INTRODUCTION
The courts are the means through which substantive justice is administered. They have the duty to enforce and interpret the law that is enacted by the parliament. In doing so, the courts have a duty to ensure that justice is administered within the quickest possible time to the satisfaction of the parties. In order to achieve this, the courts must pay less attention to the procedural technicalities at the expense of substantive justice. The objective of this legal paper is to discuss the effect of Article 118 (2) (e) of the constitution of Zambia (Amendment) Act No.2 of 2016 with regards to the delivery of justice in Zambia. To begin with, the paper will first define the various key terms such as substantive justice, justice, procedural law and substantive law. The paper will then differentiate substantive law and procedural law. It will further proceed to discuss the relevance of procedural (legal) technicalities and then later on discuss the problem of courts strictly adhering to the procedural technicalities at the expense of substantive justice. A comprehensive conclusion will then be deducted based on the discussion. DEFINITION OF KEY TERMS
The term justice basically means fairness in the manner in which justice is administered. It basically entails a moral ideal that the law seeks to uphold with regards to the protection of rights and the mode of punishment imposed on the offenders for the wrongs done. Justice means equality, fairness and equity.
Substantive justice means justice that is administered in accordance with the rules of substantive, regardless of any procedural error without affecting the litigant’s substantive right; a fair trial on merit.
Substantive law is that part of law that is concerned with establishing the legal rights and duties of the litigants in any suit, whereas procedural law on the other hand is concerned with the means and methods that are used to enforce substantive law. This basically entails that procedural law consists of the set of rules that govern the proceedings of the court in criminal lawsuits as well as civil and administrative proceedings. The courts must conform to the standards setup by procedural during the proceedings. Adherence to procedural law ensures fair practice and consistency in the due process. Substantive law on the other hand is a statutory law which deals with the legal relationship between people or the people and the state. It defines the rights and duties of the people, but procedural law lays down the rules with the help of which they are enforced.
In the case of Access Bank (Zambia) Limited v Group Five/ Zcon Business Park Joint Venture, it was stated the word phrase ‘undue regard’ as used in Article 118 (2) (e) of the Constitution imports excessive regard to technicalities. The phrase does not mean that regard must not be given to technicalities but that regard must be given and not excessively. Regard must only be given where ignoring such technicalities would impede the administration of substantive justice. However, in Tanzanian cases of Lushoto Tea Co. v Tanzania Tea Blenders and Majembe Auction Mart Ltd v. Tango Transport Co. Ltd and Tanzania Revenue Authority, the Court of appeal unequivocally expounded the need for Courts to make procedural rules. In the above cases, it was stated that Courts cannot function properly without procedural rules. It was further stated that a court without a code of rules or procedure is an invitation to chaos. Furthermore, the Chief Justice of Tanzania, Mr. Justice Mohamed Othman Chande pointed out that “procedural justice constitutes another imperative challenge to the system of administration of justice. It has a direct influence on the delivery of justice. With reference to Article 107A (1) (e) of the Constitution of Tanzania which enjoins the courts to dispense justice without being tied up with undue procedural technicalities, Justice Mohamed further stated that “we must deal away with antiquated, time consuming and redundant procedures. They serve no purpose. Substantive justice must be rendered without unwarranted or excessive procedures. Not every procedural requirement is essential or goes to the root of cause or matter.”
This basically entails that inasmuch as adhering to the legal (procedural) technicalities is sometimes necessary to ensure that substantive justice is delivered, the procedural rules ought not to hamper or be ironclad in the delivery of substantive justice. One of the attributes of a good legal system is speedy and expedient delivery of justice, therefore, less attention must be given to the legal technicalities so as to achieve and deliver justice within the shortest period of time possible. Another attribute is the inexpensiveness. This means that if much regard is given to legal or procedural technicalities then the litigation is more likely to take longer than necessary thereby delaying the proceedings and this will then in turn be costly and time consuming to the aggrieved parties (litigants). Lastly, it can be affirmatively stated that much regard to legal technicalities would mean obstruction to substantive justice thereby leading to the public lose confidence in the law.
Section 68 (2) of the Rules of the Supreme Court Act provides for sanctions that are attracted in an instance where litigants fail to comply with Court’s Procedural rule. The sanction is that litigants who fail to comply will have their case dismissed to that effect. Reliance on this rule was illustrated in the case of NFC Mining Plc v. Techpro Zambia Ltd in which it was stated that failure to comply with court rules by litigants could be fatal to their case. In the same case, it was stated that court rules are meant to facilitate the administration of justice in a proper and orderly manner as such they must be followed strictly.
The same principle was upheld in the case of Zambia Revenue Authority v Charles Muhau Massiye in which a case was dismissed on the basis of irregularities which went to the root of appeal.
Courts are established for the purposes of resolving disputes in the society. They have the duty of interpreting and enforcing the law enacted by the legislature. They further have the discretion to create rules that are inevitable in ensuring that the law is well interpreted and also to ensure that justice is served in that regard. However, inasmuch the courts have this discretion, the rules created by the courts must not in any way override the laws that are enacted by the law framers (legislature). As it well known the constitution as a source of is supreme over other laws, and that any other law that is inconsistent with it, shall to the extent of its inconsistence be rendered null or void. Bearing that in mind, the rules made the courts must not in any way take precedence over the constitution by the courts rigidly and strictly adhering to the legal (procedural) technicalities. Doing so would be tantamount to violation of the constitution which is the supreme law of the land.
The objective of courts is to decide the rights of the litigants and not punish them for omissions they make in their in the conduct of their cases unless such omissions are fraudulent or, intended to overreach. In order to achieve this, courts must determine case on their merits and in finality as opposed to procedural technicalities. Courts rules must not be placed on a higher pedestal than substantive law. This means that courts must not be so rigid in the way they apply their rules. Rules must not take precedent over substantive law, but they should be applied in facilitating the administration of justice. Matters before the courts must be decided on merits and not on legal technicalities. Cases should not be dismissed on the basis of procedural technicalities unless such technicalities or defects affects the validity of the proceeding.
With regards to the principle of finality, inasmuch as the courts have inherent jurisdiction to rescind, vary or alter their previous decisions, such jurisdiction must be exercised only in exceptional cases where the interests of justice so demands. They can exercise their inherent jurisdiction in instances where the interests of justice outweigh the equally essential principle of finality and functus officio.
Furthermore, in the case of Banda v The People it was stated that the need for certainty in the decision of the court and the undesirability of the routinely revisiting and altering courts judgements. This entails that the principle of finality to litigation is cardinal as it engenders certainty and predictability, which are attributes of a good legal system.
The courts have the discretion to exercise or to adhere to the legal technicalities for the purposes of ensuring that the matter brought before it is determined not based on assumptions but on factual matters. Section 25 (1) (b) (i) of the Supreme Court Act provides that:
On the hearing of an appeal in a Civil matter, the Court

(b) may, if it thinks it is necessary or expedient in the interest of justice

(i) Order the production of any document, exhibits or other things connected with the proceeding, the production of which appears to it necessary for the determination of the case.”
This basically entails that the court must not be deprived of the opportunity or the chance to consider or adhere to the procedural technicalities so long doing that would not in any way prevent the administration of substantive justice. Such legal technicalities must be allowed only to the extent that is necessary in the interest of justice and for the determination of matter before the court. The same principle was upheld in the case of Rosemary Bwalya, Attorney General and Commissioner of Lands v Mwanamuto in which it was stated that procedural technicalities such as making amendments must only be allowed to an extent that they do not impede the administration, and also where they are necessary to the interest of justice. In the same case, it was further stated that inasmuch as the court has this discretion, it ought to be exercised judiciously, for good and convincing reasons and that there must be no prejudice that would be occasioned in so doing to either parties.
The discretionary powers given to the courts with regards to legal procedures, it is worth to point out this discretion can be exercised in two instances: * On an application of a party to the proceeding * On the courts own motion.
In both instances the courts must ensure that they exercise such powers to occasion prejudice or cause a miscarriage of justice. An example of where the court had exercised such powers was illustrated in the case of Shamwana and 7 Others v The People in which it was held that the court had properly exercised its discretionary powers as the amendments that were done did not in any way alter the substance of the allegation but merely corrected a misdescription.
CAUSES OF LEGAL (PROCEDURAL) TECHNICALITIES
It is also of paramount importance to point out the major causes of procedural technicalities. Among them includes the misinterpretation of statutes and legal procedures. Interpretation of statutes and legal procedures are basically the major source of the legal technicalities that are faced with courts. As earlier stated, the courts have the duty or the role of interpreting statutes, therefore, in an attempt to do so judges may come up with different meanings as regards the interpretation of the statutes. Therefore, to avoid such, there is need for the law framers to words that can be easily understood by everyone to mean one thing.
Another cause of procedural technicalities are the way laws are drafted. This basically entails that one thing can be technical to one judge and but not the other. Technicalities basically depend on the perspective of a judge. Another cause would be caused by errors in procedures, uncertainty or absurdity in law, loopholes in law and failure of the court to comply Article 118 (2) (e) of the constitution.
Lastly another cause of procedural technicalities would be due to the ambiguity in facts of the case and interpretation of the law to suit the facts in a particular case.
IMPLICATIONS OF COURTS ADHERING TO PROCEDURAL STRICTLY
If courts adhere to procedural rules strictly and rigidly, one of the possible implication is the lack of confidence in the courts by all those who wish to be governed or protected by the law, and a large a confidence in the law by the law-breakers. This simply means that if courts strictly adhere to the procedural rules then there would be no administration of substantive justice. This will in turn encourage the law-breakers to continue breaking the law knowing fully that they will go unpunished for their wrongs.
Furthermore, the courts can cease to be seen as the medium or the instruments for enforcing the law. The courts would cease to be seen as the guardians of peoples’ rights, they would lose their value and the purpose for which they are created. Additionally, too much regard to the procedural technicalities would result in the encroachment on the litigants’ substantive rights.
CONCLUSION
For the foregoing reasons, it therefore stated affirmatively that Article 118 (2) (e) of the Constitution of Zambia (Amendment) Act No. 2 of 2016 does not literally mean that regard must not be given to legal technicalities but that they must not hinder the administration of justice. Procedural technicalities must instead be seen as handmaidens of justice. Rules of procedures’ must be used to help courts to expedite court business and not ironclad obstacles to all causes of actions in all circumstances. Placing of procedural technicalities on an equal footing with substantive law (justice) would lead to a gross violation of the litigants’ rights instead of determining and guarding the rights of the litigants. In addition, the objective of the aforementioned is not for the courts to strictly and rigidly adhere to procedural rules on expense of substantive justice.

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[ 1 ]. Garner, B A (2004), Black’s Law Dictionary, 8th Ed, West Publishing Company, USA, at p.881
[ 2 ]. ibid
[ 3 ]. Nyalali F. L (1994) The Changing Role of Tanzania Bar, Tanzania Lawyer, September-December 1991 p.4
[ 4 ]. [2014] SCZ/8/52
[ 5 ]. Civil Appeal No. 71 of 2004 (unreported)
[ 6 ]. Civil Appeal No. 88 of 2004 (unreported)
[ 7 ]. Mohamed Chande Othman (2012), Keynote Address of Chief Justice on the occasion of the Annual Conference of the Tanganyika Law Society, 17 February 2012, Arusha, Tanzania at p.21
[ 8 ]. munalula
[ 9 ]. ibid
[ 10 ]. Christine Mulundika case.
[ 11 ]. Costellow v. Somerset County Council [1993] ALL ER 952
[ 12 ]. Access Bank (Zambia) Ltd v Group Five/Zcon Business Park Joint Venture SCZ/8/2014
[ 13 ]. Zambia Revenue Authority v Jayesh Shah [2001] ZR 63
[ 14 ]. Finsbury Investments Ltd & Another v. Anthonio Manuela Ventrigia Appeal No. 11 of 2009
[ 15 ]. [1986] ZR 105
[ 16 ]. The Supreme Court Act, Chapter 25 of the Laws of Zambia.
[ 17 ]. SCZ Judgement No. 8 of 2012
[ 18 ]. [1985] Z.R 41 (S.C)