of the members of the Respondent. In Counsel’s view, that would be a judicial endorsement of discrimination.

We have carefully considered the evidence on record and the judgment appealed against. We have also aptly analysed the industrious submissions advanced by the Appellant as well as those by Counsel for Respondent. We are deeply indebted to both parties for the extensive research that noticeably went into the preparation of their respective submissions. We will deal with grounds two, three, four and five as one because they all relate to

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the issue of discrimination. We will decide on ground one separately. We will start with ground one.

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In ground one, the argument by the Appellant is that the trial Court misdirected itself when it dismissed his claim that the Respondent breached his freedom of conscience as enshrined in Article 19(1) of the Constitution, Cap 1. The Appellant has argued that the learned trial Judge misdirected himself when he relied on English dictionaries to define the word “hindered” used in Article 19(1).

From inception, we must state that the Respondent has not contested the Appellant’s belief in the inviolability of the Sabbath. The critical question for our decision, in our view, is whether or not the holding of the Respondent’s meetings on the Sabbath hinders the Appellant’s enjoyment of freedom of conscience enshrined in Article 19(1) of the Constitution. Article 19(1) provides that-

“19. (1) Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of conscience, and for the purposes of this Article the said freedom includes freedom of thought and religion, freedom to change his religion or belief, and freedom, either alone or in community with others, and both in public and in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.”

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After painstakingly studying clause (1) of Article 19, we agree entirely with the learned trial Judge that the operative word in that clause is ‘hindered’. The phrase ‘freedom of conscience’ itself is

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unmistakably defined within that clause as quoted supra. So the only word that we must define, in order to properly understand clause (1), is ‘hindered’.

In his judgment, the learned trial Judge formulated a definition of ‘hindered’, after referring to Longman Dictionary of Contemporary English, New Edition, for Advanced Learners (Essex, Pearson Education Limited, 2009); Macmillan English Dictionary for Advanced Learners New Edition (Oxford, Macmillan Publishers Limited, 2007); and Oxford Paperback Thesaurus, Third Edition (Oxford, Oxford University Press, 2006). He defined ‘hindered’ as follows:

“… the word ‘hindrance’ in the context of Article 19(1) of the Constitution seems to me to suggest or mean an impediment, obstacle, barrier, bar, obstruction, restraint, restriction, limitation, encumbrance that tends to abrogate fundamental rights and freedoms that would require judicial intervention and redress.” (Emphasis by underlining ours).

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The Appellant has, however, faulted him for having arrived at that definition on the basis of interpretations obtained from English dictionaries. The Appellant has argued that in defining that word, the Court below should have followed the long line of judicial precedents that have clearly defined the true import of freedom of conscience. The Appellant’s submission canvassed the view that the learned trial Judge should have defined ‘freedom of conscience’ on

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the basis of what he refers to as ‘the long line of judicial precedents’. In our view, the Appellant’s argument is frail at law. We hold the considered opinion, and entirely agree with the learned trial Judge, that the term that needed to be defined, in order to arrive at a clear understanding of Article 19(1) of the Constitution, was ‘hindered’ and not ‘freedom of conscience’. The drafters of our Constitution have already defined ‘freedom of conscience’ in Article 19(1) itself. The Appellant has not advanced any solid grounds upon which we can be persuaded to abandon the interpretation of ‘freedom of conscience’ contained in Article 19(1), in preference to definitions derived by American Courts on the basis of their own Constitutional provisions. In this regard, we take a leaf from the caution provided by Lord Raddcliffe in Adegbenro v. Akintola(23), when he said that-

“. . . it is in the end the wording of the Constitution itself that is to be interpreted and applied, and this

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wording can never be over-ridden by the extraneous principles of other Constitutions which are not explicitly incorporated in the formulas that have been chosen as the frame of this Constitution.”

Strikingly, although the Appellant has faulted the Court below for having referred to English dictionaries in coming up with the definition of ‘hindered’, he has not offered any contrary interpretation of that term. The authorities, that he has cited in his

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heads of argument, all describe what constitutes a breach of ‘freedom of conscience’ by using words which are either the same as, or synonymous with the terms contained in the learned trial Judge’s definition. The descriptive words contained in the authorities cited by the Appellant are-‘hamper’ used in Everson v. Board of Education(8); ‘constrain’ used in Sherbert v. Verner(5); ‘impede’ used in Braunfeld v. Brown(4) and ‘inhibit’ used in School District of Abington Township v. Schempp(6).

It is our firm opinion that the Appellant has not established that the underlined words, contained in the definition coined by the learned trial Judge carry meanings which are different from the words used in Everson v. Board of Education(8); Sherbert v. Verner(5); Braunfeld v. Brown(4) and School District of Abington Township v. Schempp(6).

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Even assuming that the definition devised by the Court below is different from the interpretations contained in the American cases cited by the Appellant, we maintain the firm view that it was not a misdirection for the learned trial Judge to refer to English dictionaries when defining ‘hindered’. The foregoing view is supported by a plethora of cases in which this Court has referred to English dictionaries to define words. One such case is the Anderson Mazoka(15) case, where we referred to the Concise Oxford

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Dictionary, 9th Edition, to define the word ‘determine’ as used in Article 41(2) of the Constitution. We said in that case that-

“The question is; what mandate has this provision given to this court? It is trite law that the primary rule of interpretation is that words should be given their ordinary grammatical and natural meaning. It is only if there is ambiguity in the natural meaning of the words and the intention of the legislature cannot be ascertained from the words used by the legislature that recourse can be had to the other principles of interpretation. …”

Having referred to the definitions of ‘determine’ contained in the Concise Oxford Dictionary, this Court proceeded to say the following:

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“We have no doubt in our minds that the meaning of the word ‘determine’ in the context it is used in Article 41(2) calls upon this court to find out or establish precisely or decide whether a person was validly elected as President of Zambia and/or whether the applicable laws were followed.”

Accordingly, we hold that the learned trial Judge properly directed himself when he defined ‘hindered’ on the basis of definitions derived from English dictionaries.

Having ascertained the meaning of ‘hindered’, we must now consider whether or not the learned trial Judge was on firm ground when he dismissed the Appellant’s claim that the Respondent had breached his freedom of conscience. We hold that the trial Court

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was indeed on terra firma. Even accepting the Appellant’s very poignant argument that freedom of religious conscience can still be indirectly – not necessarily purposely – impeded or even effectually destroyed where the adherents of one religious faith are confronted to abandon their religious convictions respecting a day of rest via a measure whose natural or proximate or indirect result is to disadvantage members of a particular faith alone, we still hold the view that, in this case, the Respondent has not infringed the Appellant’s freedom of conscience.

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The foregoing holding is resolutely founded on the fact that there is no evidence on the record of appeal to establish that the Respondent has done anything to hinder the Appellant in the enjoyment of his freedom of conscience. A careful scrutiny of the record of appeal establishes that the Appellant does not dispute the fact that the Respondent started holding its meetings on the Sabbath way before he became its member. While the Respondent was constituted in 1973, pursuant to the Law Association of Zambia Act, Cap 31, the Appellant only became, its member on 15th November, 1996, following his admission to the Bar. According to the Appellant’s own evidence, he participated in the Respondent’s meetings from 15th November, 1996 until 24th

May, 2003, when he converted to Adventism. Following his conversion, he has faithfully observed the Sabbath. The Appellant did not adduce any evidence whatsoever to prove that the Respondent has in any way coerced

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him to choose attending its meetings at the expense of observing the Sabbath. He also did not tender any evidence to establish that the Respondent has imposed or threatened to impose any sanction against him for having been missing its meetings since 24thMay, 2003. What is effortlessly discernable from the Appellant’s evidence and submissions is that since he voluntarily converted from Catholicism to Adventism, he has been devotedly observing the Sabbath. There is no evidence to establish that he has been forced by the Respondent, even subtly, to abandon his

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observance of the Sabbath. So the conduct of the Respondent cannot be said to have had the effect of impeding the Appellant in the observance of the Sabbath. What the Appellant has been failing to do is to attend the Respondent’s meetings which are held on the Sabbath. So in reality, in our view, since his conversion from Catholicism to Adventism, the Appellant has enjoyed his freedom of conscience without any hindrance from the Respondent.

A review of decided cases, on the subject of freedom of conscience, establishes that the Appellant’s claim that the Respondent has violated his freedom of conscience is unsustainable. We will consider only two cases on this point, namely, Sherbert v. Verner(5) and the Kachasu case(14). The brief facts of Sherbert v. Verner(5) were that Adell Sherbert was a spool tender in Spartanburg, South Carolina Textile Mill. She worked on Monday through to Friday from 7pm to 3pm. She was a member of

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the SDA Church, which held that no work could be performed between sundown on Friday, and sundown on Saturday. In due course, Sherbert’s employers informed her that starting the next day, to retain her job, she would need to report to mill every Saturday. She continued to work only on Monday through to Friday. In observance of her religious beliefs did not work on six successive Saturdays. Her employer dismissed her.

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Following her dismissal, Sherbert tried to find a job at three other textile mills, but they too operated on Saturdays. Consequently, she filed for State unemployment benefits. Under South Carolina law, for a claimant to be eligible for benefits he or she must have been “able to work… and available for work”. A claimant was ineligible for benefits if he or she had “failed without good cause … to accept available suitable work when offered… by the employment office or the employer.” The benefits examiner in charge of Sherbert’s claim turned her down on the ground that she had failed, without good cause to accept “suitable work when offered” by her employer.

Sherbert and her lawyers commenced an action in a South Carolina State Court which ruled in favour of the employment office. After the State Supreme Court affirmed that decision, Sherbert’s lawyers asked the US Supreme Court to review the case. The opinion of the Court was delivered by Justice Brenan. The first

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question that the Court considered was whether the disqualification for benefits imposed any burden on the free exercise of the Appellant’s religion. The Court considered that it did.

Justice Brenan observed, inter alia, that-

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“Here not only is it apparent that the Appellant’s declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits on the one hand, and abandoning one of the precepts of her religion in order accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against the Appellant for her Saturday worship. Nor may the South Carolina Court’s construction of the statute be saved from constitutional infirmity on the ground that employment compensation benefits are not the Appellant’s ‘right’ but merely a ‘privilege’. It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege. Significantly, South Carolina expressly saves the Sunday worshiper from having to make the kind of choice which we hold infringes the Sabbatarians religious liberty.”

After citing Sherbert v. Verner(5), the Appellant contended that the Respondent’s holding of its meetings on Sabbath has left

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him with only two options, namely- (a) renouncing his faith, or (b) abandoning his membership of the Respondent in order to continue with his faith. We do not agree with the Appellant that

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he has been put under the strain of choosing between the two options. The evidence on the record of appeal plainly establishes that the Appellant is free to continue being a member of the Respondent even without ever attending its meetings. In fact this is also evident from the fact that although he has not been attending the Respondent’s meetings since 24th May, 2003, the Respondent has not imposed, or threatened to impose, any sanction against him. There has never been any positive act or threatened act on the part of the Respondent aimed at hindering the Appellant’s enjoyment of his freedom of conscience. Unlike Sherbert, in Sherbert v. Verner(5), the Appellant still remains a member of the Respondent and continues to practice his law as such even though he has not attended any of the Respondent’s meetings, held on Saturdays, since he was admitted to the Bar.

Let us now examine the Kachasu(14) Case. The Appellant argued that the Kachasu(14) case is distinguishable from the instant case because, according to him, in the Kachasu(14) case, the issue in contention was the constitutionality of a piece of legislation while the instant case challenges the conduct of the Respondent. With the greatest respect to the Appellant, we are of the opinion that his argument is merely academic. In our view, the significant

(869)

consideration is that in both cases the claims relate to the violation of freedom of conscience as enshrined by constitutional

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provisions couched in exactly the same words. Also the issues of law raised are very similar.

The Kachasu(14) case was an application brought before the High Court by Feliya Kachasu, a young girl aged between eleven and twelve years, through her father, Paul Kachasu, as next friend. The Applicant’s father was a Jehovah’s Witness. The Applicant herself had been brought up in the religion of Jehovah’s Witnesses and had been taught that it is against God’s law to worship idols or to sing songs of praise or hymns to other than Jehovah Himself. The Applicant and her father and many other Jehovah’s Witness regarded the singing of the national anthem as the singing of a hymn or prayer to someone other than Jehovah God Himself.

On the 2nd September, 1966, the Education (Primary and Secondary Schools) Regulations, 1966, was brought into force. The Regulations only applied to Government and Government aided schools. By regulation 25, pupils at these schools were required to sing the national anthem and salute the national flag on certain occasions. By regulation 31(1) (d), the Head Teacher of a school was empowered to suspend any pupil who willfully refused to sing the national anthem or to salute the national flag when lawfully required to do so.

(870)

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In October, 1966, the Applicant refused to sing the national anthem and she was suspended from school. There followed some interviews between the Applicant’s father and the school authorities during which it was made clear to him that the Applicant could not be readmitted to school unless she agreed to comply with the regulations and sing the national anthem and salute the national flag when required to do so.

Consequently, through her father, the Applicant filed a Notice of Motion based, inter alia, on the ground that the suspension constituted a hindrance in the enjoyment of her freedom of conscience. Delivering his judgment, Blagden, CJ, summarised his findings, of which the following are relevant to the instant case:

1. “that the Applicant had suffered hindrance in the enjoyment of her freedom of conscience in that she had been coerced to sing the national anthem at Buyantanshi School contrary to her religious conscience; and that she had been suspended from school and denied readmission thereto in consequence of her refusing to sing the national anthem or salute the national flag; and

2. that such hindrance, however, did not constitute a contravention of her right to the enjoyment of freedom of conscience, secured to her by section 21 of the Constitution, in as much as that hindrance was reasonably justifiable in a democratic society and was authorised by laws which were both reasonably

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required in the interests of defence and for the purpose of protecting the rights and

(871)

freedoms of other persons, and themselves reasonably justifiable in a democratic society.”

Blagden, CJ, said that-“In determining, therefore, whether there has been any breach of the applicant's rights to her freedom of conscience here, it is necessary to see first whether in fact she has been, or is being, or is likely to be, hindered in the enjoyment of her freedom of conscience or religious thought. It is to be noted that the operative word is “hindered”, not “prevented”. Nor is there any qualification of the word “hindered”. Even a slight degree of hindrance, therefore, will be relevant and may constitute a contravention of section 21.”(Emphasis by underlining ours).

Blagden, CJ, highlighted the practical meaning of the word ‘hindered’ as used in section 21(1) of the Constitution (which was equivalent to the current Article 19(1) of the Constitution). In arriving at the decision, that that the Applicant had been hindered in the enjoyment of her freedom of conscience, Blagden, CJ primarily based his conclusion on the fact that she had been coerced to sing the national anthem contrary to her religious conscience; and that she had been suspended from school and denied readmission thereto in consequence of her

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refusing to sing the national anthem or salute the national flag. In fact Blagden, CJ, particularly said, at page 161 of his judgment, that-

(872)

“But in any case, in my view, the applicant was hindered in the enjoyment of her freedom of conscience the moment she was put under coercion to sing the national anthem against her religious beliefs. For at that moment she was not free to give expression to her religious convictions….”(Emphasis by underlining ours).

In his filed heads of argument, Counsel for the Respondent has submitted that hindrance being the antithesis of freedom of conscience, an infringement by the Respondent cannot be established without showing to the Court that the Appellant’s exercise of the freedom was affected by some constraint, restriction, or from of coercion which he was subjected to by the Respondent. That a positive act or overt act or threatened action on the part of the Respondent is key to actionable infringement. We entirely accept Counsel’s submissions.

On the evidence on record, we are of the considered view that the Appellant did not prove that there had been any positive act taken or threatened to be taken by the Respondent. The evidence from the Appellant did not also establish that he had

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been placed in a situation where he had to make extremely painful and intensely burdensome choices of either being true to his faith, or risk forfeiting his practice of the law, and his actual membership with the Respondent, in the sense of Sherbert v. Vernar(5).

(873)

Furthermore, as a matter of fact the Appellant has not been denied his freedom of conscience. As already adjudged, elsewhere in this judgment, since his conversion to Adventism, he has remained absolutely free to give expression to his religious convictions. In our view, what is manifest, from the evidence on the record of appeal, is that what the Appellant has not been enjoying is his freedom to participate in the meetings of the Respondent and vie for elective offices in the Respondent. Unfortunately for the Appellant, these freedoms are not recognized and protected by our Constitution.

For the foregoing reasons, and on the authority of decisions in Sherbert v. Verner(5) and the Kachasu(14) case, it is our considered opinion that the Appellant’s claim that the Respondent has violated his freedom of conscience, is unsustainable.

Accordingly, we hold that the Respondent has neither directly nor indirectly hindered the Appellant in the enjoyment of his freedom of conscience. Ground one must accordingly fail.

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We now turn to considering grounds 2, 3, 4 and 5. These grounds relate to the Appellant’s claim that he has been discriminated against by the Respondent on account of his religious creed as enshrined in Article 23(2) of the Constitution. The broad question raised by the three grounds is whether or not the Appellant has been discriminated against by the Respondent. The

(874)

Appellant has argued that the Respondent’s customary timing of its meetings during the Sabbath effectively discriminates against him on the basis of his creed.

The learned trial Judge dismissed the Appellant’s claim of discrimination on the ground that he did not adduce any evidence to show how he has been treated differently by the Respondent. The learned trial Judge also held that in the absence of evidence that a similarly circumstanced member of the Respondent complained about the day of holding meetings, and that their complaint received more favourable treatment than that of the Appellant, there can be no proper or fair basis to found the allegation of discrimination. Lastly, the trial Court said that in any case the relief sought by the Appellant would in fact amount to sanctioning discrimination in favour of the Appellant, and against the Respondent’s non-SDA members; in that meetings of the Respondent would be held on any day other than that which SDA members consider to be reserved for non-secular activities.

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We have taken time to judiciously examine the foregoing holdings by the learned trial Judge. We hold the considered opinion that in arriving at the said holdings, the Court below properly construed Article 23(2) and (3) of the Constitution. For the sake of clarity, we will reproduce both clause (2) and (3) of Article 23, which are as follows:

(875)

23. (2) Subject to clauses (6), (7) and (8), a person shall not be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.

(3) In this Article the expression “discriminatory” means affording different treatment to different persons attributable, wholly or mainly to their respective descriptions by race, tribe, sex, place of origin, marital status, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.”(Emphasis by underlining ours).

The question we must consider is - what constitutes ‘discrimination’ under Article 23(2)? The answer to this question is not as elusive as the Appellant seems to have suggested in his submissions. In our view, and contrary to the fervent contentions

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by the Appellant that the Court below should have relied on the USA Supreme Court’s decided cases in considering whether or not he had been discriminated against, the interpretation of ‘discrimination’ is clearly spelt out in Article 23(3).

After examining Article 23(3) of the Constitution, we accept Mr. Chenda’s argument that the definition of ‘discrimination’ calls for a comparative consideration of persons belonging to at least two

(876)

categories. This is what is similarly discernable from a number of decided cases. To illustrate this point, in Edith Nawakwi v. The Attorney-General(19), where the Plaintiff brought an action on the ground, inter alia, that she had been and continued to be unfairly discriminated against on the ground of sex, Musumali, J, said the following:

“Be that as it may it is my very considered view that the intentions of the framers of this Constitution when they passed the Bill of Rights (Part III of the Constitution) could never have been to discriminate between males and females in the way the Passport Office and its sister Department have been doing. …. Forms A and D of the Passport Office have not been issued, on the basis of any legal provision. And even if they were so issued, that law would be unconstitutional as it would be discriminatory between mothers and fathers in matters relating to their children’s inclusion in the mothers’ passports or getting passports or travel document, for no good

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reason than the fact that one is a female and the other a male.”(Emphasis by underlining ours).

Another decided case which demonstrates that a consideration of ‘discrimination’ entails the existence of more than one category of persons, is the Arthur Wina(18) case. The brief facts of that case were that, at a press conference held at State House on 1stNovember, 1990, the then Republican President made a directive to the effect that henceforth the Government owned newspaper, the Zambia Daily Mail and what he referred to as (UNIP) Party

(877)

newspapers, the Times of Zambia and the Sunday Times, should cease to give coverage to statements made by members of the Movement for Multi-Party Democracy (MMD) and, in the case of the Times of Zambia and the Sunday Times, they should stop to accept advertisements from the MMD. The President announced that these newspapers were owned by the UNIP and its Government and as such they were not supposed to give any room for the opposition to criticise the policies, actions or programmes of the UNIP Government. Aggrieved by this directive, the Petitioners brought a Petition in the High Court, claiming, inter alia, that the directive was discriminatory. Delivering his judgment, Musumali, J, had the following to say-

“The next issue arising from this finding is: did the directive discriminate between the petitioners and their members on the one hand and those who held

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views similar to those held by the President on the other hand? The answer again is in the affirmative. The nature of the directive is such that it cannot command any other interpretation even from those really hostile to the petitioners. That discrimination was against the petitioners and their followers and in favour of the UNIP leaders and their members.”(Emphasis by underlining ours).

Evidently, the Edith Nawakwi(19) and Arthur Wina(18) cases consistently establish that discrimination can only exist in relation to at least two categories of persons. To this effect, in Barry v. Midland Bank Plc(24), the House of Lords said, at page 981, that

(878)

“Discrimination means treating like cases differently or, as is claimed in the present case, treating unlike cases the same.”

On the facts of the instant case, we are of the firm view that the Appellant has not established that he has been discriminated against by the Respondent. The fact that the Appellant has not been attending the Respondent’s meetings, because such meetings are held on the Sabbath, does not ipso facto mean that he has been discriminated against. The burden of proof was on him to establish that the Respondent holds its meetings on the Sabbath for the purpose of, either intentionally or unintentionally, affording the privilege of attending the said meetings to one or more religious groups and denying that privilege to the Appellant

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on the ground of his creed. It was essential for the Appellant to prove that he is denied the privilege of attending the Respondent’s meetings wholly or mainly because he is an Adventist. It was also vital for him to establish that the other category of the Respondent’s members is afforded the privilege of attending its meetings wholly or mainly on the basis of their creed. We do not think the Appellant proved the foregoing.

Instead the record of appeal clearly shows that the Respondent did not fix the holding of its meetings on Saturday with any religious grouping in mind. The Respondent’s decision to start holding its meetings on Saturdays had no nexus to the religious

(879)

beliefs of any of its members. Saturday was arrived at on the basis of the convenience of the day to the majority of the Respondent’s members. In fact, the evidence on record establishes that when the Appellant joined the Respondent in 1996, he found the practice of holding meetings on Saturday. In other words, it was because the Appellant changed his creed in 2003 that he has been failing to attend the Respondent’s meetings.

We, therefore, hold the strong opinion that there is no legal basis upon which we can judiciously compel the Respondent to change the day for holding its meetings. This is even more so

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when one considers the fact that, paragraph 7 of the Respondent’s Answer to the Petition, which paragraph was never discredited by the Appellant, clearly establishes that Saturday was set, by the Respondent, for the holding of its meetings, based on the consent of the majority of its members, because it was the most convenient day to the majority of them.

The Appellant took his argument further. He spiritedly submitted that while Sabbath observance is perpetually enjoined by God, and cannot, therefore, be abrogated by the SDA Church, the Respondent has a choice of shifting its meeting days to other known non-worship days, e.g. Monday to Thursday. He argued that this is so because the holding of the Respondent’s meetings on Saturdays was arrived at purely for the convenience of its members. He

(880)

referred this Court to the case of Braunfied v. Brown(4) where the US Supreme Court said that-

“if the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterised as being only indirect. But if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State’s secular goals, the statute is valid despite its indirect burden on religious observance

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unless the State may accomplish its purpose by means which do not impose such a burden .”

Indeed the indirect effect of the Respondent’s practice of holding its meetings on Saturday has been that the Appellant fails to attend such meetings on account of his observance of the Sabbath. However, notwithstanding the said indirect burden, on the Appellant’s observance of the Sabbath, we hold the considered view that the facts of this case establish that the Respondent cannot hold its meetings on any other day without imposing a similar burden on the majority of its members. A perusal of the record of appeal establishes that the Appellant did not proffer any evidence to prove that the days, Monday to Friday, would be convenient to all the members of the Respondent. As already alluded to in this judgment, the majority of the members of the Respondent chose Saturday as the most convenient day for the conduct of the Respondent’s meetings. In light of that fact, in our

(881)

view, instead of merely taking the easy route of suggesting alternative days to the trial Court, the Appellant should have gone a step further to prove that none of the members of the Respondent would stand disadvantaged if it held its meetings on any of the days he proposed. In his evidence, the only religious groups that he talked about were Sunday worshippers and Muslims who, according to him, worship on Friday. We, however,

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take judicial notice that these are not the only religious groupings that exist in Zambia. The Appellant has not, therefore, convinced us that no religious group in Zambia conducts religious activities on any of the days from Monday to Thursday. He has not convinced us that ordering the Respondent to shift the holding of its meetings from Saturday to any day, from Monday to Thursday, will not impose a burden, similar to the one he is challenging, on the majority of the Respondent’s members.

It follows from the foregoing, and we entirely agree with the learned trial Judge, that compelling the Respondent to change its day for holding meetings, from Saturday to a day from Monday to Thursday, would amount to sanctioning discrimination in favour of the Appellant, and against the Respondent’s non-SDA members; in that activities and meetings would be held on any day other than that which SDA members consider to be reserved for non-secular activities. The practical effect of such a decision would be to afford favourable treatment to the Appellant on the basis of his creed

(882)

when such favourable treatment is not extended to the majority of the Respondent’s members, who for various reasons, chose Saturday as the most convenient date for the Respondent to hold its meetings. In our view, it would be wrong, at law, for this Court to order the Respondent to change the days of its meetings when the Appellant’s evidence has not eliminated the possibility that

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the religious liberties of other members of the Respondent may be thereby abridged. In Sherbert v. Verner(5), the facts of which we have already reproduced, Brennan, J said the following:

“In holding as we do, plainly we are not fostering the ‘establishment’ of the Seventh-day Adventist religion in South Carolina. …Nor does the recognition of the appellant’s right to unemployment benefits under the State statute serve to abridge any other person’s religious liberties. (Emphasis by underlining ours).

Taking a leaf from the foregoing statement by Brennan, J, we hold that the recognition of the Appellant’s right to attend the Respondent’s meetings and vie for elective positions in the Respondent cannot be afforded to him at the peril of abridging the religious liberties of any other member of the Respondent.

For the foregoing reasons, we hold that grounds 2, 3, 4 and 5, too, must equally fail.

(883)

We, therefore, hold that on the totality of the issues, this appeal lacks merit. We dismiss the appeal on all the five grounds. Since this appeal has raised constitutional issues of remarkable importance, we order each party to bear their own costs.

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……….……………………..L. P. CHIBESAKUNDA

ACTING CHIEF JUSTICE

……………………………….. …………………………………M. LISIMBA F. LENGALENGAAg. SUPREME COURT JUDGE Ag. SUPREME COURT JUDGE