Notes Notes  THE CRIMINAL JUSTICE SYSTEM IN ZAMBIA Enhancing the Delivery of Security in Africa  African Human Security Initiative Monograph No 159, April 2009  The APRM is an instrument voluntarily acceded to by member states of the African Union (AU) as a self-monitoring mechanism. The primary purpose is to foster the adoption of policies, standards and practices that lead to human security and political stability, high economic growth, sustainable development, and accelerated regional and continental economic integration. J I Mwanje, Qualitative research process, Addis Ababa: Organization for Social Science Research in Eastern and Southern Africa (OSSREA), 2001, 17–18. Muna B Ndulo and Robert B Kent, The Constitution of Zambia, Zambia Law Journal 30 (1998), 11. Ibid, 13. Ibid, 16. Ibid. Republic of Zambia, Government White Paper 1 of 1995. Ndulo and Kent, The Constitution of Zambia, 23. Ibid, 24. Republic of Zambia, Commission on Legal Empowerment of the Poor, Draft Working Group 1, Access to justice and the rule of law meeting, July 2007. Ibid. Ibid. Ibid. Zambia is a dualist state, which means that a treaty only becomes binding as domestic law once Parliament has passed a special enabling statute enacting the treaty as part of ‘municipal’ (internal) law. This is referred to as ‘domestication’. In a strict sense, Zambia has so far not domesticated any of the international human rights treaties. However, the government has adopted the National Capacity-Building Programme for Good Governance, which prioritises constitutionalism and human rights and acknowledges the problems created by the lack of domestication. It states that ‘Zambia is working at the possibility of incorporating International treaties and instruments, to which Zambia is a party, into domestic law’. As this was not a nationally representative survey, results cannot be extrapolated to the rest of the country. Transparency International - Zambia, Corruption Perception Index, 2001, http://www.transparency.org/pressreleases_archive/2002/2002.08.28.cpi.en.htm (accessed 24 September 2007). Laurent C W Kaela, Zambia national governance baseline survey report, Lusaka: Department of Political and Administrative Studies, University of Zambia, 2004. Transparency International, Corruptions Index, Bribe Payers Index, 2005, http://www.transparency.org (accessed 24 September 2007). The Post, 15 October 2007. Republic of Zambia, Anti-Corruption Commission, Complaints register, 2003. Republic of Zambia, Anti-Corruption Commission, Complaints register, 2004. The Post, 19 November 2005. Afrobarometer, Survey – Zambia, 2005, www.afrobarometer.org (accessed 19 June 2007). Mildred Mulenga, Illicit drugs: Zambia emerges as a gateway, Times of Zambia, 27 April 1998. The Post, 6 December 2005. Afrobarometer, Survey – Zambia, 2005. The Post, 16 May 2007. Ibid. United States Department of Labor, 2007 Findings on the worst forms of child labor - Zambia, UNHCR Refworld, 27 August 2008, http://www.unhcr.org/refworld/docid/48caa49ac.html (accessed 16 January 2009). Sunday Times of Zambia, 26 August 2007. M Bratton and B L Katundu, A preliminary assessment of the political attitudes of Zambian citizens,MSU Working Paper 4, 1993, 10–11. Interviews and The Post, 16 May 2007. F E Jansen and G J N Bruinsma, Policing organized crime: a new direction, European Journal on Criminal Policy and Research 5(4) (1997), 85–98. Ibid. The FBI defines organised crime as activities by any group which has some formalised structure and whose primary objective is to obtain money through illegal activities. Such groups maintain their position through actual or threatened violence, corrupt public officials, graft or extortion, and generally have a significant impact on the people in the locales, region or the whole country in which they operate. L Saboi, The role of the Drug Enforcement Commission, Paper presented at a workshop on Fighting Crime in Zambia held at the Intercontinental Hotel in Lusaka, Zambia, 2006. See full report by Amnesty International Zambia, Applying the law fairly or fatally? Police violations of human rights, 2008, http://www.amnesty.org/en/library/info/AFR63/001/1999(accessed January 2008). Seethe Zambia Police Reserve Act, 1950 (Act 45 of 1950), as amended. Also see the Zambia Police Reserve Act, The Laws of Zambia 9, 1996 edition (revised). T Carothers, Promoting rule of law abroad, Washington: Carnegie Foundation, 2006. Ibid. Zambia Police Service, Zambia prisons and police service establishment, Lusaka: Government of Zambia, 2005. S D Katantamalundu, Developing a crime analysis information system for a police service in a developing country. The case of Zambia Police, Enschede: ITC, 2004, http://www.itc.nl/library/academic_output/AcademicOutput.aspx?p=5&y=4&l=20 - 20k (accessed 16 January 2009). Republic of Zambia, Human Rights Commission, Annual report, 2002, http://www.hrc.org.zm/ (accessed 15 November 2007). The Post, 27 November 2006. Republic of Zambia, Human Rights Commission, Annual report, 2002. Ibid. Other communities have sought to address the limitations and bad reputation of the neighbourhood watches by forming crime prevention associations that involve the residents of the communities. U Butalia, Small arms, big trouble, New Internationalist, 2005, http://www.newint.org/issue375/view.htm (accessed 15 September 2007). Republic of Zambia, Constitution of Zambia, section 311(2). Zambia Police (Amendment) Act, 1996 (Act 14 of 1996). Ibid. Ibid. Provided for by the Zambia Police (Amendment) Act, 1996. Ibid. Ibid. Republic of Zambia, Human Rights Commission, Annual report, 2002. Ibid. Cited in J Berg, Police accountability in Southern African Commonwealth countries, Paper commissioned by the Commonwealth Human Rights Initiative, Institute of Criminology, University of Cape Town, 2005. Times of Zambia, 13 July 2007. Zambia Police (Amendment) Act, 1996. Republic of Zambia, Human Rights Commission, Annual report, 2002. Interviews and The Post, 16 May 2007. Ibid. United Nations Office on Drugs and Crime, Zambia–Lusaka urban survey data 2003, http://www.unodc.org/unodc/en/data-and-analysis/index.html (accessed 24 May 2007). Chileshe L Mulenga, Annie Barbara Chikwanha and Mbiko Msoni, Satisfaction with democracy and performance of the New Deal government: attitudes and perceptions of Zambians, Afrobarometer Working Paper 41, 2004, http://www.afrobarometer.org (accessed 17 September 2007). The Post, 8 June 2007. Ibid. The Post, 11 July 2007. Transparency International - Zambia, Show me the money, TI-Z report, Lusaka: TI-Z, 2006. Ibid. Ibid. See TI-Z, Annual report 2005 and Afrobarometer, Survey results, 2003, http://www.afrobarometer.org. The Post, 24 May 2007. Kaela, National governance baseline survey report. The Post, 24 May 2007. Southern Africa Forum Against Corruption, Official launching, Maseru, 11–12 July 2001, http://www.lesotho.gov.ls/articles/Speech-%20LAW-SAFAC.htm (accessed 15 March 2008). See the Narcotic Drugs and Psychotropic Substances Act, 1993 (Act 37 of 1993) and the Prohibition and Prevention of Money Laundering Act, 2001 (Act 14 of 2001). H M Musenge and C Y Chikamba, The extent of money laundering and types of associated crimes in Zambia, Consultancy Report, Lusaka: Drug Enforcement Commission, 2003. Bank of Zambia, Anti-money laundering directives, 2004, http://www.boz.zm/ (accessed 2 March 2008). Amnesty International, Zambia: applying the law fairly or fatally? Republic of Zambia, Draft national criminal prosecutions policy, 4. An entry made on the record by which the prosecutor or plaintiff declares that he will proceed no further. A nolle prosequi may be entered in either a criminal or a civil case. Article 91(1) of the Constitution of Zambia. The Post, 17 June and 21 June 2005. The Post, 31 March 2004. See WLSA Zambia, Justice in Zambia: myth or reality: women and the administration of justice, Lusaka: WLSA Research Trust, 1999. Alfred Chanda, Responses of the justice delivery system in Zambia, Lusaka: WLSA Research Trust Zambia, 2001; WLSA Zambia, Justice in Zambia: myth or reality. Ibid. Article 18 of the Constitution and the Criminal Procedure Code. Chanda, Responses of the justice delivery system in Zambia. Agence France-Presse, Zambia commutes death sentences, 29 November 2005. Times of Zambia, 26 August 2007. WLSA Zambia, Justice in Zambia. Details of the source are not available. Cases were heard in mid-2004. Patrick Matibini, Access to justice and the rule of law, Issue paper presented to the Commission on Legal Empowerment of The Poor, undated, http://www.undp.org/LegalEmpowerment/reports/ (accessed 17 September 2007). See ibid: (1) A seditious intention is an intention - (a) to advocate the desirability of overthrowing by unlawful means the Government as by law established; or (b) to bring into hatred or contempt or to excite disaffection against the Government as by law established; or (c) to excite the people of Zambia to attempt to procure the alteration, otherwise than by lawful means, of any other matter in Zambia as by law established; or (d) to bring into hatred or contempt or to excite disaffection against the administration of justice in Zambia; or (e) to raise discontent or disaffection among the people of Zambia; or (f) to promote feelings of ill will or hostility between different communities or different parts of a community; or (g) to promote feelings of ill will or hostility between different classes of the population of Zambia; or (h) to advocate the desirability of any part of Zambia becoming an independent state or otherwise seceding from the Republic; or (i) to incite violence or any offence prejudicial to public order or in disturbance of the public peace; or (j) to incite resistance, either active or passive, or disobedience to any law or the administration thereof Matibini, Access to justice and the rule of law. Mulela Margaret Munalula, Negotiating gender equality before the law: decisions from the Zambian courts, Paper presented at the International Conference on Negotiating Gender Justice, Goteborg University, Sweden: Centre for Global Gender Studies, 28 February – 2 March 2005. Ibid. Ibid. See the Criminal Procedure Code. See Mulela Margaret Munalula, Legal process: Zambian cases, legislation, and commentaries, Zambia: University of Zambia Press for the School of Law, 2004. / See Republic of Zambia, Human Rights Commission, Annual report, 2007, Lusaka, http://www.hrc.org.zm/ (accessed 19 November 2007). B Chikwanha, Zambia – crime and criminal justice country situational report, AHSI/ISS paper, 2007, www.africanreview.org/docs/zambia/zamsitrep07.pdf (accessed 20 August 2007). Transparency International - Zambia, Zambian judiciary struggles to modernise. Global Corruption Report, 2007. Ibid. See German Technical Cooperation Agency, Improvement of the legal status of women and girls in Zambia, undated report, and Human Rights Watch, Suffering in silence: the links between human rights abuses and HIV transmission to girls in Zambia, Human Rights Watch, 2002. Sections 4(a) and (b) of the Law Association of Zambia Act, 1973 (Act 23 of 1973). Legal Resources Foundation, The Legal Resources Foundation NEWS, 98, July 2007. A W Chanda, The role of lower courts in the domestic implementation of human rights, Zambia Law Journal 33(2001), 1–17. Judges (Conditions of Service) Act, 1996 (Act 14 of 1996), The Laws of Zambia 15, 1996 edition (revised); Institute of Human Rights, Intellectual Property and Development Trust, Zambia, 1995 edition (revised), 15, 893–903. Kaela, National governance baseline survey report, 6–7, 81–85. Ibid. WLSA Zambia, Justice in Zambia: women and the administration of justice, Lusaka: WLSA Research Trust, 1999. The latest figures were not available at the time of writing this report. German Technical Cooperation Agency, Training for local court justices and messengers conducted country wide from 2000 to 2004. It is alleged that the change was made by former President Chiluba in o rder to punish a person who was rumoured to be having an affair with his wife at the time, Mrs Vera Chiluba. See See Munalula, An outline of the study of jurisprudence. Ibid. The Post, 2002. Chikwanha, Zambia – crime and criminal justice country situational report. See for example sections 52(3), 52(5)c, 59, 60, 77, 92(1)a and 118(3) of the Juvenile Act, as amended, and sections 102(2), 134.1a of the Prisons Act. Zambia has a very young population, with children under the age of 18 years representing more than 50 per cent of the entire population. Juvenile Act, cap 53, part I, section 2(1). Customary law and custom are observed in juvenile cases in terms of section 1(2) of the Juvenile Act, as long as this is in the interests of the child. Lukas Muntingh, Evaluation report on Zambia child justice system, Republic of Zambia, Lusaka, 2005, http://www.unicef.org/evaldatabase/files/Zambia_2005_002_Child_Justice.pdf. Ibid, 36. See the UN Human Rights Committee, Human rights violations in Zambia, Part III: Child rights’ situation, 90th session, 2007. Submission by the Child Rights Focused Civil Society Organisations in Zambia Related to the Zambia Universal Law Periodic Review, 2nd session: Children’s rights in Zambia: key issues of concern. Muntingh, Evaluation report on Zambia child justice system. Ibid. UN Human Rights Committee, Human rights violations in Zambia. A Ngenda, Congestion in Zambian prisons: a human rights violation, The Human Rights Observer 7 (2002), 16–18. See the UNICEF-supported projects in Muntingh, Evaluation report on Zambia child justice system. Othman, Haroub and Maina, Chris Peter (eds), Perspective on legal aid and access to justice in Zambia, Lusaka: Zambia Legal Services Centre, 2003, 17. WLSA Zambia, Justice in Zambia: myth or reality: women and the administration of justice, Lusaka: WLSA Research Trust, 1999. See Munalula, An outline of the study of jurisprudence. Former President Chiluba is currently on trial after corruption and abuse of office charges were filed against him following a parliamentary decision to strip him of his immunity. Parliament was forced to make a decision after civil society groups camped outside Parliament grounds and would not leave until the immunity was withdrawn. Mr Bulaya, an official in the Mwanawasa government, was recently convicted of abuse of office after agitation by civil society and the local media led to his arrest and subsequent trial. The Post of 24 June 2002 carried the headline ‘Chiluba bribes Justice Ngulube’, with detailed information from Zambia National Commercial Bank records of payments amounting of US$168 000 made to the Chief Justice by the former Zambia Security Intelligence Chief, Xavier Chungu. In the ensuing furore, Justice Ngulube was forced to take early retirement. See Chanda, The role of lower courts in domestic implementation of human rights, 1–17. Liyoka Kakula, The impact of political independence on Zambian customary law [microform]: a study of the customary law of the Malozi of western Zambia, Madison, Wis: sn, 1982. See Leila Chirayat, Caroline Sage and Michael Woolcock, Customary law and policy reform: engaging with plurality of justice system, http://krex.k-state.edu/dspace/bitstream/2097/178/1/(accessed 9 May 2007). See M Kane, J Oloka-Onyango and A Tejan-Cole, Reassessing customary law systems as a vehicle for providing equitable access to justice for the poor’, Paper presented at Arusha Conference ‘New Frontiers of Social Policy’, 12-15 December 2005. Ibid. See WLSA Zambia, Chasing the mirage: women and the administration of justice, Lusaka: WLSA Research Trust, 1999 and WLSA Zambia, Women and justice: myth or reality in Zambia, Lusaka: WLSA Research Trust, 2000. Ibid. Ibid. Ibid. Chirayat, Sage and Woolcock, Customary law and policy reform. Republic of Zambia, Law Development Commission, Report on the local courts system, Lusaka: LDC, 2006. See Winnie Sithole Mwenda, Paradigms of alternative dispute resolution and justice delivery in Zambia, Unpublished PhD thesis, Pretoria: University of South Africa, 2006. See Law Development Commission, Report on the local courts system. Such a case actually occurred and the mother organised an initiation ceremony to ‘teach’ the girl how to run a home as a married ‘woman’ and women were hired to take the girl to the man’s home. The mother, the other women and the man were arrested. See Zambia Daily Mail, 8 October 2007. See A W Chanda, L C WKaela and J C Momba, Transparency and accountability of state institutions in Zambia, Research Report commissioned by Afronet 2002, Lusaka and the Republic of Zambia, Human Rights Commission Report 2005, Lusaka, http://www.hrc.org.zm/ (accessed 20 December 2007). Ibid. Ibid. See Republic of Zambia, Zambia Prison Service, Daily unlock report, 21 September 2007, compiled from statistics provided by all prisons in the country, Lusaka: Government of Zambia, 2007. Ibid, 68. See Republic of Zambia, Zambia Prison Service, Prisons needs assessment report, Report commissioned by the Commissioner of the Zambia Prison Service Lusaka, April 2004, and also section 9 of the Prisons Act. See Monica Kunda, Build new prisons, The Legal Resources Foundation News 96, May 2007. The Post, 23 May 2007. Chanda et al, Transparency and accountability of state institutions in Zambia. Zambia Daily Mail, 25 May 2007. Republic of Zambia, Prisons needs assessment report, April 2004. Ibid. Republic of Zambia, Human Rights Commission, Report on the Central Province, Lusaka: 2005, http://www.hrc.org.zm/ (accessed 15 November 2007). Ibid. Catholic Centre for Justice and Peace, Development and peace report on ‘para-legal best practices’, Lusaka: CCJP, 2004. Times of Zambia, 14 August 2007. The Post, 17 June 2006.
