The short answer is: not in every situation.
Many people assume that because a lawyer is a Commissioner for Oaths or a Notary Public, they can automatically commission, certify, or authenticate any document prepared or handled by their law firm.
However, Zambian law places important restrictions on the exercise of these powers, particularly where the lawyer or law firm is involved in the proceedings or has an interest in the matter.
What Does the Law Say?
The Commissioners for Oaths Act, Chapter 33 of the Laws of Zambia, gives a Commissioner for Oaths authority to administer oaths and take affidavits or declarations for purposes of a court or other matter in Zambia.
However, the law expressly restricts a Commissioner for Oaths from exercising these powers in proceedings where the commissioner:
- Is the solicitor for any of the parties to the proceedings;
- Is a clerk to the solicitor acting for a party; or
- Has an interest in the proceedings.
The purpose of this restriction is to protect the independence and integrity of the commissioning process.
Can a Lawyer Commission an Affidavit Prepared by Their Own Law Firm?
Where a law firm is acting for a party in court proceedings, a Commissioner for Oaths who is the solicitor for that party should not commission an affidavit in those proceedings.
Similarly, the restriction extends to a clerk of the solicitor acting for a party.
This means that an affidavit prepared for a client’s court case should ordinarily be taken before an independent Commissioner for Oaths who is not restricted by the law from acting in that proceeding.
The fact that a person is qualified or appointed as a Commissioner for Oaths does not remove the statutory restriction where that person is acting as solicitor for a party or is otherwise interested in the proceedings.
Why Is Independence Important?
Commissioning an affidavit is more than simply signing and stamping a document.
The Commissioner for Oaths is responsible for administering the oath or taking the affidavit or declaration. The law also requires the jurat or attestation to correctly state the place and date on which the oath or affidavit was taken.
The High Court Rules further regulate the manner in which affidavits are sworn, including the signing of the affidavit before the Commissioner and the proper completion of the jurat.
Independence helps protect the credibility of the oath-taking process and reduces questions concerning conflicts of interest.
What About Certifying Documents as True Copies?
It is important to distinguish commissioning an affidavit from certifying or authenticating a document.
Not every lawyer automatically exercises the full functions of a Notary Public.
Under the Notaries Public and Notarial Functions Act, Chapter 35 of the Laws of Zambia, a Notary Public may verify, authenticate, and attest the execution of deeds and other documents using an official notarial seal.
The law provides for the appointment and enrolment of Notaries Public and sets out their specific statutory functions.
Therefore, where formal notarial authentication or certification is required, the document should be handled by a person legally authorised to perform the relevant notarial function.
Can a Notary Public Certify Documents in a Matter Where Their Law Firm Is Involved?
The law also places restrictions on Notaries Public.
A Notary Public or authorised person must not exercise notarial functions in proceedings or a matter in which the notary, their partner, or their employer is interested personally or as a legal practitioner acting for one of the parties.
This is an important safeguard against conflicts of interest.
Accordingly, a law firm should carefully consider whether its involvement in a matter prevents a lawyer within the firm from performing the required notarial function.
Does a Law Firm Stamp Automatically Make a Document Certified?
No.
Placing a law firm’s stamp on a document does not automatically make the document commissioned, certified, or notarised.
The person performing the act must have the appropriate legal authority to do so and must act within the limits of that authority.
The correct legal procedure depends on whether the document requires:
- Commissioning before a Commissioner for Oaths;
- Certification or authentication;
- Notarial attestation;
- Witnessing of a signature; or
- Another form of statutory verification.
These processes should not be treated as interchangeable.
What Happens If a Document Is Improperly Commissioned?
An improperly commissioned affidavit may face an objection during legal proceedings.
Questions may arise regarding the validity or admissibility of the affidavit and whether the required legal procedure was followed.
This may result in unnecessary applications, delays, additional legal costs, or procedural disputes.
For this reason, lawyers and litigants should ensure that affidavits and other documents are commissioned or authenticated by the appropriate authorised person.
Key Points to Remember
- A law firm cannot automatically commission every document relating to its own matters.
- A Commissioner for Oaths must observe the restrictions imposed by the Commissioners for Oaths Act.
- A Commissioner should not exercise commissioning powers in proceedings where they are the solicitor for a party, a clerk to such solicitor, or otherwise interested.
- Commissioning an affidavit is different from certifying or authenticating a document.
- Notarial functions must be performed by a legally authorised Notary Public or other authorised person.
- A Notary Public is also restricted from acting where the notary, their partner, or employer has the prohibited interest in the matter.
- A law firm’s stamp alone does not legally certify or commission a document.
- Where there is a conflict or statutory restriction, an independent authorised person should perform the required act.
Conclusion
The authority to commission, certify, or authenticate documents is governed by law. The fact that a document was prepared by a law firm does not mean that the same law firm can automatically commission or authenticate it.
The nature of the document, the legal function being performed, and the law firm’s involvement in the matter must all be considered.
Understanding these distinctions helps protect the integrity of legal documents and prevents avoidable procedural disputes.
Patrick Chulu Legal Practitioners (PC|LP)
Integrity • Courage • Excellence
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For general legal information only. Not legal advice.