Zambia’s highest court has delivered a new decision that ends more than four decades during which government occupied prime private land, land that was never paid for and that the state appeared to think it could hold and use, indefinitely. It’s a judgment of major importance: the judges make clear that the state won’t be shown any favours by the court, and that the government is bound by the constitution – and must obey the law – just like everyone else.
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In its last judgment of 2025, Zambia’s highest court delivered a decision that’s a beacon of hope for this new year. The decision held government to account, righted a wrong that had been allowed to continue four decades, and chided the high court for taking an approach that could help boost the perception that the state, however vague its claims, would find it easier to win a case in court than ordinary citizens.
‘The bottom line,’ said the supreme court, ‘is that no court should ever play along with government’s gamesmanship, for that would indeed be to create a new legal regime in which no right is safe.’
Zambia’s state of emergency
The story leading to this judgment began more than four decades ago at a time when the country’s borders were attacked from several quarters. One periodic target was a refugee centre to the west of Luanda, a province that borders Mozambique and Zimbabwe.
Faced with this problem, and apparently authorised by the on-going state of emergency in Zambia, the Zambia National Service (ZNS), part of the country’s defence force, occupied a section of a farm near the refugee camp. The farm was privately owned – its owner at the time was Lendor Burton – and for the next 44 years at least, the ZNS has continued its occupation of more than 70 ha of the farm, erecting permanent buildings and other structures. But the government has made no effort to formalise the occupation of the land by the ZNS despite the landowner’s repeated expressions of concern.
At some stage, the entire farm was sold to the Rephidim Institute (RI), a privately owned and run school, now the registered owner of the property. When the RI initiated legal action in the high court against the government, the institute explained that it had been trying to get the ZNS to formalise its occupation of the land, by purchasing it from the RI. In 2008, according to the RI, ZNS said it wanted to buy the land, and the institute went to considerable trouble and expense to have site plans, survey diagrams and a valuation report prepared. But then negotiations stalled and the ZNS refused to pay.
Government ‘had already acquired the land’
For its part, the ZNS claimed the government had already ‘acquired’ the land that the ZNS was using. According to the ZNS, the RI now wanted the government to buy land that already ‘belonged’ to the state.
The institute lost its case in the high court, then appealed, but was again unsuccessful.
During October 2025, the RI made a last effort, asking three judges of the supreme court, Zambia’s apex legal forum, for their view on the dispute.
In their judgment, delivered late December, the judges begin their decision with this paragraph, outlining their view of the case:
‘The imperatives of national security have in the present case collided with the sanctity of private property rights to give rise to intriguing and delicate questions: can a state security agency, in the name of safeguarding the realm, occupy private land and remain in occupation indefinitely without satisfying any formal process of land acquisition, release, negotiation or compensation?’
‘Deeply troubling’ order by the appeal court
The supreme court was critical of the judgments in both the high court and the appeal court, saying that an order made by the appeal court in the matter was ‘deeply troubling as it appeared to disregard established legal precedent …’.
Without any ‘plausible basis’ the appeal court assumed that ZNS, merely by its occupation of the land, ‘had acquired a legal or equitable interest’, the supreme court wrote. But ZNS had ‘no documentation explaining its occupation or any legal right in the land’. And while ZNS had no registered interest, there was abundant evidence that ‘legal ownership reposed’ in the RI, meaning that there was no possibility of a ‘legal ownership claim over the land’ by ZNS.
No automatic right by government to remain indefinitely
The three judges said ZNS was ‘neither a squatter nor a trespasser’. It took occupation of the disputed land with the knowledge of the then owner of the land ‘for the stated purpose of providing security and as such obtained no ownership rights.’
This meant that the landowner could revoke permission at any time, with reasonable notice. ‘ZNS did not acquire any automatic right to remain on the land indefinitely or to claim ownership rights to the land.’ And while ZNS could have used Zambia’s constitutional and statutory scheme for compulsory acquisition of the property, it did not do so.
The judges added, ‘The power to dispossess a citizen of his land against his will is clearly not to be exercised lightly and without good and sufficient cause, even in … a state of emergency.’
The Zambian constitution was careful to protect private property, and individuals couldn’t be deprived of property except through the proper legal steps. If the government had wanted to acquire permanent ownership of the land occupied by ZNS there was a law under which it could do so – but it provided for compensation, the judges stressed.
‘Merit’ in claim for compensation
What happened in this case was ‘compulsory acquisition gone wrong’, and allowing ZNS to remain in occupation of land belonging to the RI without compensation ‘goes against all the laws that proscribe deprivation of an individual’s property without compensation’.
The judges also said that, in terms of previous court decisions, if ZNS refused to pay for the land it could not demand compensation for buildings and other improvements that it made to the land it had occupied.
They concluded that there was ‘merit’ in the RI claim for compensation. As a result, they held that ZNS must pay for the land at its current commercial value, as established by a neutral valuation surveyor. Payment must be made within six months and ownership transferred immediately after that.
If, however, ZNS failed to pay for the land within the time framework established by the court, it was to quit the property, leaving behind all the ‘unexhausted improvements’ for which it would be paid no compensation.
ZNS was also to pay the costs of the valuator and the surveyors’ costs for the initial application as well as the legal costs of the initial case and the two appeals.
Zambian judiciary subtext: we will ensure state respects the constitution
Having found in favour of the RI claim the court added this crucial paragraph: ‘To hold otherwise would be to further an existential threat to the rule of law. It would be an open invitation for the government or its agencies to bypass clear constitutional and statutory provisions at the expense of respecting citizens’ legal and constitutional rights.’
The judgment gives clear notice that the judiciary will ensure the state respects the constitution and obeys the law. In many parts of East Africa, judicial independence is often uncertain, with some political leaders even instructing judges about the running of cases. For these countries particularly, this new Zambian judgment must surely shine like a beacon.
- Written on 2 January, 2026