1st Edition

Postcolonial Legality: Law, Power and Politics in Zambia

By Jeremy Gould Copyright 2023

    This book interrogates the ideology and practices of liberal constitutionalism in the Zambian postcolony. The analysis focuses on the residual political and governmental effects of an imperial form of power, embodied in the person of the republican president, termed here prerogativism. Through systematic, long-term ethnographic engagement with Zambian constitutionalist activists – lawyers, judges and civic leaders – the study examines how prerogativism has shaped the postcolonial political landscape and limited the possibilities of constitutional liberalism. This is revealed in the ways that repeated efforts to reform the constitution have sidelined popular participation and thus failed to address the deep divide between a small elite stratum (from which the constitutional activists are drawn) and the marginalized masses of the population. Along the way, the study documents the intimate interpenetration of political and legal action and examines how prerogativism delimits the political engagements of elite actors. Special attention is given to the reluctance of legal activists to engage with popular politics and to the conservative ethos that undermines efforts to pursue a jurisprudence of transformational constitutionalism in the findings of the Constitutional Court. The work contributes to the rising interest in applying socio-legal analysis to the statutory domain in postcolonial jurisdictions. It offers a pioneering attempt to deconstruct the amorphous and ambivalent assemblage of ideas and practices related to constitutionalism through detailed ethnographic interrogation. It will appeal to scholars, students and practitioners with an interest in theorizing challenges to political liberalism in postcolonial contexts, as well as in rethinking the methodological toolbox of socio-legal analysis.



    Preliminary issues

    1 Problems and paradoxes


    Sources and resources


    Politico-legal paradoxes

    Paradoxes of liberalism

    Presidential paradoxes

    Paradoxes of constitutionalism

    2 Unthinking the postcolonial state

    Imperial liberalism and postcolonial illiberalism

    Constituting (post)colonial government

    Misreading liberal power

    The neopatrimonial stain

    Exception as an art of government

    A prerogativist form of power

    Prerogativism and the politico-legal domain

    The paradoxical demos

    Constituent vs constituted power

    The elusive exception

    3 Constitutionalism as an ethnographic object

    The Zambian context

    Ethnographic encounters

    A makeshift toolkit

    Domains of legal knowledge

    Doctrinal legality

    Socio-legal alternatives

    Custom vs law

    The ends of law

    4 Between the decision and the demos: Activist lawyers and constituent power

    Perspectives on postcolonial constitutionalism

    The time and place for legal expertise

    Ethics and legal expertise

    The prerogativist perspective

    The will of the people

    On ‘going to the people’


    Legal activism and constitutionalism

    The paradox of non-partisan politics


    A genealogy of postcolonial power

    5 Imperial constitutionalism 1924–1996


    From Northern Rhodesia to Zambia’s First Republic

    Independence constitution

    One-party constitution

    Constitutional deadlock

    Reactions to the 1996 constitution

    Popular constitutional politics

    6 The Oasis Forum and the emergence of liberal constitutionalism

    Chiluba loses his grip

    Lawyers step up

    The legalization of the Oasis Forum

    The Mwanawasa years and beyond

    The 2016 Amendment Act

    Constitutional closure: The death of Bill 10


    Law, politics and unfettered power

    Excursus: Redescribing postcolonial power

    Colonial emergency and postcolonial jurisprudence

    The president’s two bodies

    The monarch’s colonial regent

    A profile of imperial power

    Adventures of prerogativism in space/time

    7 ‘Lawfully illegal’

    Part I: A tale of two trials

    The specter of presidentialism

    The spoils of security

    Act 1: Deposing the DPP

    Politics of governance

    Act 2: Trials of a president

    The matrix of plunder

    One crime, two verdicts

    Part II: The paradoxical sovereignty of the postcolony

    Innocence and guilt

    The case for executive interference

    The president’s (not quite) two bodies revisited

    8 In the shadows of prerogativism

    Managing the migration of power

    A slippery baton

    A tale of two tribunals

    Disciplining the Patriotic Front

    Legalism vs political contingency

    Dora Siliya’s electoral blues

    In the name of exception: The Kabimba Tribunal

    Wynter Kabimba’s stationary collision

    The contours of postcolonial legality

    9 The allure of postcolonial legality

    Principled pragmatism revisited

    A time to sow: The seeds of prerogativism

    Nolle controversies

    Unfettered discretion?

    A time to reap

    Liberal absurdities

    Progress vs purpose


    A new hope?

    10 Decolonizing the republic

    A constituent presidency?

    Another missed opportunity

    A transformative jurisprudence?

    Professor Munalula dissents

    Law’s purposes

    The power of principles

    A postliberal legality?

    Postliberal trajectories

    11 Coda

    The limits of liberal legality

    A constituent politics of refounding?

    The incrementalist option

    The case for a progressive postliberalism

    In closing


    Source materials



    Jeremy Gould is Professor Emeritus of Development Studies, and an Adjunct Professor in Social and Cultural Anthropology based at the University of Helsinki, Finland.