Zambia is a state in Southern Africa that lies between the Democratic Republic of Congo to the north, Tanzania to the northeast, Malawi to the east, Mozambique, Zimbabwe, Botswana, and Namibia to the south, and Angola to the west. In its early years, the territory was called Northern and Southern Rhodesia (now Zambia and Zimbabwe, respectively) - the Northern Rhodesia became the Republic of Zambia on October 24, 1964, a national holiday - and was administered by the South Africa Company from 1891 until it was taken over by the UK in 1923 and were proclaimed a British sphere of influence. As a colonialism legacy, English is Zambia's official and most spoken language. Zambia's population comprises more than 70 Bantu-speaking ethnic groups. The predominant religion is a blend of traditional beliefs and Christianity; Christianity is the official national religion.
Type of system
The Legal System:
Zambia’s judicial system is based on English common law and customary law. Common law is administered by several high courts, which have authority to trial criminal and civil cases and appeals from lower courts. Resident magistrate's courts are also established at various centers. Local courts mainly administer customary law, especially cases relating to marriage, property, and inheritance. Under the constitution of 1997, the Supreme Court is the highest court in Zambia and serves as the final court of appeal. The chief justice and other eight judges are appointed by the president. In consultation with the prime minister, the president also appoints the director of public prosecution and the attorney general, the latter being the principal legal adviser to the government. The independence of the judiciary has been respected by the government. Trials in magistrate courts are public.
The legal aid in the country
Zambia has a Legal Aid Board 2 instituted by and formal act of the parliament, the legal aid act 3 . It was designed to administer and manage the Legal Aid Fund, facilitate the representation of those who are granted with legal aid as well as assign practitioners for these people, to advise the minister on policies relating to the provisional of legal aid and to undertake such other activities relating to the provision of legal aid. The Part III of the Legal Aid Act predicts the specification for legal aid in criminal cases. A person charged with an offence before a subordinate court may apply to the court for legal aid. Whenever any court commits a person for trial before the High Court and the court considers that the accused has insufficient means to enable him to engage a practitioner to represent him, the committing court shall issue a legal aid certificate. If the request is denied, the accused my appeal for the High Court. Although the Legal Aid Board has been established as a body corporate, it is still linked to the Ministry of Justice, which is responsible for recruiting, disciplining and determining the conditions of employment of legal aid personnel. The ministry is for mobilizing and disbursing resources to the board. The woes of the board are exacerbated by the fact that poor conditions of service prevent it from attracting and retaining the services of lawyers. The Legal Aid Board tends to limit the granting of legal aid to accused persons facing serious criminal charges, mostly in the High Court. The board therefore handles a limited number of civil cases. Furthermore, NGOs providing pro bono legal services have been formed to alleviate the prohibitive costs of legal services and improve access to justice for the poor. In this matter, the National Legal Aid Clinic for Women (NLACW) and the Legal Resources Foundation (LRF) are the principal organizations active in this field.
Criminal Law System
Criminal Law System:
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. Crimes are classified as either felonies or misdemeanors depending on their respective nature and the maximum punishment that can be imposed. Felonies are serious crimes that is usually punishable by a long-term imprisonment of more than one year with hard labor or death penalty. On the other hand, misdemeanors are minor offences carry a relatively lighter and short punishment, usually simple imprisonment of less than a year. Certain misconducts like traffic and parking infractions are considered lesser offences often referred to as contravening and/or violations of criminal law. Sources of criminal law in Zambia (four broad categories) :
- Constitution of Zambia
- Penal Code
- Zambia Police Act
- Criminal Procedure Code
- National Prosecution Authority Act
- Court precedents and textbooks.
Like most other branches of law in Zambia, the major source of criminal law is the Zambian Constitution Act. The most substantive and basic source is the Penal Code operating mostly through the other source of criminal law namely the Criminal Procedure Code.
- The Zambia Court System
- Supreme Court
- High Courts
- Subordinate Courts
- Local Courts
The judiciary in Zambia is determined under the article 19 of the Constitution. The Supreme Court is the final court of appeal and is responsible for looking after the other courts. The justice procedure is set out specifically in the article 18 of the Zambia Constitution and by the Criminal Procedure Code. The basis provisions for the criminal justice system institutions are based in the Acts of the Parliament, including the
- Constitution of Zambia: which provides the establishments of institutions in Criminal Justice System and the;
- Penal Code: which provides the acts considered as crime and many other acts that make provision of other crimes.
- Criminal Procedure Code: 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 the appealing process.
Beyond that, Zambia has ratified all major UN and AU human rights treaties, which have provisions relevant to criminal justice rights. However, as a dualist state, international law treaties do not apply directly unless enacted into domestic statutes. In general, the Constitution requires that both trial and the announcement of the decision of the court shall be held in public. However, this is subject to several exceptions, under which the court or any other authority may hold proceedings excluding the public. The type of trial will depend on each situation and the Criminal Procedure Code authorizes that the trial be held in camera in the specific situations listed in the Constitution. According to the Criminal Procedure Act, article n. 4 states that the High Court of Zambia may try any offense under the Penal Code. However, it is important to notice that the all offenses under any written law other than the Penal Code may as well try by the High Court of Zambia.
The criminal system in Zambia is made in three main stages:
- trial and;
Sources of Defendants’ Rights
The defendants’ rights in Zambia meet the most basic requirements of the rule of law in the sense that the laws are public knowledge, clear, apply equally to everyone, and are aimed at upholding political and civil liberties. However, the rule of law is threatened by emergency legislation, and the Preservation of the Public Security Act, 1960 (Act 5 of 1960) for example gives the President extraordinary powers to detain any individual indefinitely even though this action contradicts basic human rights’ principles. The constitutional law of Zambia provides the fallowing basic defendant’s rights:
- Zambia Constitution indicates that every person who has been charged with a criminal offence “shall be presumed innocent until he is proved or has pleaded guilty.” – article n. 18, 2, “a” of the Constitution of Zambia.
- Zambia Constitution prohibits trying and convicting a person for a criminal offence unless that crime is defined and the penalty prescribed in a written law - article n. 12, 1 of the Constitution of Zambia.
- Zambia Constitution offers protection against arbitrary or unlawful arrest by requiring that “a person shall not be deprived of his personal liberty except as may be authorized by law” - article n. 13, 1 of the Constitution of Zambia.
- Zambia Constitution prohibits that any person be subjected to torture or inhumane. – article n. 15 of the Constitution of Zambia.
- Zambia Constitution n requires that “any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language he understands, of the reasons for his arrest or detention” - article n. 18, 2, “b” of the Constitution of Zambia.
- Zambia Constitution protects personal liberty by stating that a person must be released if not tried within a reasonable time - article n. 13, 3 of the Constitution of Zambia.
- Zambia Constitution states that “a person who is tried for a criminal offence shall not be compelled to give evidence at trial” - article n. 18, 7 of the Constitution of Zambia.
- Zambia Constitution states that “any person who is unlawfully arrested or detained by any other person shall be entitled to compensation thereof from that other person”. - article n. 13, 4 of the Constitution of Zambia.
- Zambia Constitution indicates that every person charged with a criminal offence “shall unless legal aid is granted to him in accordance with the law enacted by parliament for such purpose be permitted to defend himself before Court in person, or at his own expense, by a legal representative of his choice.” - article n. 18, 2, “d” of the Constitution of Zambia.
The Criminal Jurisdiction, article n. 65 of the Criminal Procedure Code The basic principle that determines the authority of a court to trial an individual is the local limits of the jurisdiction. Because of that, if a person is arrest in a different district from the one where the offence was committed, the court in which the arrest occurred shall send the person to the district in which the felony was committed. The act n. 69 determined that every offence shall be inquired into or tried, as the case may be, by a court within the local limits of whose jurisdiction it was committed or within the local limits of jurisdiction the accused was apprehended. General Criminal Proceedings, article n. 81 of the Criminal Procedure Code According to the article n. 81 of the Criminal Procedure Code, two charging instruments may institute the criminal proceedings:
- a complaint or;
- when a person who has been arrested without a warrant is taken to themagistrate.
After receiving the complaint, the magistrate must present a formal charge containing a statement of the offence the accused is being charged with. At this stage, when a complaint is presented, the magistrate has three options, according to the article n. 90 of the Criminal Procedure Code; this statement might be done by the magistrate himself or by a Public Prosecutor or Legal PR actioner indicated by the magistrate. On the other hand, when the accused has been arrested without warrant and has been taken to the magistrate, the statement must be signed and presented by the police officer preferring in charge. When the magistrate’s opinion is that a complaint or formal charge does not disclose an offense, he shall make an order refusing to admit it (this order must record his legal reasons). According to the article n. 134 of the Criminal Procedure Code, every charge shall contain a statement of the specific offense with which the accused person is being charged with along with other information in order to provide reasonable cause to the charge. When it comes to imprisonment sentences, the article n. 7 of the same Act determined which courts might pass which sentences based in the number of imprisonment years. The article n. 8 describes the competence of the subordinate courts to promote reconciliation by encouraging and facilitating the settlement in an amicable way; in these situations, the trial is replaced by the settlement, but it can only be done in cases of assault, offences of private of personal nature.
The Arrest, article n. 18 of the Criminal Procedure Code:
The arrest in Zambia can be done by police officers or by private person. In the first scenario, the act n. 26 of the Penal Code defines the situations in which a police officer may arrest a person without a warrant; the arrestment may occur without a warrant as well when the deputy’s orders. In the second scenario it is interesting to notice that according to the acts n. 31 and 32 of the Penal Code any private person can arrest another person who, in his presence, commits a cognizable offence or provides reasonably suspect of committing a felony, even without a warrant as long as the individual is taken immediately to a police officer or police station. However, the Constitution offers protection against arbitrary or unlawful arrest by requiring that “a person shall not be deprived of his personal liberty except as may be authorized by law”. Nonetheless, the police has arbitrary power to arrest individuals solely based on a person’s economic status or reputation and these actions against the rule of human rights.
The Zambia Police’ Competencies:
The Constitution of Zambia predicts in paragraph n. 193 that the Zambia police service shall detect and prevent crime. The Zambia Police Act appointed a Criminal Investigation Department that has the authority to promote criminal investigations. The organism is responsible for investigating and providing the Public Prosecutors as many evidence as possible to instruct criminal charges. 5 There are three main competencies of the Zambia Police in the criminal investigations: arrest, search and detention. Beyond that, it is Zambia’s Police competence to carryout interviews in order to find the author of a crime committed or prevent its occurrence. The 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. Alongside the Zambia Police are other institutions, which also investigate and take crimes to courts. For a few felonies, the legislation stablishes special commissions. The Drug Enforcement Commission is one of these exceptions; this commission is responsible for covering the section 5 of the Narcotic Drugs and Psychotropic substances Act. Because of that, this specific commission (but still follow the parameters stablished in the Zambia Constitution conducts the whole investigations. Other investigative authorities in Zambia also include (i) the Anti-Corruption Commission and (ii) the Zambia Wildlife Authority. If the suspect is arrested before or while the investigation is happening, there is no legislations limiting the time he will have to wait in custody so the suspects usually wait until the investigation procedure is completed. In this matter, the courts in Zambia have already stablished a jurisprudence determining that anyone arrested without a warrant and under the section 33 of the Criminal Procedure Code for an offense other than the ones punishable with death, must be brought before court within twenty - four hours or else be released on bond.
- 1. Pre-trial Stage in Zambia
The pre-trial stage in Zambia is when the police officers conduct their investigations. Once the investigations are over and all the rules of evidence have already been followed, the case is taken to Court following the Criminal Procedure Code. Nonetheless, the Zambia Police Service lacks investigative capacity and because of the lack of credible evidence, mainly resulting from poor investigation, some crimes have not been prosecuted. The Constitution of Zambia gives Zambia Police a mandate to investigate crimes. The institution conducts investigations and decides which cases are taken for prosecutions depending on the evidence available. An interesting point is that despite the police powers to investigate crimes, the Constitution of Zambia also provides such powers to the Director of Public Prosecutions (DPP) and because of that, the DPP can take a case to court as well as the police. The document that regulates the powers of the police is the Zambia Police Act, nonetheless, there is an interesting difference in Zambia’s Criminal Justice System: the type of crime will determine the institution responsible for investigating each case. For example, the Drug Enforcement Commission must investigate the crimes related to drugs, its specific functions are predicted in the Narcotic Drugs and Psychotropic Substance Act. Another example of a specific investigation commission is related towhite-collar crimes, usually investigated by The Anti-Corruption Commission.
- 2. Trial Stage in Zambia
In Zambia, the power to institute and undertake criminal proceedings is vested in the Director of Public Prosecutions. The office was created in terms of the Constitution but set up under the executive and not the judiciary branch. The President subject to ratification by the National Assembly appoints the DPP. The majority of the DPP’s prosecutions are not undertaken by lawyers but by police officers who are appointed as prosecutors under his authority and only prosecute cases in lower courts. Since police prosecutors are not trained lawyers, they do not perform very well against well-qualified defense attorneys.
The functions of the DPP are to:
- institute and undertake criminal proceedings against any person before any court other than a court martial;
- take over and continue such criminal proceedings as have been instituted by any other person or authority and;
- discontinue at any stage, before judgement is delivered, any such criminal proceedings instituted or undertaken by himself or any other person or authority.
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. 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. During the trial - which may or may not be public -, both the defendant and the prosecution will have the opportunity to prove their case in front of the judge. The article n. 143 of the Criminal Procedure Code states the defendant’s and the prosecution’s right to summon witnesses that may bring or help to produce evidence during the trial. By the end of the trial, the accused must be brought in front of the judge in order to hear judgment delivered. The sentence must be read by the presiding officer of the court and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it.
- 3. Post-trial Stage in Zambia
The High Court Act states the post-trial procedure in Zambia. When it comes to criminal procedures, the Criminal Procedure Code may be used as well to ensure that every individual has the access to a fair appeal process. According to the article n. 321 of the Criminal Procedure Code, Any person convicted by a subordinate court may appeal to the High Court in the following situations:
- against his conviction on any ground of appeal which involves a question of law alone;
- against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact;
- against the sentence passed on his conviction, unless the sentence is one fixed by law and shall be so informed by the magistrate at the time when sentence is passed.
Furthermore, as for the Prosecution, the article 321-A states that “if the Director of Public Prosecutions is dissatisfied with a judgment of a subordinate court as being erroneous in point of law, or as being in excess of jurisdiction, he may appeal against any such judgment to the High Court within fourteen days of the decision of thesubordinate.” In both situations, on an appeal under this section the High Court may:
- reverse, affirm or amend any such judgment;
- find the person in relation to whom such judgment was given guilty of the offence of which he was charged in the subordinate court or of any other offence of which he could have been convicted by the subordinate court and may convict
and sentence him for such or such other offence; Another important point in the appealing process is the article n. 333, (1) of the Criminal Procedure Code which states that “in dealing with an appeal from a court below, the appellate court, if it thinks additional evidence is necessary, shall record its reasons, and may either take such evidence itself or direct it to be taken by the court below.”. After the decision of the High Court, the subordinate court, or any other subordinate court exercising the same jurisdiction, shall have the same authority to enforce any conviction or order that may have been affirmed, amended or made by the High Court.
- http://www.panos.org.zm/wp-content/uploads/2018/05/Living-Conditions-for- Prisoners-and-Circumstantial-Children-in-Zambia.pdf
- The prison population rate of Zambia is 25.000, based on an estimated national population of 17.17 million at May 2017.
- Zambia has 88 prison establishments made up of 54 standard prisons, 34 smaller open-air satellite prisons and 1 juvenile reformatory institution.
- Although the Prisons Act 1966 requires separation of different categories of prisoners, only female prisoners are held separately; juveniles and pretrial detainees are often held together.
- According to a Prison Care and Counseling Association (PRISCA) survey of 2011, Zambia has a prison population of approximately 17,000 with a total of 1,316 women inmates, representing three per cent in prison cells built to accommodate only 5,700 inmates. Of this, 412 circumstantial children from the age of breastfeeding infants to five are incarcerated with their mothers.
- The population of pregnant women is very significant in Zambian prisons posing challenges of human rights especially when it comes to the problem of women prisoners and the need for prisons policy development.