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 Chapter 87 of the Laws of Zambia Chapter 90 of the Laws of Zambia Chapter 96 of the Laws of Zambia Chapter 88 of the Laws of Zambia

2

3

4

5

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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

6

Ibid note 5

2

the Police in order to make and enact new laws, or improving upon the 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

3

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:
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 Whether the legal aid board’s role is fair enough to all citizens in the Country?

5.

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
4

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 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
5

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 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
7

Ibid note 5

6

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 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.

8

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

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2.1

Institutional Structure of Investigative Authorities in Zambian Criminal Justice System 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

9

Article 104 of the Constitution of Zambia Chapter 107 of the laws of Zambia Chapter 96 of the laws of Zambia

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11

8

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 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
12

Article 56 (3) Chapter 1 of the Laws of Zambia Ibid note 5

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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 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:
14

Open society initiative for Southern Africa: Publication Monday 25 2011 The National Prosecutions Act number 34 of 2010 Ibid note 15

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“Except as otherwise provided in this Act, the Authority shall not, in the performance of its functions, be subject to the direction or control 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 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

2.2.1 Powers of arrest

17

Chapter 88 of the Laws of Zambia Zambia Police instructions ed. (2010) Ibid note 18

18

19

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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 under section 33 of the Criminal Procedure Code if a person is taken into
20

Ibid note 18 Chapter 88 of the Laws of Zambia Ibid Constitution of Zambia Chapter 1 of the Laws of Zambia Article 13 (4) Chapter 1 of the Laws of Zambia M Mutemwa v Attorney General (1979) ZR 251(HC)

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25

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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. 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
26

Chapter 88 of the Laws of Zambia Chapter 107 of the Laws of Zambia (1968) ZR 99 HC

27

28

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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 24hour 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.

2.3
29

Police investigations

Chapter 88 of the Laws of Zambia Which was gazetted on 6th July, 1978 under gazette number 374 which was gazetted on 11th June, 1965 under gazette number 47/65

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31

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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. 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
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
37

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

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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.” 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:

38

The people v Obino (1968) ZR 40 (HC) p 41 Chulu v The People (1969) ZR 128 (HC)

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“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 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
40

Ibid note 39 Ibid Chapter 107 of the Laws of Zambia Section 179 chapter 87 of the Laws of Zambia Section 43 chapter 87 of the Laws of Zambia

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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.

Year

Crime

Cases

Reported No. of firearms 65 709 31 667 42 649 27 522 74 668 25 347

Violent crime statistics in Zambia 19982003

1998 1999 2000 2001 2002 JanAug 2003

Murder Aggravated robbery Murder Aggravated robbery Murder Aggravated robbery Murder Aggravated robbery Murder Aggravated robbery Murder Aggravated robbery

458 698 291 664 322 732 267 447 196 627 145 372

Source: Daily incident reports, Zambia Police

2.3.4 Release on bail/bond 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

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Chapter 88 of the Laws of Zambia

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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. 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
46

Chapter 107 of the Laws of Zambia (1990-1992) ZR 190 (HC)

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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 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
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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 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
48

Chapter 1 of the Laws of Zambia Ibid Ibid Chapter 25 of the laws of Zambia

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50

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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

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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. “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.

53

Ibid note 53 Ibid note 51 Chapter 25 of the Laws of Zambia Ibid Section 12 chapter 25 of the Laws of Zambia Chapter 25 of the Laws of Zambia Ibid

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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 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.

60

Ibid Constitution of Zambia Act Chapter 1 of the Laws of Zambia Chapter 27 of the laws of Zambia Ibid note 62

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62

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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. 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
64

Chapter 28 of the Laws of Zambia Zambia’s Second Republican President Chapter 29 0f the laws of Zambia

65

66

67

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

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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 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
68

www.achpr.org/english/state-reports/40-Zambia Chapter 88 of the Laws of Zambia Chapter 88 of the Laws of Zambia Ibid

69

70

71

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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 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.
72

The criminal trial

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

73

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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 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
74

(1935)AC 462 Chikopo v the People (1969) ZR 89 (HC) [1968] ZR 42 (HC) (1967) ZR 95 HC

75

76

77

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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 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,
78

Ibid

79

(1927) 20 Cr, App. R. 150 Oxford Dictionary of Law 7th ed. (2009).London: Oxford University Press. Best.W.M.(1866).A Treatise on the Principles of the Law of Evidence. (4th ed.). London: Sweet & Maxwell.

80

81

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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 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. 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:

3.4.2

82

The criminal Procedure Code Chapter 88 of the Laws of Zambia

83

Kunda.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

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“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. 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
85

Evidence (Chadbourn Rev., 1974) Vol. V, p. 32). Criminal Procedure Code Chapter 87 of the Laws of Zambia Ibid Ibid Ibid

86

87

88

89

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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. 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:

90

Ibid Chapter 88 of the Laws of Zambia Ibid Chapter 87 of the laws of Zambia

91

92

93

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“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 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.
94

Ibid

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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 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
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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 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

95

Kulusika.S.E.(2006).Text Cases and Material on Criminal Law in Zambia.Lusaka:UNZA Press. Page 795 Ibid page 800-801 (1968) ZR 165 (HC)

96

97

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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 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

98

Ibid (1967) ZR 184 (HC) Ibid Journal of the International Aids Society www.jiasociety.org

99

100

101

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“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 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
102

Winslow.R.(Dr).A Comparative Criminology Tour of the World. [email protected] Zambia police instructions 2010 edition page 106 ibid

103

104

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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: “(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.

105

Chapter 1

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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
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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 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 posttrial 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
106

Preamble of the Legal Aid Act Chapter 34 of the laws of Zambia Section 8 of the legal aid Act Chapter 34 of the laws of Zambia

107

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as such the public pay particular attention to the conduct of officers in the criminal justice system. 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
40

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.
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•

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.
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•

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. (4th 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.

108

Chapter 43 of the laws of Zambia

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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)
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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

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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

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