1.

INTRODUCTION Stare decisis, meaning, "Maintain what has been decided and do not alter that which has been established" is the legal principle by which judges are obliged to obey the precedents established by prior decisions. This is the courts policy to stand by precedent; In other words, stare decisis applies to the holding of a case, rather than to obiter dicta. ("dicta may be followed if sufficiently persuasive but are not binding.) The doctrine that holdings have binding precedential value is not valid within most civil law jurisdictions as it is argued that this principle interferes with the right of judges to interpret law and the right of the legislature to make law. Most such systems, however, recognize the concept of jurisprudence constante, which argues that even though judges are independent, they should judge in a predictable and non-chaotic manner. Therefore, judges' right to interpret law does not preclude the adoption of a small number of selected binding case laws

2. JUDICIAL PRECEDENCE This is a court's decision made with the expectation of being consistent with decisions in previous cases and to provide certainty for the future. These considerations are reflected in the common law system of judicial precedent. Decision of judges must be reasoned, and the reasons will normally include propositions of law. The judge in a later case is bound to consider the relevance of the case law and will normally accept the propositions stated as correct unless there is good reason to disagree. In some circumstances he/she is required to accept them even if they are in his/her view obviously wrong. So all relevant precedents are to a greater or lesser extent "persuasive", and some of them may be "binding" under the doctrine of stare decisis. The characteristic that an individual precedent may be binding is peculiar to the common law system.

Binding precedent: A court is only obliged to follow the decisions of courts at a higher or the same level in the court structure. a) Subordinate courts Decisions of these courts are rarely reported outside the pages of local newspapers but even if they were reported they would not constitute precedents binding on anyone. Magistrates presiding over these courts cannot bind themselves although it is expected that an individual magistrate will attempt to be consistent in his/her own decision making. However, these courts are bound by the decisions of the High Court and Supreme Court. b) High Court A decision of a High Court judge is binding on inferior courts, that is, the subordinate courts and local courts, but not technically on another High Court judge. In practice High Court judges are reluctant to depart from the decisions of other high court judges. c) The Supreme Court Decisions of the Supreme Court are binding on the High Court judges (including the Industrial Relations Court), subordinate courts and all other inferior courts such as the local courts. The supreme court is bound by its own previous decisions with the exception of two instances;

I) II)

Where there are compelling reasons to depart from its earlier decision Where a decision of the Supreme Court was given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account to be demonstrably wrong".

Persuasive precedent:

Precedents that are not technically binding may be cited as persuasive authorities. The extent to which a precedent will be persuasive may depend on a variety of factors including,

the status of the court, the country in which the court is located, and the reputation of the judge.

Distinguishing between binding and persuasive A precedent, whether persuasive or binding, need not be applied or followed if it can be distinguished, that is, if it can be shown that there is a material distinction between the facts of the precedent case and the case in question. What counts as a material distinction is obviously crucial. The judge in the later case is expected to explain why the distinction is such as to justify the application of a different rule. There is no test or set of tests for whether a distinction is legally relevant. It all depends upon the circumstances of the case.

3. CASES IN ZAMBIA:

ZAMBIA CONSOLIDATED COPPER MINES LIMITED vs PATRICK MULEMWA (1995) This matter was herd in the Supreme Court on the 11th of may 1995 and the 31st of October, 1995. (SCZ.JUDGMENT NO. 15 of 1995) In which the respondent was dismissed from employment by the appellant on grounds of misuse of company property and giving a false statement against a subordinate. The respondent brought an action against the appellant in the Industrial Relations Court. The Industrial Relations Court found that the respondent had done nothing wrong and nullified the dismissal. The court further found that the respondent had been discriminated against on grounds of social status. The court also expressed disagreement with the Supreme Court on the definition of social status stating that social status referred to one's standing in the employment hierarchy only. On appeal, Held: (i) Until such time as an earlier decision of the Supreme Court is upset by the Supreme Court itself, such decision remains binding on all other courts

(ii)

The Industrial Relations Court in this case was not in a position to say that in their

view the words 'social status' in section 198 of the Industrial Relations Act referred to the appellant's position in the hierarchy of the company

(iii)

Discrimination per se is not a ground for making an order for reinstatement; the principle of stare decisis applies and the Industrial Relations Court had no power to reinstate in this case

This case was referred to that of Ngwira vs Zambia National Insurance Brokers Ltd S.C.Z judgment No. 15 of 1994. In this case the appellant was charged with negligence resulting in the loss of company property and gross abuse of office, the particulars of which were that he, being head of personnel and administration, manipulated the tender procedure for several company vehicles to some members of staff at unrealistic low prices thereby occasioning financial loss to the company. A disciplinary committee found that the appellant had been guilty as charged and recommended that he be dismissed. The Managing Director, however, changed the punishment to ordinary termination of services, which meant that the appellant was able to receive some benefits on termination of contract which would otherwise have been lost. In an action before the Industrial Relations Court, the court refused to order reinstatement of the appellant and he appealed. It is clearly evident that judgments made were with consideration to precedence of similar cases. THE PEOPLE vs EDWARD JACK SHAMWANA AND 12 OTHERS (1982) Z.R. 122 (H.C.) The case was herd in court on 22nd November, 1981 and 20th January,1983 Head note: The eight accused were charged with five others, with the offence of treason arising from eleven overt acts. One accused was also charged with misprision of treason but this was struck out after a preliminary objection. One accused was struck off the information on account of illness. At the close of the prosecution case, and after submissions of no case to answer, four of the accused were acquitted. The defence case rested mainly on proof of the case against them beyond reasonable doubt. Several issues arose during the trial Held: (i) Misprision of treason being an invisible alternative charge and hence a minor offence maybe struck off before pleas are taken without misleading the defence or amounting to an acquittal.

(ii)

The High Court has the power to itself amend an information to fit the evidence given without application by, or consultation with the parties involved provided no injustice is caused to the accused such as may result when the substantive charge is altered even at the no case to answer stage. And reference to the wrong section as the source of power for the court to amend the information does not nullify the power so existing.

This case was referred to the case of Emmanuel Phiri and Others vs the people held on 10th,13th January,1979,and 5th January,1978. The evidence given by each accomplice was uncorroborated. The court mainly depended on the evidence given by the accused. The appellants were convicted of aggravated robbery; it was alleged that two of them were carrying a sub-machine gun and a pistol respectively and stole a cash box containing K20,000 in cheques and a sum of money in cash. The third man involved was the driver of the get away car. The appeals against the conviction of the three appellants were dismissed and they were sentenced to fifty years imprisonment with hard labour.

4. CONCLUSION A judge cannot decide, as a legislator does, as he pleases. He must apply some standard, whether it be that of a previous decision, or the opinions of legal writers, or the Roman law, or equity, or some other consideration, This is where the importance of precedents comes in.

REFERENCE 1. Kakad,j.(1978) THE ZAMBIA LAW REPORTS published by the council of law reporting, Lusaka.