Criminal Justice System in Zambia

CHAPTER ONE

Criminal Justice System in Zambia

1.0 INTRODUCTION

This paper analyses Criminal Justice System in Zambia. In this work an

analysis is made in three main stages of Criminal Justice System namely

pre-trial, trial and post-trial stages in a case. A Criminal Justice System

consists of an application of relevant laws in a situation given. The

researcher will consider Acts of Parliament which are a basis of provisions

for institutions of the Criminal Justice System, criminal law evidence law

and procedure. These include: the Constitution of Zambia1 which provides

inter alia the establishment of institutions in a Criminal Justice System,

penal Code2 which provides for acts considered as crime, the Witchcraft

Act3, the Narcotic Drugs and Psychotropic Substances Act4 and many others

which make provision of an act described as crime.

The Criminal Procedure Code5 is an Act that provides for procedure in

Criminal Justice System from pre-trial to the end of proceedings of a case in

Court. It is also used for appeal process. When the institutions mandated

with investigations of crime have concluded with investigations and all the

1 Chapter 1 of the Laws of Zambia




5 Chapter 88 of the Laws of Zambia 1

rules of evidence are followed, a case is taken to Court following the

Criminal Procedure Code6.

1.2 Statement of Problem

The general objective of the study is to develop a general tool for analyzing

Criminal Justice System in Zambia that is better than the tools which are

currently described in literature. There is need to have a fair Criminal Justice

System in our country. Considering the facilities for delivery of Criminal

Justice in terms of number of Courts and prison space is yet another area for

allowing a smooth study of Criminal Justice System in Zambia.

Zambia is a democracy. There is need for the public to receive good services

from institutions that run a Criminal Justice System, such as the Police,

Prosecutors, Adjudicators, Lawyers and Prison Officers who are major

players of any given criminal justice system. To achieve this, there should be

an analysis of a Criminal Justice System. The system should not promote

arbitrary conditions in police cells and correctional facilities. Courts too

should not be a mockery of justice but administered by the rule of law.

1.3 Research significance

• Understanding the role of the police: The analysis might be performed to

understand the role of the police in the existing criminal justice system. It is

very important for the legislators to understand the role and aspirations of

the Police in order to make and enact new laws, or improving upon the 6 Ibid note 5

2

existing legislation. Under-standing police work will help in making certain

decisions. For example, to come up with a reasonable and specific period of

time, the police are supposed to detain somebody on suspicion of crime in a

new Criminal Justice System.

• Understand the role of the courts: Part of the effort in the development of

an effective Criminal Justice System goes into the evaluation of the system.

This can be achieved by considering legislation applied in a Criminal Justice

System. For the analysis, based on what is obtaining or otherwise, to be

reliable, one has to analyze, understand and correctly apply the law.

• Other reasons: There are other reasons for analyzing a Criminal Justice

System. A lawyer and prosecutor can perform the analysis to understand the

applicable legislation in the Criminal Justice System. It is important to

understand the system when representing either party in a criminal litigation,

be it state or accused. It is also important for officers in correctional facilities

to understand their role in the system and apply them correctly in order to

achieve desired results.

1.4. Research Questions

In this research it is important to consider some questions in order to

evaluate the effectiveness of the study. The questions to consider are as

follows:

3

1. Does legislation protect crime suspects from ill treatment by Police in the

pre trial stage of the Criminal Justice System in order to adhere to human

rights principles?;

2. Is the workload for crime investigators evenly distributed among

departments of Governments to curb overload and promote efficiency?;

3. Does the Court hierarchy offer a solution to a reliable appeal process and

offer enough and manageable human resource?;

4. Is the objective of punishment the end of a Criminal Justice System?; and

5. Whether the legal aid board’s role is fair enough to all citizens in the

Country?

1.5. Literature Review

In developing this paper a review of available literature from national and

international sources on the institutions which run the Criminal Justice

System in the Zambian context was undertaken. The desk research was

complemented by semi-structured interviews with key stakeholder groups

and collection of experiences from people in the field that represent

government departments which run the criminal justice system.

1.6 Methods used for research

Data for this research has been mainly obtained and analysed by others

though not in the context of the system as a whole. Data was also collected

from public records. In addition to this, the data obtained has been subjected

to the research questions the researcher formulated in order to find a

4

conclusion to the study undertaken and be able to make well reasoned

recommendations based on accurate prevailing circumstances.

1.7 Research Design

The rest of the work in this study proceeds as follows:

Chapter one

The first chapter is a general introduction which gives an outlook of what the

research is about. It looks on what the Criminal Justice System is, it also

looks at the statement of the problem, scope of study, objectives and

significance of the research, research questions and methodology.

Chapter two

This chapter explores in detail how Police conduct their investigations, and

reviews human rights bottlenecks in the system and examines crime

statistics. In this study, there is a legal burden which rests on the

prosecutions to prove a case beyond any reasonable doubt for a conviction to

be secured in Court. The accused person on the other hand has no duty to

prove that he is innocent. This requirement should be left independent of

undue influence which may lead the accused person to make incriminating

statements or indeed the Police to rely on the accused’s confession. It should

also not make the investigators to have a dereliction of duty in the mandate

given to them to establish the guilt of an accused through gathering of

evidence beyond any reasonable doubt. It should also ensure that legislators

are not bias and ensure that the system is followed to avoid technical 5

acquittals on appeal in Courts of law and also ensure a speedy, fair and just

system is followed.

Chapter three

This chapter will look at the institutional framework of the judicature, the

provisions of the Criminal Procedure Code Act7 and discuss the imbalances

and uncertainty that arises in legislation at trial stage.

Chapter four

The chapter discusses the post-trial stage. This involves different forms of

punishments given to convicts and the decision for acquittal; it examines the

treatment of convicts in correctional facilities and treatment of released

convicts who unfortunately still remain under police spotlight despite having

served punishment.

Chapter five

The chapter notes that Legal aid board and its role in the criminal justice

system in Zambia is not adequately made available as is the case with

investigative institutions pursuing to establish the guilty of crime suspects.

The chapter will examine the role of the legal aid board and examine its

effectiveness in the Criminal Justice System. It also gives a summary and

the writer’s point of view on what a Criminal Justice System ought to be.

CHAPTER TWO

7 Ibid note 56

Pre-trial stage in Criminal Justice System

2.0 INTRODUCTION

According to Collingwood8, as the British Empire extended its territorial

reach, many of the Anglo-Indian Codes were also implemented in East and

Central Africa, including in Zambia.

The historical background of the Zambian Criminal Justice System comes

from her colonial masters, the British. There are several similarities, in

criminal circles, in the former colonies of Britain, such as Malawi, Kenya,

Tanzania (Tanganyika and Zanzibar), and Uganda.

This chapter discusses how Police officers conduct their investigations, and

highlights human rights bottlenecks in the system. Section 2.1 highlights

institutions which are authorised to carry out criminal investigations in

Zambia. Section 2.2 lists police regulations in the process of arrest, search

and detention. Section 2.3 discusses police investigations and disposal of

cases and the use of force by police in their investigations.

2.1 Institutional Structure of Investigative Authorities in Zambian Criminal

Justice System

8 Collingwood. J. J. R. (1967) Criminal Law of East and Central Africa .London: Sweet and Maxwell.7

The constitution of Zambia9 gives Zambia Police a mandate to maintain law

and order which involves the investigation of crime suspects, apprehension,

detention in police cells, and release or taking to court for further

proceedings. Zambia Police Act10 provides for the organisation, functions

and discipline of the Zambia Police Force and of special constables and for

matters incidental thereto.

Alongside the Zambia Police are other institutions which also investigate

crime and take suspects to court. These include the Drug Enforcement

Commission whose functions are covered under section 5 of the Narcotic

Drugs and Psychotropic Substances Act11 which states:

“The functions of the Commission shall be to- (a)collect, collate and

disseminate information on narcotic drugs and psychotropic

substances; (b) receive and investigate any complaint of alleged or

suspected breach of this Act and, subject to the directives of the

Director of Public Prosecutions, prosecute for offences under this Act;

(c) address and advise Government Ministries and departments, public

bodies, companies, institutions, statutory bodies and corporations on

ways and means of preventing prohibited activities relating to narcotic

drugs and psychotropic substances and suggest measures, procedures

or methods of work compatible with the proper performance of their

duties which, in the opinion of the Commission, would reduce

prohibited activities relating to narcotic drugs and psychotropic

9 Article 104 of the Constitution of Zambia

10 Chapter 107 of the laws of Zambia

11 Chapter 96 of the laws of Zambia8

substances; (d)disseminate information intended to educate the public

on the evils and dangerous effects of abusing drugs or psychotropic

substances and the effect of dealing in property acquired from drug

trafficking; and (e)enlist and foster public support against the abuse of

drugs or psychotropic substances and, in this connection, liaise with

similar authorities outside Zambia.”

Other investigative authorities in Zambia also include: The Anti-Corruption

Commission, and the Zambia Wildlife Authority.

These institutions conduct investigations and decide which cases are taken

for prosecutions depending on the evidence available despite the

Constitution of Zambia12 giving such powers to the Director of Public

Prosecutions (DPP).

2.1.1 Positive Features of the System in the institutional structure

The Criminal Justice System in Zambia has some good progressive features

pertaining to institutions with the power to investigate crime. Section 86(2)13

gives power to the Director of Public Prosecutions to appoint any person

employed in the public service to be a public prosecutor for the purposes of

any proceedings instituted on behalf of the People. This enables the system

to have enough human resource of unprofessional personnel in legal matters

to handle criminal trials in subordinate courts, personnel with basic

knowledge in criminal law. This is a merit to the system in the sence that the

government has not attracted lawyers to work in all subordinate courts in the 12 Article 56 (3) Chapter 1 of the Laws of Zambia

13 Ibid note 59

country as prosecutors. This is attributed to the cost which is involved in

assigning highly skilled personnel throughout the country.

2.1.2 Shortcomings of the Criminal Justice System in Institutional Framework

The lack of supervision of police prosecutors by the Director of Public

Prosecutions; lack of, or limited, follow-up of cases by police prosecutors;

and, lack of transport to transfer case files between police stations and DPP

offices is still the characteristic of the investigating institutions in pre-trial

phase in Zambia and this disadvantages the crime suspect who will have to

wait in custody for the procedure to be completed14, especially with

remandees facing capital offences which are tried only by the High Court.

The research reviewed that under-staffing of the DPP’s chambers is evident

as there are still no permanent High Court sessions in other provincial

centres. The DPPs chambers are only permanently located in Lusaka,

Kabwe, Ndola, and Livingstone.

Lack of autonomy of the DPP in relation to the Ministry of Justice is another

problem, though an Act of Parliament15was passed recently which provides

for autonomy under section 616, which states:

“Except as otherwise provided in this Act, the Authority shall not, in

the performance of its functions, be subject to the direction or control

14 Open society initiative for Southern Africa: Publication Monday 25 2011

15 The National Prosecutions Act number 34 of 2010

16 Ibid note 1510

of any person or authority, other than the Director of Public

Prosecutions”

The institution is however practically not yet independent from other

ministries as prosecutors in subordinate Courts are still on the different

payrolls of government wings like Zambia Police, Ati-corruption

Commission, Drug Enforcement commission and Zambia Wildlife

Authority.

2.2 Powers of arrest, search and detention by Police

2.2.1 Powers of arrest

According to section 2617, the Zambia police have powers to arrest in

various ways. The police also use service instructions which are a police

manual book which outlines the duties of a police officer in his/her day to

day duties. Following Police manual18, an arrest means the taking of a person

into custody to answer according to law for some specified offence.

The principle of individual liberty is one of the core principles from which

all human rights flow. To this effect police service instruction19 gives a guide

to the effect that “except when a warrant of arrest has been issued, the

accused person need not be arrested when the offence with which he is


18 Zambia Police instructions ed. (2010)

19 Ibid note 1811

charged is not very serious, and the name and address of the accused are

known.”20

The principles of liberty, legality and necessity underlie all the specific

provisions on an arrest. Section 33 (1)21 gives a clear guide on detention of

persons arrested without warrant. The Constitution of Zambia and other

legislation regulating the Criminal Justice System provides a sufficient

framework for regulating pre-trial detention and fair-trial rights. The

legislation provides for bail according to section 3022 which states:

“A police officer making an arrest without a warrant shall, without

unnecessary delay and subject to the provisions herein contained as to

bail, take or send the person arrested before a magistrate having

jurisdiction in the case or before an officer in charge of a police

station.”

Due process guarantees; the right to be informed of the reasons for arrest

according to Article 13(2),23 and compensation for unlawful arrest24; and the

right to be brought to court within 24 hours.

Courts in Zambia have given guidance on the subject of maximum period

for detention in M Mutemwa v Attorney General25 where it was held that

20 Ibid note 18


22 Ibid

23 Constitution of Zambia Chapter 1 of the Laws of Zambia

24 Article 13 (4) Chapter 1 of the Laws of Zambia

25 M Mutemwa v Attorney General (1979) ZR 251(HC)12

under section 33 of the Criminal Procedure Code if a person is taken into

custody without warrant for an offence other than one punishable with death

she must be brought before court within twenty - four hours or else be

released on bond.

2.2.2 Police Search

According to section 23 of the Criminal Procedure Code26

“any police officer may stop, search and detain any vessel, aircraft or

vehicle in or upon which there shall be reason to suspect that

anything stolen or unlawfully obtained may be found and also any

person who may be reasonably suspected of having in his possession

or conveying in any manner anything stolen or unlawfully obtained,

and may seize any such thing.”

Section 15 of the Zambia Police Act27 also gives power to the police to

conduct a search and specifies the jurisdiction for the search. When

conducting a search under this section there is no warrant required. However

in certain cases police will require a search warrant. This was decided in the

case of Patel v Attorney General28 where on a question of fundamental

rights, Section 22 of the Constitution was construed as regards the position

of customs officer when acting pursuant to regulation 35 of the Exchange

Control Regulations.



28 (1968) ZR 99 HC13

It was held that a customs officer who opens a postal packet without first

obtaining a search warrant does so at his own risk; and if the packet turns out

to be "correspondence" within the meaning of section 22 of the Constitution,

there will have been a breach of the sender's rights under section 22 which

will be the personal responsibility of the customs officer.

This case demonstrates that a search for suspicion of crime is not always

open without warrant but a warrant is necessary in some instances. This

applies to all investigating authorities. By section 22 of the Criminal

Procedure code29police are also required to search suspects before detaining

them in police cells and keep all articles found on accused.

2.2.3 Conditions of detention- Police cells

While legislation provides for some good practices as identified, the

overwhelming picture on the ground is that conditions of detention are poor,

violate the rights of detainees in material ways and frequently exceed the 24-

hour rule. There is no active government institution that checks on the police

to see to it that every arrested person appears within 24 hours. The ageing

state of many Zambia police stations (many are more than 40 years old) for

example Nyimba Police Station30Petauke Police station31 , just to mention a

few. This causes the insufficient capacity and nature of cell accommodation

as the population has grown over time, the cause of many of the major

concerns.


30 Which was gazetted on 6th July, 1978 under gazette number 374

31 which was gazetted on 11th June, 1965 under gazette number 47/6514

2.3 Police investigations

2.3.1 Dockets

Zambia Police instructions32 provides for headings under which police can

close cases reported before it as charge refused33, false on inquiry34,

withdrawn35 and closed undetected36 but this document is not an Act of

Parliament and is used as police duties.

2.3.2 Police inquiry

The Constitution of Zambia provides for the functions of the Zambia police

service, these functions call for the police to carryout interviews to anyone in

order to find the author of a crime committed or prevent its occurrence.

Crime suspects are equally interviewed before they are put in custody and

whilst in custody to find from them what they may know about an

allegation.

32 Zambia Police manual book 2010 page 53

33 Where the case is one in which criminal proceedings would not properly be instituted by the police (i.e where a prosecution would not be in the public interest).

34 When after investigation, the complaint is revealed as being without foundation.

35 By complainant, when the identity of the accused is known and the case against him exists, but the complainant makes a written request for the case to be drawn and the police agree to that request; or for other reasons e.g accused died, or accused not located.

36 When everything reasonably possible has been done, but a charge cannot be brought, for reasons which do not fall within the other categories

15

In Daniel Chizoka Mbandangoma v The Attorney General37, the plaintiff

was detained on the 24th December 1973, and released shortly thereafter on

police bond. He was however required to and did report to the police and at

court on at least four subsequent occasions when he was eventually told that

further proceedings were being discontinued. The attendance to the police

had been arranged to coincide with the occasions when the police wished to

see the plaintiff for purposes of investigations.

It was held that:

“It is improper for the police to detain persons pending further

investigations without bringing them before court as soon as

practicable, but it is equally improper to require persons released on

bond to present themselves at the police station for the same purpose.”

Police inquiry is expected at law to be concluded before a suspect is finally

detained. This is because the reason for detention depends on conclusive

investigations.

Inducement, torture or threat to accused by the police is not allowed. The

Courts ensure that if a confession is part of the state’s evidence, it must be

given freely and voluntarily by accused as was the decision in the case of

The People v Obino38 where the court held that:

“The prosecution bears the burden of proving that the accused's

confession was made voluntarily.”

37Daniel Chizoka Mbandangoma v The Attorney General (1979) ZR 45 HC

38 The people v Obino (1968) ZR 40 (HC) p 4116

As a guide in criminal investigations, police use the judges rules which

should be followed and the courts in Zambia will not allow a confession

obtained without adherence to the judges rules as was the case in Chulu v

The People39 where the court held that:

“A breach of the Judges' Rules in the obtaining of a confession from

the accused raises a reasonable doubt as to the freedom or

voluntariness of the confession.”

Although, of course, the Judges' Rules are merely administrative and

advisory, and a breach of them does not automatically invalidate anything

done in pursuance thereof. It does, however, raise a presumption of

irregularity and a suspicion that justice has not been done as was the

observation of the court in Chulu v The People40.

2.3.3 Use of force during Arrest by Police

Article 12(3)(b)(c)(d) of the Constitution of Zambia41 and section 24 of the

Zambia Police Act42 regulate the use of force by police in arrest. In this case

police can use force proportionally. It is therefore not logical to maim a

suspect charged with use of insulting language43 which carries a penalty of

three months Imprisonment, but it is proportional to maim an accused

39 Chulu v The People (1969) ZR 128 (HC)

40 Ibid note 39

41 Ibid


43 Section 179 chapter 87 of the Laws of Zambia17

charged with treason44 which carries a death penalty if such use of force is

within the parameters regulated by law.

The table bellow shows that in crimes of murder and aggravated robbery,

criminals use firearms which justifies the use of firearms by police too as it

is proportionate to the nature of crime committed. The difficulty faced by the

researcher in data collection of statistics is lack of updated data by police

however the research is not on individual years but the trend of use of

firearms.

Violent crime statistics in Zambia 1998-

2003

Source: Daily incident reports, Zambia Police

2.3.4 Release on bail/bond

44 Section 43 chapter 87 of the Laws of Zambia18

Year Crime Cases Reported

No.

of

firearms

1998 Murder

Aggravated robbery

458

698

65

709

1999 Murder

Aggravated robbery

291

664

31

667

2000 Murder

Aggravated robbery

322

732

42

649

2001 Murder

Aggravated robbery

267

447

27

522

2002 Murder

Aggravated robbery

196

627

74

668

Jan-

Aug

2003

Murder

Aggravated robbery

145

372

25

347

The Zambia Police is guided by legislation in matters of police bond under

section 54 of the Criminal Procedure Code45

“The bond to be executed by any such person shall bind him to keep

the peace or to be of good behaviour, as the case may be, and, in the

later case, the commission or attempt to commit, or the aiding,

counseling or procuring the commission of any offence punishable

with imprisonment, wherever it may be committed, shall be a breach

of the bond”

The bond issued by police should be free according to section 19 of the

Zambia Police Act.46 In the case of The people v Benjamin Sikwiti Chitungu

Joseph Antonio Arthur and David Mazuma47 MUZYAMBA J had this to

say:

“(i) since a police bond does not automatically cease once the accused

appears in court, the Court has the power to inquire into the reason for

cancellation of the bond and if the reasons are inadequate to issue or

extend bail.”

In this case the court analysed legislation pertaining to police bond and made

the position clear, it is legally right for the police to cancel a police bond

issued by them to an accused but the reasons for cancelation of such bond

must be convincing. It is also the duty of the court to inquire into the reason

for cancellation.



47 (1990-1992) ZR 190 (HC)19

CONCLUSION

This chapter has examined the pre-trial stage of the Criminal Justice System

in Zambia. It is submitted that the system has some good features. The Act is

flexible on the Qualification of prosecutors in the subordinate Courts.

Investigations are handled on a basis of specialization in terms of institutions

as regards drug related crime for Drug Enforcement Commission, Wildlife

related crime for Zambia Wildlife Authority and penal code crimes for

Zambia Police. The issue of respect for human rights has been highlighted

and the chapter analyses that there is no guarantee of respect for human

rights in the system during pre-trial phase of criminal justice system in

Zambia.

CHAPTER THREE

The Trial Stage in the Criminal Justice System

20

3.0 Introduction

Courts have played a vital and leading role in justice delivery. However,

experience has shown that sometimes litigation is a seemingly endless

exercise and self-torturing ordeal. Serious concerns have repeatedly been

expressed over spiraling costs and fees and delays in litigation procedures,

congestion in Courts, the all-too legalistic procedures, and the intimidating

court-room atmosphere. This chapter analyses the court process in criminal

trials. Section 3.1 of this chapter deals with the Court structure in Zambia,

this is a study which looks at the Court hierarch. Section 3.2 discusses the

criminal procedure as regards commencement of criminal proceeding

Section 3.3 deals with bail provisions. Section 3.4 discusses the process of

criminal trial.

3.1 The Court Structure

The judicature in Zambia is a creation of the Constitution of Zambia under

Article 9148. A rigid procedure is set out in Article 1849 and in the Criminal

Procedure Code that is intended to ensure that impartiality and the rule of

law prevail in the criminal justice system. The emphasis is on procedural

justice.

3.1.1 Supreme Court of Zambia


49 Ibid21

The Supreme Court was created in terms of Article 9250 and the Supreme

Court of Zambia Act, 1973 (Act 41 of 1973)51. It is the final court of appeal

with supervisory jurisdiction over all other courts.

“The Supreme Court has no original jurisdiction and therefore does

not hear matters as a Court of first instance, except in the case of

presidential election petitions.”52

3.1.1.1 Jurisdiction of the Supreme Court of Zambia

The Supreme Court of Zambia Act53 provides for the composition of the

Court under section 354 which states that:

“When the Court is determining any matter, other than an

interlocutory matter, it shall be composed of such uneven number of

Judges, not being less than three, as the Chief Justice may direct.”

The Court hears appeals from the High Court in both civil and criminal

matters and closely follows the current procedure in England according to

section 855. The Court sits not regularly and not everywhere as section 1056

puts it.

50 Ibid


52 Monograph 159: The Criminal Justice System in Zambia. Enhancing the Delivery of Security in Africa > Chapter 5: The courts: http://www.iss.co.za

53 Ibid note 53

54 Ibid note 51


56 Ibid22

http://www.iss.co.za/

http://www.iss.co.za/pgcontent.php?UID=2607



“Criminal appeals may be made against the lower Courts’ findings of

fact, law or sentence imposed, although no appeal will lie against any

sentence the imposition of which is fixed by law”57.

The Court may hear and admit evidence, can allow the appellant bail

according to section 2258 and may summon witnesses to testify before it

according to Supreme Court Rule number 39. It can dismiss a frivolous

appeal summarily according to section 2159 but where an appeal is actually

heard, the appellant has a right to be present during the proceedings.

There are certain appeals from the Subordinate Court relating to criminal

convictions in which the Supreme Court is the court of first appeal according

to section 12(2)60.

3.1.2 The High Court of Zambia

The High Court, created in terms of Article 94,61 and the High Court Act,

1960 (Act 41 of 1960)62. According to section 963 it states that:

“The Court shall be a Superior Court of Record, and, in addition to

any other jurisdiction conferred by the Constitution and by this or any

57 Section 12 chapter 25 of the Laws of Zambia


59 Ibid

60 Ibid

61 Constitution of Zambia Act Chapter 1 of the Laws of Zambia


63 Ibid note 6223

other written law, shall, within the limits and subject as in this Act

mentioned, possess and exercise all the jurisdiction, powers and

authorities vested in the High Court of Justice in England.”

The Court has unlimited original and appellate jurisdiction to hear any

matter, whether civil or criminal, including issues arising from the

Constitution. The procedure followed in High Court adjudication is guided

by the rules set out in the High Court Act and the Criminal Procedure Code.

The High Court may hear appeals from the Subordinate Courts or transfer

cases for hearing to such lower Courts as it deems fit. Certain issues, such as

constitutional claims, treason, Murder aggravated robbery etc must

commence in the High Court.

3.1.3. Subordinate Courts

As the court of first instance the Subordinate Court, which was established

in terms of the Subordinate Courts Act, 1933 (Act 33 of 1933)64, as

amended, hears most civil and criminal cases because its procedure is

relatively simple and it can adjudicate matters much more quickly than the

High Court. Cases of corruption are thus likely to commence in the

Subordinate Court. Indeed, many of the high-profile criminal cases in the

news headlines, such as the Chiluba case65, are tried in the Subordinate

Court.


65 Zambia’s Second Republican President24

The Court is presided over by magistrates of different ranks or classes.

These ranks determine how much power the court has both in terms of the

matters it may handle and in terms of the length of punishment that it can

adjudicate upon. The Court has the power to hear a dispute and pronounce a

binding ruling or impose a sentence of punishment, as the case may be.

3.1.4 The Local Courts

The institution of Local Courts is provided for under the Local Courts Act66.

These courts are at the base of the hierarchical judicial system. According to

a paper presented by the then Zambia’s minister of justice who was also

Attorney General,67 there are about 454 local courts in Zambia. The Judicial

Service Commission appoints the local court justices. Local courts are

divided into grades A and B and their jurisdiction is limited according to the

grade which the court warrant assigns to them. The Local Courts criminal

jurisdiction is limited to cases such as simple thefts and common assaults.

Whenever a Local Court is seized with the conduct of a civil or criminal

matter in which a party wishes to be represented by a lawyer, that matter is

immediately transferred to the Subordinate Courts for trial because lawyers

have no right of audience in the Local Courts.68

3.2. Instituting (commencement) of Criminal Proceedings

66 Chapter 29 0f the laws of Zambia

67 George Kunda. Zambia’s Initial State Report on the implementation of the African Charter on Human and People’s Rights.

68www.achpr.org/english/state-reports/40-Zambia 25

http://www.achpr.org/english/state-reports/40-Zambia

There are two ways by which criminal proceedings may be commenced

according to section 90 of the Criminal procedure code Act69,

“Proceedings may be instituted either by the making of a complaint or

by the bringing before a magistrate of a person who has been arrested

without warrant”.

The first method and not usually used calls for the swearing of a complaint

before the Magistrate in accordance to section 90(4)70 followed by issuing of

summons to the accused person according to section 9171.

The second method is by arresting the accused person without a warrant and

bringing her/him to Court. At this stage when accused appears before court

she/he has the liberty to plead guilty or not guilty. She/he can also be

released on bail though no bail lies in certain cases like murder, aggravated

robbery etc.

3.3 Bail

Bail conditions are provided for under section 12372. It provides that bail can

be granted upon providing a surety or sureties sufficient, in the opinion of



71 Ibid

72 Ibid26

the police officer concerned or Court, to secure his appearance, or be

released upon his own recognizance if such officer or Court thinks fit.

According to the dictionary of law,73

“Bail is the release by the police, magistrates' court, or Crown Court

of a person held in legal custody while awaiting trial or appealing

against a criminal conviction.”

Bail therefore is a means of keeping the deprivation of liberty of the

individual at a minimum during the period before conviction. A golden

mean however, must be found between the two extremes of upholding

personal freedom and guarding the interests of justice, which will suffer if

the accused should abscond before trial.

3.4. The criminal trial

In criminal cases the burden of proof throughout trial rests on the

prosecutions to establish the case against the accused beyond all reasonable

doubt. If the Court has a doubt then it must acquit. This was established in

the case of Woolmington V DPP74.

The prosecution must put before the court all the circumstances of the

prisoner's arrest, particularly anything in exculpation said by the prisoner at

that time.75

73 Oxford Dictionary of Law 5th ed. (2001).London: Oxford University Press.

74(1935)AC 462

75 Chikopo v the People (1969) ZR 89 (HC)27

This paper observes that there are three main stages in criminal trial which

are regulated by rules of evidence. The case of Sikota v The People76 gives a

summary guide to the procedure in criminal trial in these words:

“Prosecution witness is examined by the prosecutor, cross examined

by each accused in turn in the order in which named in the charge -

sheet, finally re-examined by prosecution. Accused who gives

evidence to be examined in turn, cross - examined by their co -

accused and then by the prosecutor, and finally re-examined.”

There is an optional procedure of submission for a case to answer by the

state or no case to answer for the defence. This is done at close of case for

prosecutions. The court then makes a ruling and if a prima facie case is

established accused is put on his defence. In the case of The People v Japau77

it was held that a submission of Case to answer can only be upheld if there is

prima facie evidence. The Court78 stated that the test is:

“[1] there is a case to answer if the prosecution evidence is such that a

reasonable tribunal might convict upon it if no explanation were

offered by the defence. [2] A submission of no case may properly be

upheld: (a) If an essential element of the alleged offence has not been

proved; and (b) When the prosecution evidence has been so

76 [1968] ZR 42 (HC)

77 (1967) ZR 95 HC

78 Ibid28

discredited by cross-examination or is so manifestly unreliable that no

reasonable tribunal could safely convict on it”.

Accused also adduces evidence using the same procedure used by the state.

Her/his evidence can be given in three ways which is her/his right either to

give a sworn testimony, unsworn testimony or remain silent. In R v Villers,79

it was held that the accused must be informed of his right to give evidence.

This is a duty of the Court. This paper looks at three types of examination in

the criminal justice system which are examination in chief, cross

examination and Re-examination.

3.4.1 Examination in Chief

According to the dictionary of law,80 examination in chief is the questioning

of a witness by the party who called him to give evidence. Evidence given in

court through examination in chief is guided by laws of evidence. In

defining evidence, Best81 states that it is any matter of fact, the effect,

tendency or design of which is to produce in the mind a persuasive or

disaffirmative of the existence of some other matter of fact. Section 19182

states that:

“except as otherwise expressly provided, all evidence taken in any

inquiry or trial under this Code shall be taken in the presence of the

79(1927) 20 Cr, App. R. 150

80 Oxford Dictionary of Law 7th ed. (2009).London: Oxford University Press.

81 Best.W.M.(1866).A Treatise on the Principles of the Law of Evidence. (4 th ed.). London: Sweet & Maxwell.

82 The criminal Procedure Code Chapter 88 of the Laws of Zambia29

accused, or, when his personal attendance has been dispensed with, in

the presence of his advocate (if any).”

This is how the procedure is regulated.

3.4.2 Cross Examination

During the trial the accused has the right either personally or through his or

her lawyer to cross-examine the prosecution witnesses.83 Section 205(2)84

states:

“The accused person or his advocate may put questions to each witness

produced against him.”

There has been widespread support for the concept of cross-examination

where it has been stated to be:

“beyond any doubt the greatest legal engine ever invented for the

discovery of truth.”85

Criminal justice system depends on rules of evidence as regards cross

examination just as the case is with examination in chief.

3.4.3 Re-Examination

Where re-examination takes place, the rules that apply in examination in

chief also apply so that, a witness cannot be asked leading question.83Kunda.G. Zambia’s Initial State Report on the implementation of the African Charter on Human and People’s Rights.

84 Criminal Procedure Code Chapter 88 of the Laws of Zambia

85 Evidence (Chadbourn Rev., 1974) Vol. V, p. 32).30

3.5 Disposal of case before Court

Cases are taken to court for no any other reason other than a smooth

disposal. This can be done under several headings which this paper looks at.

3.5.1 Withdrawal of complaint

The expected results in a court of law include conviction, acquittal and

withdrawal of case under several headings. The Criminal Procedure Code in

Zambia provides for reconciliation according to section 886. Another

provision on withdrawal of complaint in court is provided for under section

20187 this is done where complainant wants to be reconciled to the accused

person, also under section 8888where a complaint can be withdrawn by the

state if evidence is not sufficient but accused person can be re-arrested, and

section 19989 where if accused appears for court session and the witnesses

who are aware of the date, time and place have not come the court may

dismiss the charge.

The Director of Public Prosecutions (DPP) has power under section 81 of

the Criminal Procedure Code90 to have a case discontinued in court by

entering a nolle prosequi.

86 Criminal Procedure Code Chapter 87 of the Laws of Zambia

87 Ibid

88 Ibid

89 Ibid

90 Ibid31

3.5.2 Acquittal of accused Person

The Criminal Procedure Code under section 206 provides for acquittal

before defence and at judgment stage according to section 21491. The system

guarantees a constitutional protection against double jeopardy. According to

Article 18(5) of the Constitution a person cannot be tried again for an

offence of which he has been acquitted, or an offence of which he would

have been convicted at his first trial.

3.6 Forms of Punishment

According to section 21492 The court, having heard both the complainant and

the accused person and their witnesses and evidence, shall either convict the

accused and pass sentence upon or make an order against him, according to

law, or shall acquit him. Section 2493 provides for different punishments

which include:

“death; imprisonment; fine; forfeiture; payment of compensation;

finding security to keep the peace and be of good behaviour, or to

come up for judgment; deportation; and any other punishment

provided by the Code or by any other law.”

This chapter highlights forms of punishment as a way to dispose a case in

court but a detailed study of theories of punishment and the objectives for


92 Ibid


punishment is done in chapter four, however section 2494 was construed by

the Court in John Banda Vs. the People HPA/6/1998 case, where the

Appellant pleaded guilty to and was convicted of malicious damage to

property. In addition to one month simple imprisonment suspended for

twelve months, the Appellant was ordered to receive ten strokes of the cane

in accordance with Sections 24 (c) and 27 of the Penal Code, which

provided for corporal punishment. In holding Sections 24 (c) and 27 of the

Penal Code as unconstitutional, Justice E. E. Chulu stated:

“Upon consideration of the law before me, I hasten to point out that

the Republican Constitution, which is a written Constitution of

Zambia, is the Supreme law of the land, and consequently, all other

laws derive their force of law from it, and are therefore subordinated

to it. This being the legal position, it cannot therefore be doubted that

unless the Constitution is specifically amended, any provisions of an

Act of Parliament that contravenes provisions of the Constitution is

null and void. Article 15 of the Constitution is couched in very clear

and unambiguous language, that no person shall be subjected to

torture or to inhuman or degrading punishment or other like treatment.

On the contrary, it cannot be doubted that the provisions of Section 24

(c) and 27 of the Penal Code which permit the infliction or imposition

of corporal punishment of offenders are in total contravention, and

conflict with the above provisions of Article 15 of the Constitution.”

This decision, by the Court in Zambia demonstrates how the judiciary

checks the unconstitutional provisions in the statutes in Zambia. To this 94 Ibid

33

effect, the criminal justice system does not allow inhuman treatment in form

of punishment to any convict. This goes further to apply to any disciplinary

tribunal constituted in the laws of Zambia. A school disciplinary measure

can therefore not include corporal punishment on the strength of this case.

CONCLUSION

The luck of permanent High court sessions in some provinces creates

overcrowding in prisons and this is the case with magistrate’s courts which

are not available in some districts. The trial stage in the criminal justice

system in Zambia exposes imbalances in court sessions. Whilst the state is

represented by a prosecutor who is trained in criminal law and rules of

evidence, accused is not guaranteed with legal aid unless he seeks to have

legal counsel. A prosecutor has limited power of withdrawing cases in court

as it requires leave of the court in most provisions for withdrawal. Bail

conditions are too rigid and focus more on victim protection and this

compromises the presumption of innocence that is guaranteed by the

Constitution of Zambia.

CHAPTER FOUR

Theories of Punishment and Prison Conditions in Zambia

4.0 INTRODUCTION

The chapter discusses the post trial stage. This involves different forms of

punishments given to convicts; it examines the treatment of convicts in

correctional facilities and treatment of released convicts who unfortunately

still remain under police spotlight despite having served punishment. Section

34

4.1 of this chapter discusses theories of punishment which are aimed to be

achieved in the punishment given. Section 4.2 examines prison conditions in

Zambia and discusses how released prisoners are treated.

4.1 Theories of Punishment

Punishment is defined by Kulusika95 in these words: “punishment is a

response of the criminal law, on behalf of the society, to a defendant’s

wrongful behaviour.” Punishment is supported by theories which Kulusika96

lists as retributive theory, preventive and deterrent theory and reformative or

rehabilitative theory.

The criminal justice system therefore seeks to achieve vengeance or

expiation in the retributive theory. It refers to giving the offender his or her

just deserts. The case of Kalenga v The People97 gives light to this fact in the

court’s decision to substitute a sentence of 18 months Simple imprisonment

with 2 years imprisonment with hard labour when the court held that a court

should determine the proper sentence for the crime committed irrespective

of any question of compensation to the victim.

Kalenga v The People98 also guides on the principle of deterrence. The court

held that the sentencing judge should take into account the frequency of an

offence in the community as one factor tending to support a severe

95 Kulusika.S.E.(2006).Text Cases and Material on Criminal Law in Zambia.Lusaka:UNZA Press. Page 795

96 Ibid page 800-801

97 (1968) ZR 165 (HC)

98 Ibid35

punishment. This is aimed at making would be offenders to fear committing

crime in future, hence preventing crime.

In Chiwama v The People99 the court held that a person serving a period of

detention in a reformatory, the object being reformation of his character

should not be given corporal punishment for an offence committed prior to

his entry into the reformatory. This case demonstrates the objective of

reformatory school as reformation hence achieving the theories of

punishment listed by Kulusika100.

4.2 Prison conditions in Zambia

Zambia has a total of 86 prisons. Thirty-three are "open-air," or farm prisons

and 53 are "standard" prisons. Juvenile and female prisoners are incarcerated

in facilities throughout the country as well as in one dedicated juvenile

prison and another exclusively female prison.101

According to Winslow102

“Zambia’s Prison conditions are harsh and life threatening. According

to official statistics, prisons designed to hold 5,330 prisoners held

more than 12,741. This severe overcrowding, combined with poor

sanitation, inadequate medical facilities, meager food supplies, and

99 (1967) ZR 184 (HC)

100 Ibid

101 Journal of the International Aids Society www.jiasociety.org

102 Winslow.R.(Dr).A Comparative Criminology Tour of the World. [email protected] 36

mailto:World.%20%[email protected]

http://www.jiasociety.org/

lack of potable water resulted in serious outbreaks of dysentery and

other diseases, including tuberculosis.”

The remandees are kept in overcrowded prisons and are held together with

convicted criminals under extremely inhumane conditions. The inhumane

conditions violate the Constitutional provisions which proscribe any person

from being subjected to torture or inhuman or degrading punishment or other

like treatment. The general observation of this paper indicates that prison

conditions are poor in Zambia. There is congestion in correctional facilities

and cases take long to be disposed in courts of law hence remandees are kept

for a long time.

4.2.1 Treatment of Released convicts

Police regulations103 state : “(1) attention will be paid to the following

persons, known as recidivists, on release from prison or on arrival in the

republic from elsewhere: (b) police supervisees; (c) convicts and juveniles

on license; (d) habitual criminals; and (e) deportees with major convictions”

The manual gives administrative procedures on how to handle released

prisoners in the categories stated104. Following retributive theory of

punishment a released prisoner is considered to have paid for his/her just

deserts. The attention made by police to released convicts is discriminating.

Article 65 of the constitution of Zambia105 states:

103 Zambia police instructions 2010 edition page 106

104 ibid

105 Chapter 137

“(1) A person shall not be qualified to be elected as a member of the

National Assembly if- (f) that person, within a period of five years

before his nomination for election, has served a sentence of

imprisonment for a criminal offence.”

This also is another provision of the law that indicates that imprisonment is

not in itself the end of payment for the crime committed but society

discriminates a convict.

CONCLUSION

Most prisons in Zambia were built in the colonial time when Zambia’s

population was about three million. The population has increased steadily

and this impacts greatly on prison conditions. There is little space in prisons.

Zambia’s criminal justice system lacks a well elaborated alternative for

punishment away from the traditional incarceration in prison.

38

CHAPTER FIVE

The Legal aid Board’s Role, Summary and Recommendations

5.0 INTRODUCTION

This chapter examines the role of the legal aid board and its effectiveness in

the criminal justice system in section 5.1. It also gives a summary and the

writer’s point of view on what a criminal justice system ought to be in

section 5.2.

5.1 The Role of the Legal Aid Board

Chapter 34 of the Laws of Zambia is “An Act to provide for the granting of

legal aid in civil and criminal matters and causes to persons whose means

are inadequate to enable them to engage practitioners to represent them; and

39

to provide for matters connected with or incidental to the foregoing.”106 “A

person charged with a serious criminal offence is automatically”107 granted

legal aid unless that person is able to retain the services of a private legal

practitioner.

In 2000, the Legal Aid Act was amended to provide for a Legal Aid Board

and a Legal Aid Fund. Private legal practitioners may in addition undertake

the representation of legally aided persons for a small fee. The fee is met

under a Legal Aid Fund established for the purpose. This was done in an

attempt to improve legal aid, due to various constraints experienced by the

Legal Aid Department, which was unable to cope with the huge number of

cases.

5.2 Summary

The players in the criminal justice system in Zambia are the Police; they

include customs officers, immigration officers, anti-corruption officers,

ZAWA officers, Zambia Police officers etc. The criminal justice system also

involves magistrates and judges. Also involved are prosecutors and lawyers.

These groups of officers are actively involved in the Pre-trial, trial and post-

trial stages of the Criminal justice system. Criminal justice is sensitive as it

hinges on the respect for human rights. Liberty is at the centre of the system

as such the public pay particular attention to the conduct of officers in the

criminal justice system.

106 Preamble of the Legal Aid Act Chapter 34 of the laws of Zambia

107 Section 8 of the legal aid Act Chapter 34 of the laws of Zambia40

This research found out that the pre-trial stage which involves investigating

departments face challenges. There is no adequate transport to carryout

investigations in a speedy manner that requires a suspect to appear before

court within 24 hours of arrest. The police cells space is not adequate to

meet the demand for detention in a growing population which attracts a

rising number of crime suspects.

The judicature is not adequately accessible to all. Some provinces still have

mobile High Court sessions and judges live in Lusaka. This is the case even

for some of the districts which do not have resident magistrates. In places

where there are magistrates, these adjudicators are under stuffed. This is a

cause for delays in judgment delivery hence creating congestion in prisons.

Prosecutorial functions are handled by people who are in the same

hierarchical system with investigating officers. This makes the court system

not to fair as a prosecutor is not an officer of the Court. His/her attachment is

more on the investigating officers and not standing on a plain level field.

Prison conditions are also not good. The infrastructure is old and does not

accommodate prisoners adequately. This is a concern as the right to good

health is compromised.

The researcher also noticed that technological development has not been

fully utilized in the criminal justice system. The method of serving

summonses has not been updated to include serving of summonses through

41

e-mail or phone. This could make an improved and cost effective way of

preparing for court session.

Finally the researcher observed that the legal aid board is under staffed and

does not make justice accessible to all. Subordinate courts are usually not

covered by officers from the legal aid.

5.3 Recommendations

There is need to continuously train police officers in courses that teach

respect for human rights in order to promote the respect for human rights in

the pre-trial stage of the criminal justice system.

There is need to amend legislation providing for the 24 four hour rule as

maximum period for detaining a crime suspects before appearing in court.

This is because the cost attached to investigations is high, and it is usually

not practical to conclude investigations in 24 hours.

There should be an autonomous body that ensures that police conduct

investigations according to law and that detention laws are not abused and

this body should be in all districts. Currently the human rights commission is

not effective.

There is need to build new police stations in order to have adequate space in

police cells.

42

The current court structure and establishment is not adequate to ensure

speedy and fair trial. For this there is need to build more Court rooms, and

appoint more magistrates and judges.

The Criminal Procedure Code at section 8 should be amended to involve the

victim, and prosecutor to participate in matters of reconciliation and not to

leave it done at the discretion of the Court.

The police are not supposed to carry out prosecutorial functions but this

should be left entirely to the DPP and the office should be autonomous.

There is need for guidance in sentencing and not entirely depend on Courts

that impose varying sentences as regards facts of a case and the gravity of

the offence committed, situation that promotes unmeritorious and

unexplained decisions in Courts.

There is need to increase powers of the Subordinate Courts in sentencing

and to allow them handle trial for murder and other capital offences

currently tried by the High Court in order to have speedy disposal of cases.

In the post criminal justice stage, there is limited prison space and the

solution in the middle term calls for limiting sentences to community service

in petty cases. In the long term, there is need to build more prisons.

The prison service should be viable and self supportive in order to improve

conditions for prisoners from the profits made by the service.

There is need to change all legislations that consider released convicts as

criminals. This can be done by limiting the time for observation to 2 years. It

would help keep qualified and skilled people in government who are

convicted and serve punishment and later face dismissal.

The legal aid board should be available to all at district level in order to

balance the court process.

43

The Evidence Act108 needs to be updated and include most of the common

law rules governing evidence in the criminal justice system to be codified.

Whereas criminal law has a source from Acts of parliament and whereas as

Criminal Procedure is codified under chapter 88 of the laws of Zambia,

evidence law is not conclusively codified hence the need for codification.

BIBLIOGRAPHY

Best.W.M.(1866).A Treatise on the Principles of the Law of Evidence. (4 th ed.).

Daily incident reports, Zambia Police.

Evidence (Chadbourn Rev., 1974) Vol. V, p. 32).

Kulusika.S.E.(2006).Text Cases and Material on Criminal Law in

Zambia.Lusaka:UNZA Press.

Kunda.G. Zambia’s Initial State Report on the implementation of the African

Charter on Human and People’s Rights.

London: Sweet & Maxwell. Collingwood. J. J. R. (1967) Criminal Law of East and

Central Africa .London: Sweet and Maxwell.


Open society initiative for Southern Africa: Publication Monday 25 2011

Oxford Dictionary of Law 5th ed. (2001).London: Oxford University Press.

Oxford Dictionary of Law 7th ed. (2009).London: Oxford University Press.

Zambia Police instructions ed. (2010)

TABLE OF CASES

Chikopo v the People (1969) ZR 89 (HC)

Chiwama v the people (1967) ZR 184 (HC)

Chulu v the people (1969) ZR 128 (HC)

Daniel Chizoka Mbandangoma v The Attorney General (1979) ZR 45 HC

Kalenga v the people (1968) ZR 165 (HC)

M Mutemwa v Attorney General (1979) ZR 251(HC)

Patel v Attorney General (1968) ZR 99 HC

R v Villers (1927) 20 Cr, App. R. 150

Sikota v the People [1968] ZR 42 (HC)

The people v Benjamin Sikwiti Chitungu Joseph Antonio Arthur and David

Mazuma (1990-1992) ZR 190 (HC)

T P v Japau (1967) ZR 95 HC

The people v Obino (1968) ZR 40 (HC)

45

Woolmington V DPP (1935) AC 462

TABLE OF STATUTES

Criminal Procedure Code Act Chapter 88 of the Laws of Zambia

Evidence Act Chapter 43 of the laws of Zambia

George Kunda. Zambia’s Initial State Report on the implementation of the African

High Court Act, 1960 (Act 41 of 1960) Chapter 27 of the Laws of Zambia

Legal aid Act Chapter 34 of the laws of Zambia

Local Courts Act chapter 29 of the Laws of Zambia

Subordinate Courts Act chapter 28 of the Laws of Zambia

The constitution of Zambia Act Chapter 1 of the laws of Zambia

The National Prosecutions Act number 34 of 2010

Penal code chapter 87 of the laws of Zambia

Witchcraft Act Chapter 90 of the Laws of Zambia

Narcotic Drugs and Psychotropic Substances Act chapter 96 of the Laws of

Zambia

Supreme Court of Zambia Act, 1973 (Act 41 of 1973) Chapter 25 of the Laws of

Zambia

Zambia Police Act Chapter 107 of the Laws of Zambia

46

STATUTORY INSTRUMENTS

Government Gazette number 374 (1978)

Government Gazette number 47/65 (1965)

INTERNATIONAL INSTRUMENTS

Charter on Human and People’s Rights

INTERNET SOURCES

Dr. Patrick Matibini ACCESS TO JUSTICE AND THE RULE OF LAW an issue

paper presented for the commission on legal empowerment of the

poor:www.undp.org/legalempowerment

Journal of the International Aids Society www.jiasociety.org

www.achpr.org/english/state-reports/40-Zambia

Post newspaper of Wednesday 5th January, 2011 www.postZambia.com

47

http://www.postZambia.com/

http://www.achpr.org/english/state-reports/40-Zambia

http://www.jiasociety.org/

http://www.undp.org/legalempowerment

Criminal Justice System in Zambia

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