Chapter 5: The courts

5 The Courts

 

THE CRIMINAL JUSTICE SYSTEM IN ZAMBIA
Enhancing the Delivery of Security in Africa

 

African Human Security Initiative

Monograph No 159, April 2009

 

THE LEGAL SYSTEM

As a former protectorate of Great Britain, Zambia has retained the English common law system in its adjudication of crime. As a result of the colonial legacy, Zambia has a dual legal system made up of general law (the Constitution, statutes, case precedents, subsidiary legislation and English common law, principles of equity and selected statutes) and customary law. The features of this system are the adversarial litigation process and involvement of lawyers in the prosecution and defence of accused persons. This duality applies to a limited extent to criminal cases, which means that although the majority of offences are covered by statutory law, some minor offences may be handled under customary law. Customary law is also be applied occasionally to serious criminal offences simply because the parties involved do not report the offence to the police, preferring instead that it is dealt with by the chief or other community leader.

The general law is mainly vested in the Penal Code and the Criminal Procedure Code, but it is also found in the penal sections of most other pieces of substantive legislation, such as the Justices Criminal Procedure (Amendment) Act, 2003 (Act 9 of 2003) and various amendment Acts pertaining to the Penal Code. Equality before the law and the right to fair trial are guaranteed in the Constitution. The common law system is also viewed as the general law system that is conceptually superior to the parallel traditional customary law system. However, the customary concepts of crime and punishment are the ones known and understood by the majority of the population.86

Zambia’s local courts, the courts of first resort for customary law matters, apply very little procedure and lean more towards substantive justice. Consequently their handling of criminal cases is limited to the simplest and most common offences, such as violations of council by-laws, customary law offences and penal offences that carry minimum punishments. In order to ensure simplicity of process, lawyers are not generally allowed to appear in these cases.87

Despite the substantial difference in approach between the local courts and the higher courts, the former are considered to be an integral part of the formal court system. Cases from the local courts go to the subordinate courts, High Court and Supreme Court on appeal or review, although their admission to these higher courts necessitates a re-hearing of the matter in the subordinate courts in order to create a record that is acceptable in the higher courts.88

A rigid procedure is set out in article 18 of the Constitution 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. In theory, the criminal trial process begins with the appearance of an accused person before the court. The action is based on a formal charge stating the offence at hand. In presiding over the trial, the court is guided by several principles, the most important of which are the presumption of innocence and that the prosecution bears the burden of proof and must prove its case beyond reasonable doubt.89

The accused must then be afforded a fair hearing within a reasonable time before an impartial public tribunal established by law. During the trial, the accused has the right to put up a defence personally or through a legal representative. Particularly at High Court level, he has the right to question the testimony and other evidence of the prosecution, and the rules of evidence and procedure that are strictly applicable ensure that unfair evidence is excluded. He also has the right to an interpreter and to receive a copy of the proceedings against him. The accused is protected against double jeopardy and ex post facto law and has a right of appeal all the way to the Supreme Court.90

The death penalty

In 2005 then President Levy Mwanawasa commuted the death sentences handed down on 12 criminals convicted for violent crimes (such as murder) and grave crimes (such as aggravated robberies) to life imprisonment or lower sentences. Mandated by law to sign the death warrants, the president refused to do so because he was against the death penalty. The Zambian President has the constitutional power to forgive or commute sentences of prisoners who would have been found guilty by the Supreme Court on appeal.91

Prior to this, there had been widespread discontent after 44 convicted soldiers of the 1997 failed coup, including masterminds Jack Chiti and Steven Lungu, were given the death sentence. When this judgment was upheld by the Supreme Court while ten others were freed after they were proven innocent, it sparked widespread protests. The Supreme Court dismissed their appeal against conviction and sentence on the grounds that the prosecution had proved they were involved in the failed coup.

The death penalty for murder, aggravated robbery and treason is maintained in the statute books of Zambia, despite President Levy Mwanawasa not signing any death warrants during his tenure.92 Most people who made submissions before the Wila Mungomba Constitutional Review Commission (2005) argued that the death penalty should remain on the statute books. Since 2001, 41 people have been sentenced to death, although none of them has been executed. The Prerogative of Mercy Committee has thus been actively lobbying against the death penalty since 2001 and a number of death sentences have been reduced to life or terminable sentences. The last execution took place in 1997.

Although the President has the prerogative to pardon a convicted person or to reduce the sentence under article 59 of the Zambian Constitution, it would nevertheless be significant progress towards respect for human rights if an immediate moratorium on the use of the death penalty is declared for Zambia. This would bring the country in line with international and regional trends towards the abolition of the death penalty.

THE COURTS

Structure

The courts of Zambia can be represented in the shape of a pyramid, with more than 464 local courts at the bottom and the Supreme Court at the very top. Between the two lie the subordinate courts located in every district and the high courts that are situated in the provincial capitals.93

Supreme Court

The Supreme Court was created in terms of article 92 of the Constitution and the Supreme Court Act, 1973 (Act 41 of 1973). It is the final court of appeal with supervisory jurisdiction over all other courts. It has no original jurisdiction and therefore does not hear matters as a court of first instance, except in the case of presidential election petitions. An unprecedented number of election petitions, including a presidential petition, were heard during the course of 2002 following allegations of rigged elections in December 2001.94

 

The Supreme Court hears appeals from the High Court in both civil and criminal matters and closely follows the current procedure in England. The Supreme Court bench has a total of nine judges and a minimum of three or such other greater uneven number as may be necessary to hear cases in Lusaka, Ndola and Kabwe. Criminal appeals may be made against the lower courts’ findings of fact, law or sentence imposed. Thus the court may hear and admit evidence, can allow the appellant bail and may summon witnesses to testify before it. It can dismiss a frivolous appeal summarily but where an appeal is actually heard, the appellant has a right to be present during the proceedings.95

There are certain appeals from the Subordinate Court relating to criminal convictions in which the Supreme Court is the court of first appeal. These include sedition,96 unlawful assembly, riot, rioting after or obstructing a proclamation, rioting causing damage to buildings, proposing violence, perjury, fabricating evidence, offences against morality, sending a written threat to murder, robbery, malicious injuries to property, forgery, conspiracy or attempts to commit any of these offences.

High Court

The High Court, created in terms of article 94 of the Constitution and the High Court Act, 1960 (Act 41 of 1960), has unlimited original and appellate jurisdiction to hear any matter, whether civil or criminal, including issues arising from the Constitution. The High Court is presided over by a judge who is a lawyer of at least ten years’ standing and considered to be a person of integrity and with a sober and stable character. The High Court currently has 30 judges.

The procedures followed in High Court adjudication is similar to that of the High Court in England, and the rules are 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, election petitions, habeas corpus hearings and capital offences such as treason, must commence in the High Court.97

Subordinate Court

As the court of first instance the Subordinate Court, which was established in terms of the Subordinate Courts Act, 1933 (Act 33 of 1933), 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 case, are tried in the Subordinate Court.98

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 size of claims 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. The cases handled by the court are largely criminal in nature, and hence at the Lusaka courts five days of the week are devoted to criminal cases. Jurisdiction does not include applications for habeas corpus. In determining a dispute, the court may call for evidence and listen to testimony. It has the powers to punish contempt committed in its proceedings but must submit such order to the High Court for review. Thus a magistrate is empowered to commit persons to prison for a period not exceeding seven days, by warrant under his/her hand, who wilfully insult magistrates, clerks/court messengers or any other officers of subordinates during their court attendance, interrupts court proceedings or otherwise misbehave in court. As a rule of law and practice, the Subordinate Court should make monthly returns to the High Court relating to its criminal caseload.99

The Subordinate Court has no power to determine issues that must commence in the High Court or Supreme Court. The lowest level of subordinate courts is presided over by Class 3 magistrates, who are not lawyers but have a diploma from the National Institute of Public Administration. Such magistrates can rise to the level of Class 1. However, the fact that a non-lawyer can preside over court proceedings is just as problematic as situations where a junior police officer acts as a prosecutor.

Resident magistrates ranked as Class 1 are lawyers and can rise to the level of senior resident magistrate and judge without any hindrance. Magistrates are appointed by the Judicial Services Commission. Most criminal trials commence in the Subordinate Court but due to lack of capacity, delays are inevitable when they proceed to the High Court for appeal or review.

Most criminal trials commence in a subordinate court and proceed to the High Court on appeal or review.100 The record of proceedings is prepared at no cost to the accused. Appeals from local courts or cases under review proceed to subordinate courts. The Criminal Procedure Code regulates procedure in the subordinate courts. Generally proceedings are held in open courts, which enhance transparency. Proceedings are only held in camera if it is deemed necessary in the interests of justice. Proceedings start with a complaint filed with a magistrate or by arrest without warrant, usually by the police. A citizen’s arrest may be effected by any person present when the offender commits a recognisable offence in their presence. Once arrested, a person may be issued a police bond and released pending trial or brought to court within 24 hours. In cases of offences which qualify for bail, the offender can take a plea and apply for bail. The bond and bail conditions should not be impossible or prohibitive or beyond the means of the applicant. There are some offences which are non-bailable, such as murder, treason and armed robbery, because they are capital offences. In granting bail, the court takes into consideration the possibility that the accused will attend trial, will not commit further offences, or will not interfere with the witnesses.101

Local courts

Local courts are established in terms of the Local Courts Act, 1966 (Act 20 of 1966), and when it comes to resolving disputes, are the fastest and have the simplest procedures. Since the only law of which the presiding justices have any knowledge is customary law, the local courts are unlikely to handle the trial of specialised offences such as corruption. They would only do so under the supervision of an authorised officer such as the local courts’ officer or a magistrate.102 The rank of the court determines its jurisdiction both geographically and in terms of power to determine particular disputes. Thus the lower ranked courts have too few powers to assume and effectively implement a watchdog role vis-à-vis state violation of human rights.

Court performance

Out of 98 709 offences reported to the police nationwide in 2005, only 38 858 were taken to court. Of these, including those that resulted in a discharge, only 28 845 were concluded. There were 3 603 acquittals and nolle prosequi. In total 4 415 were carried over to the next year.103 These figures indicate that levels of crime are relatively high for a total population of 12 million, particularly if one takes into consideration that these figures relate only to detected and reported crime. However, it is also a matter for concern that the numbers point to a low rate of disposal of cases, resulting in a large backlog that increases annually. The legal system in Zambia is limited in its ability to address high crime levels because of inherent structural problems and resource constraints.

Challenges

The poor performance of the courts may be attributed to a number of factors, among them a lack of infrastructure and limited human resources. Phase 1 of the new magistrates’ court complex in Lusaka has 12 courtrooms and 12 chambers next to the present offices of the interpreters. The second phase is expected to consist of another 12 courtrooms, with supporting chambers and offices. However, the increased infrastructure will only partly solve the problem of insufficient personnel as there are only 18 magistrates. At present some magistrates are housed in the interpreters’ offices.

Apart from Lusaka, there are ongoing projects to build new courtrooms and rehabilitate existing infrastructure. However, the situation is dire as the conditions in Petauke, a rural town in Eastern Province, illustrate. This town has only one magistrate who serves both the Petauke and Nyimba districts as a circuit court. The court spends three weeks in Petauke and travels to Nyimba for one week of every month. The size of his area of jurisdiction means that remand prisoners and suspects in police cells have to wait longer for basic procedures such as bail hearings and trial than should be the case. According to the clerk of the court, this delay has become an entrenched violation of the right to a speedy trial. Furthermore, the magistrate is employed on contract instead of on permanent and pensionable conditions of service.

The worst infrastructure and conditions of service pertain to the local court level. According to an officer of the local court, there are currently 464 local courts serviced by local court justices who have no formal training. These courts handle both civil and minor criminal offences.

Table 8 shows the numbers of criminal cases dealt with by the local courts in relation to civil cases.

 

Chikwanha104 questions the guarantee of equal access to justice in Zambia due to a number of concerns:

• The lower court adjudicators who administer customary law pass arbitrary judgments that violate the Penal Code
  
  

• Few defendants have the resources to adequately defend themselves
  
  

• Congestion in the courts leads to significant delays in the disposal of cases while accused persons languish in prison
  
  

• Magistrates who handle the majority of criminal cases are poorly remunerated and their working conditions are generally poor, leading to some extent to unprofessional conduct on their part
  
  

• The courts are perpetually under-resourced and under-funded

Improving court capacity

Recent attempts to lessen the backlog of criminal cases has resulted in the numbers of remandees awaiting trial being reduced from around 2 000 to about 1 000, but this number is still unacceptably high. Since 2002, when the newly elected President Mwanawasa launched his New Deal government with a strong anti-corruption campaign, there has been a substantial increase in the attention accorded to the judiciary and its infrastructure, which has resulted in several improvements.105 The government allocated funds to courts in Luapula and Southern provinces and received considerable assistance from donors. Norway provided nearly US$3 million to build the new magistrates’ court complex in Lusaka, while Sweden furnished the buildings at a cost of US$650 000 and China supplied electric typewriters.106 The German Technical Cooperation Agency worked with the judiciary, the Zambia Law Development Commission and rural NGOs to improve the legal status of the female population by training local court personnel in legal, procedural and social issues. The aim was to equip local court justices with basic skills necessary to handle cases and limit corruption.107

LEGAL AID

The Legal Aid Board

The Legal Aid Act, 1967 (Act 30 of 1967) was enacted on 20 November 1967. The objective of the Act is to provide for legal aid in civil and criminal matters and causes to persons with insufficient means to engage legal practitioners to represent them. The directorate of the Legal Aid Board operated as a department within the Ministry of Legal Affairs and consequently enjoyed limited autonomy. However, section 7 A 91 and section 28 of the Legal Aid (Amendment) Act, 2000 (Act 17 of 2000) transformed the legal aid department into a Legal Aid Board. The Legal Aid Board comprises the following part-time members appointed by the Minister in terms of section 7C:

• A person qualified to be a judge of the high court who acts as the chairperson

• A representative of the Law Association of Zambia

• The permanent secretary in the ministry responsible for legal affairs

• A representative of the ministry responsible for home affairs

• The director, who shall be an ex officio member

• A representative of a non-governmental organisation active in the promotion of human rights

• One other person

A further Legal Aid (Amendment) Act, 2005 (Act 19 of 2005) defined the functions of the board as follows:

• To manage and administer the Legal Aid Fund
  
  

• To carry out any other activities relating to the provision of legal aid which are necessary or conducive to the performance of its functions under the Act

These functions were limited to the effect that the board would not be responsible for the supervision and administration of the directorate. It is difficult to fathom the intention of the legislature in this respect, because boards of corporate bodies do usually supervise secretariats or directorates. A further amendment was made to legal aid legislation in 2005. In terms of section 3B(1)(e–i) the Legal Aid Board was reconstituted as a body corporate, with perpetual succession and legal capacity to sue and to be sued. The composition of the board was enlarged to include representatives from the ministries responsible for finance and national planning, community development and social welfare, labour, sport and child development (section 3C(1)).

The functions of the board were also reformulated and enlarged:

• To administer and manage the Legal Aid Fund
  
  

• To facilitate the representation of persons granted legal aid under the Act
  
  

• To assign legal practitioners to persons granted legal aid under the Act
  
  

• To advise the minister on policies relating to the provision of legal aid and implement government policies relating to it
  
  

• To undertake other activities relating to the provision of legal aid and which are conducive or incidental to the performance of its functions

Although the Legal Aid Board became a body corporate, the link to the Ministry of Justice remained. The ministry still recruits, disciplines and determines the conditions of service for legal aid personnel and is also still responsible for mobilising and disbursing resources to the board. However, it is important that the board and the ministry be separated, because if it were independent, it would be able to plan effectively for expansion, hiring and retention of staff as well as mobilisation of resources from either the government or partners. The formality surrounding the Legal Aid Board still makes it difficult for the ordinary person to approach the board.

The Legal Aid Board has offices in Lusaka, Kitwe, Ndola, Kabwe and Livingstone. It employs 21 lawyers out of the desired total of 34. The lawyers acting for the board have heavy caseloads and have to cope with a critical shortage of staff and inadequate transport. As a result operations tend to suffer and the board tends to limit the granting of legal aid to accused persons facing serious criminal cases, mostly in the high court. The board therefore handles a limited number of civil cases.

The woes of the board are aggravated by the fact that as a result of the poor conditions of service, it is unable to attract and retain lawyers.The result of the administrative and logistical problems is that indigent persons, especially in rural areas, are denied recourse to legal aid.

Non-governmental organisations and pro bono services

The paralegal programme of the Catholic Commission for Justice and Peace was set up as a response to the need for the communities to know, understand and protect their rights. The programme is driven by the aim of contributing to the rule of law through increased access to legal information and support, especially with regard to the poor. It tries to achieve this by offering quality legal advice by justice and peace members who are trained under the programme. The programme is undertaken in association with the University of Zambia School of Law. Programme participants are also expected to learn from law officials such as the police, judges, magistrates, and members of the Anti-Corruption Commission and the Human Rights Commission.

In order to alleviate the prohibitive costs of legal services and generally improve access to justice for the poor, various NGOs have been formed that provide pro bono or free legal services. The principal organisations are the National Legal Aid Clinic for Women (NLACW) and the LRF. The NLACW was established in 1990 as a project under the Women’s Rights Committee of the Law Association of Zambia. The latter is a professional organisation for lawyers in Zambia. The mandate of the Law Association of Zambia includes the development of law as an instrument of social order and justice. In addition, lawyers are encouraged as individuals to identify themselves with the people and use their skills in the development of society and its institutions.108 The NLACW was established to provide affordable legal aid to women and children from marginalised social sectors, mainly those who would not usually be able to afford to hire a legal practitioner to represent them.

The NLACW has offices in Lusaka, Livingstone and Ndola. It currently employs only six lawyers. The capacity of the NLACW to provide significant relief to the poor is limited as it is donor dependent and lacks the logistical support to meet the challenges of providing legal services to the poor. If the NLACW received the necessary support in the form of more resources to enable it to recruit and retain a larger team of lawyers to serve rural and urban poor women, they would be able to carry out their tasks more effectively. The establishment of strong linkages countrywide would allow them to utilise the small claims court concept and operate from buildings belonging to other institutions. They also need materials such as networked computers, motor vehicles and mobile office facilities. Owing to the nature of the cases handled by the NLACW, support in the form of provision of social workers to take care of the needs of the poor women would be an additional advantage. Expansion of the activities and infrastructure of the NLACW to rural and urban areas would be a critical step in increasing access to justice for the majority of poor and vulnerable women.

The Legal Resources Foundation is an indigenous NGO established in 1991 to promote and protect human rights, principally though the provision of legal aid services to the poor.109 The organisation has pioneered community-based legal advice centres and a prisons legal assistance project that targets prisoners, prohibited immigrants and refugees. The primary aim of the LRF is to supplement the chronically understaffed Legal Aid Board with regard to the provision of legal services to the poor. Although the LFR runs a legal aid programme, it too suffers from a myriad of problems. First, it has a high turnover of lawyers as a result of the poor conditions of service offered to its staff. Second, it operates from rented premises that cannot be converted to suit the needs of themselves and their clients and there is also the potential risk that they need to change offices if the relationship with the owner of the building deteriorates or the rental is increased. This constant change of rented premises could affect the access of the general public to the LRF. Third, it has a poorly stocked legal library, which makes research very difficult. Finally, it has inadequate transport to meet the challenges of providing legal aid across the country.

During a conference hosted by the Zambia Association for Women Judges, the structural problems faced by the judiciary came under the spotlight. The conference participants concluded that Zambian courts have to apply archaic laws, are bogged down by a backlog of cases and are mired in chaos arising from poor security and record-keeping. Not only is there a formal legal system, but also a common law system. The review of the country’s Constitution, which was amended in 1996, is expected to outline changes in governance and legal and judicial issues that should alleviate the situation.

THE JUDICIARY

Legal framework

The United Nations Congress on the Prevention of Crime and the Treatment of Offenders (1985) adopted the basic principles on the independence of the judiciary. In terms of these principles:

• The state must guarantee the independence of the judiciary and enshrine this independence in the Constitution
  
  

• The judiciary must enjoy administrative independence to ensure its autonomy
  
  

• The judiciary must have sufficient funds to enable it to perform its function efficiently. This necessitates that the judiciary should participate in the preparation of its budget and the appropriation of resources
  
  

• The judiciary’s decisions – its judicial authority – must be respected and complied with. There should be a power of judicial review of executive decisions
  
  

• Judges need to be independent to ensure that they are able to act without fear of criticism or reprisals, especially in sensitive cases

The concepts of independence and impartiality are closely linked but distinct. The judiciary needs to be independent at both the individual and institutional levels. It can be regarded both as a state of mind and a relationship with others. In the case of the judiciary this relationship is mainly with the executive branch of government; it rests on objective conditions or guarantees. Impartiality, on the other hand, is the state of mind or attitude of a court in relation to the issues or parties before it in a particular case. Here it is important that a court not only be impartial but is seen to be so.110

The judiciary was established under Part VI of the Constitution. This part is not entrenched in the Constitution, but can be amended by Parliament. Article 91(2) of the Constitution states that judges, magistrates, and justices of the different courts shall be independent and impartial and subject only to the Constitution of Zambia and the law. By virtue of the Judicature Administration Act, 1994 (Act 42 of 1994) the judicature is autonomous and administered in accordance with the law, and judges must conduct themselves in accordance with a code of conduct promulgated by Parliament.111

The court’s independence is secured through an objective process of appointment and terms of tenure of office. Independence of the judiciary is based on three requirements: appointment procedures, conditions of service, and termination of employment. The provisions in the Constitution of Zambia and specific Acts of Parliament provide for the appointment of judges based on these principles.

A judge is appointed on the basis of two criteria, namely integrity and professional competence. With regard to conditions of service, the law provides security of tenure until the mandatory age of retirement as well as adequate remuneration. Promotion should be based on objective factors. Judges cannot be sued for official actions and decisions. Although judges are accountable for their professional conduct, such accountability should be enforced by an independent tribunal. The judge is entitled to a fair hearing following established judicial procedure and may be removed only for an inability to perform his functions. Again, such a decision is subject to an independent review. The court, and the judge, in turn must ensure that the parties before it receive a fair and impartial hearing that will be concluded with a reasoned decision.

Significant differences exist between the appointment process, security of tenure and conditions of service of judges and members of the lower bench. The Constitution provides for the appointment procedure of judges and involves two branches of government in that appointments are made by the executive and ratified by Parliament. However, members of the lower bench are appointed by the Judicial Services Commission.

Accountability

The behaviour of adjudicators is regulated by the Judicial Code of Conduct Act, 1999 (Act 13 of 1999). The Act created the Judicial Complaints Authority, which oversees the conduct of adjudicating personnel and regulates the ethical conduct of officers of the judicature. A ‘judicial officer’ is defined as the chief justice, the deputy chief justice, a judge, a chairman, deputy chairman, registrar, magistrate, justice of a court, or other person having power to hold or exercise the judicial powers of a court. The Act contains two key provisions:

• Section 5(2) provides that a judicial officer shall not, in the performance of adjudicative duties, be influenced by partisan interests, public clamour or fear of criticism, or by family, personal, social, political or other interests
  
  

• Section 5(3) provides that judicial officers shall not use the office or their position to advance any private interests of themselves or their immediate family

The Judicial Complaints Authority is constituted of a complaints committee of five persons who have held or are qualified to hold a high judicial office and have been appointed by the President, subject to ratification by the National Assembly. The committee’s functions are to receive and investigate any complaint or allegation of misconduct made against a judicial officer and to submit its findings and recommendations to the appropriate authority for disciplinary or other administrative action. It may also submit its findings and recommendations to the Director of Public Prosecutions for consideration of possible criminal prosecution. Section 25 of the Act provides that any member of the public who has a complaint against a judicial officer or who alleges or has reasonable grounds to believe that a judicial officer has contravened the Act must inform the committee accordingly. The same duty to report to the committee falls on a judicial officer who alleges or has reasonable grounds to believe that any other officer has contravened the Act. The complaints procedure and subsequent investigations are wholly confidential and not open to public scrutiny.

The fact that the Act does not cover court officials such as the chief administrator and other senior professional and administrative staff is considered to be one of its major weaknesses. The fact that the complaints procedure is confidential and proceedings are held in camera has also attracted criticism on the grounds that it lacks transparency. However, the procedure is defended on the grounds that it is necessary to uphold the dignity of the office of judicial officers and preserve the integrity of the judiciary as a whole.

Funding

In a bid to strengthen the autonomy and therefore the independence of the judiciary, the Judicature Administration Act, 1994 (Act 42 of 1994) was passed. The Act provides for the separate administration of the courts from the Ministry of Legal Affairs and gives the Judicial Service Commission the power to appoint staff of the judicature. The judicature absorbed the existing staff of the judiciary and continued to receive government funding through the Ministry of Justice. The administration of the judicature is headed by a chief administrator appointed by the President on the recommendation of the Judicial Services Commission. He is regarded as the officer who controls the expenditure of the judicature and therefore has a standing similar to that of a permanent secretary.

The funds of the judicature consist of monies appropriated by Parliament for the purposes of the judicature, and grants and payments in the form of court fees and fines paid to the judicature. The Chief Administrator may accept grants whether they are subject to conditions for the benefit of any activity, function, fund or asset of the judicature or not. The judicature has thus been funded substantially by donors both in terms of capital projects and day-to-day programmes. NORAD is for example currently funding the construction of a subordinate court complex in the vicinity of Lusaka Central Prison. The government, too, has funded a number of ongoing projects regarding the construction of new court buildings and rehabilitation of existing infrastructure.112

The judicature also raises its own funds from court fees. Forty per cent of the fees is retained in the stations and 60 per cent is remitted to headquarters. These funds are deducted from the total appropriations for the judiciary and used for recurrent expenditure. Monies raised from court fines are more substantial than fees but are remitted to the Central Treasury. Judiciary appropriations are applied to personal emoluments and allowances for the members of the judicature. Judges’ salaries are drawn directly from the Treasury in accordance with the Constitutional Offices Emoluments Act, 2005 (Act 14 of 2005). Members of the judiciary can take out loans. The judicature’s accounts are subject to audit by the Auditor General. Despite its new autonomy and improvement in the salaries of judges, salaries of magistrates and court justices remain unsatisfactory and this has contributed to allegations of corruption against adjudicators, even at the highest level.113

Not later than six months after the end of the financial year, the judicature must provide a financial report incorporating audited accounts to the President, who presents it to Parliament. The government retains ultimate responsibility for providing, equipping and maintaining courthouses, offices, judges’ residences and other buildings.

Gender composition

There are considerably fewer female adjudicators than males in Zambia. According to a study conducted by WLSA114 in 1999 there were only six female local court justices out of a total of 299; 23 female magistrates out of a total of 106; and three female judges out of a total of 19.

Independence of the judiciary

On the whole the courts appear to deliver more progressive judgments when watchdog institutions such as the Parliament are more proactive and when the executive appears to support the rule of law. This perception is borne out by a comparative review of cases determined during the one-party state era (1970s and 1980s) and the multiparty eras of Chiluba (1990s) and Mwanawasa (2001-2008).

During the one-party era there was a proliferation of habeas corpus cases as numerous people were detained indefinitely under a purported state of emergency.115 Many of the habeas corpus pleas, such as Chisata Lombe v Attorney-General (1981) ZR 35; Kawimbe v Attorney General (1974) ZR 244; and Mario Malyo v Attorney-General (1988-89) ZR 36, were rejected by the courts in what were clearly judgments partial to the government.

This is illustrated clearly in the case of In Re Kapwepwe and Kaenga ZR 49. This was a case of two applications for a writ of habeas corpus ad subjiciendum. The applicants, who were members of an opposition party, were detained under Regulation 33 of the Preservation of Public Security Regulations. Section 26A(i)(a) of the Constitution required that such persons be furnished with a written statement specifying in detail the grounds upon which they are detained.

The statement in respect of Simon Kapwepwe alleged that during December 1971 and January and February 1972, he and other members of the United Progressive Party conspired to engage in activities to endanger the safety of persons and property, as a result of which 18 persons were assaulted and threatened with death and the properties of 23 persons were damaged or destroyed. During those months he allegedly conspired to defy and disobey the law and lawful authority and to spread by word of mouth and publish by way of circulars statements defamatory and contemptuous of the head of state and government. The first contention of the applicants was that they were unable, because of the lack of detail, to make any or a sufficient representation regarding their detention. The second contention was that the discretion of the President to detain them was improperly exercised and not entirely in good faith. The high court held that grounds are simply reasons what must be provided for the exercise of the executive’s discretion to detain, and not statements of the material facts on which reliance is made. It further held that there was no evidence to show that the President was acting other than in good faith.

The 1990s and the return to multiparty politics saw more complex cases but also clearer ambiguity in the court’s relationship with the executive, as the following cases illustrate.

In The People v Fred Mmembe and Others (HP/38/1996) the editors of The Post newspaper were charged with receiving information in contravention of the State Security Act. The court found for the accused on the grounds that the information that was published did not impinge on public security. In the landmark case of The People v Christine Mulundika and Others ZR 239, the Supreme Court overruled the High Court, holding that the Act gave too much discretionary power to the executive in the award of permits under the Public Order Act.116 The court stated that such legislation creates a prior restriction on the freedom of the citizen to form or hold a meeting or procession and in terms of article 21(d) also to demonstrate in a public place. (A prior restraint is an injunction prohibiting the freedom of assembly, procession or demonstration. Whether such injunctions or prohibitions imposed by statutes may be restricted by law on the grounds stated in the Constitution can be debated but they cannot be denied.)

In March 2000, Mr Mmembe and The Post were again on trial for espionage. This time they were accused of spying on behalf of Angola after The Post published an article comparing the military standing of Zambia and Angola. The presiding judge ruled that mere publication did not prove either prejudice to Zambia or establish the offence of espionage.

These decisions are far from decisions in the 1980s and early 1990s which avoided any contradiction with state policy or the possible undermining of executive licence and powers. However, many people viewed the court decisions as fairly radical because the fact that the trials arose at all was evidence that multiparty rule had not erased authoritarian tendencies in the state apparatus. Democracy did not prevent the state from continuing to employ repressive laws in order to control dissent. In fact, some argue that the judgments set in motion a deliberate government strategy to undermine or corrupt the judiciary.117

The state reacted negatively to the two judgments. The Chiluba government openly criticised the Mulundika judgment in particular and threatened to circumvent it through statutory enactments. In 1996 the MMD-dominated Parliament passed, in record time, a Bill amending the Public Order Act, 1955 (Act 38 of 1955) to limit discretion but at the same time imposed a requirement for a notice period prior to any public assembly. In fact, only public outrage stopped the government from pushing through a constitutional amendment at the same time, giving the President broad powers to remove a sitting justice.118

Another aspect that deserves mention is the untimely departure of no fewer than three of Zambia’s former chief justices. During the one-party state period, two chief justices were removed for actions perceived to be partial, either for or against the state. In the first case, Chief Justice Skinner was removed by President Kaunda for releasing two Portuguese nationals who were charged with espionage. The release was allegedly prompted by the fact that the accused persons were white and the decision to remove Mr Skinner was widely supported by the public. Chief Justice Silungwe on the other hand was forced to resign after public demonstrations were held against him following his delivery of a Supreme Court judgment acquitting President Kaunda’s son, Kambarage, on a charge of murdering a young woman. The third case occurred much later and brings a different dimension to the relationship between the executive and the chief justice. Chief Justice Ngulube was forced to take early retirement in 2002 after sensational revelations by The Post that he had received some under-the-counter payments from President Chiluba.119

In a country where the independence of the judiciary is a relatively recent event that needs to be strengthened, sentencing guidelines can assist in promoting transparency and introducing consistency. The extent to which sentences are becoming harsher is a good indicator of the approach to criminal justice.

Training

Most local court officers are drawn from among retired civil servants and serve three-year contracts, making impartiality problematic. Even at lower court level there are very few professional magistrates who are trained as lawyers. The majority are lay magistrates trained at the National Institute for Public Administration.

Chikwanha120 questions whether equal access to justice can be guaranteed in Zambia. Her concern can be attributed to a number of concerns about the staffing of courts, specifically with reference to the poor qualifications of persons manning the lower courts and the absence of lawyers, which compromise the quality of justice dispensed to citizens who rely on these facilities.

JUVENILE JUSTICE

Juvenile justice in Zambia is governed by the Juvenile Act. The Act was promulgated in 1956 (Act 4 of 1956) and was amended frequently, most drastically in 1964 and 1969. Because children are mentioned in a number of other acts, too, there are a wide range of definitions of the child, which causes major problems. Furthermore, the definition of a child varies depending on the context and piece of legislation and the minimum ages for various actions are set in terms of different laws. In addition, very often the legislation also refers to the ‘apparent age’ of the child,121 which lays it open to potential abuse and discrimination if the law is misapplied.

The term ‘juvenile’ includes a ‘child’ – a person who has not attained the age of 16 – and a ‘young person’ – a person between the ages of 16 and 19.122 The Juvenile Actrefers to persons below the age of 19.123 However, with regard to protection of young persons from exploitation, a ‘young person’ is any person below the age of 15 years, but with regard to marriage, any person below 21 years requires written consent of a parent or guardian. (Matters are further confused by customary law, where still different age norms apply and written consent is not required, and a marriage may for example be contracted once a child has attained puberty.) On the other hand, the Penal Codesets the minimum age for full criminal responsibility at 18 years but when customary law is applied, the criterion may be the attainment of puberty.124

Muntigh observes that child justice in Zambia is essentially influenced by five key constraints:

Severe resource constraints at all levels of the system

• Antiquated legislation regulating juvenile offenders (the original Act was enacted in 1956) based on an approach to juvenile offences prevailing in Britain in the 1930s
  
  

• Justice officials who are not trained to deal with children in conflict with the law and a lack of expressed recognition of children’s rights in the criminal justice system
  
  

• A high turnover and constant transfer of police officers, prosecutors, magistrates and probation officers who receive training in juvenile justice, thus undermining investment in training
  
  

• No budgetary allocation expressly for juvenile justice administration
  

Children thus remain vulnerable in the criminal justice system and given the large numbers of street children and those orphaned by the AIDS pandemic, many injustices are likely to go unreported since no adults follow up on the welfare of these children. A large part of the problem is that the attention that has been given to child justice since 2000 has been almost exclusively donor driven. Despite the training and research that have been undertaken as well as some significant, though small, advances that have been made, the government has not taken the initiative in enhancing the security of children in justice delivery. This position was confirmed by the Permanent Secretary for Home Affairs, who explained that there is no specific budget line allocation for child justice, nor has government identified it as a priority area.125 According to a 2005 United Nations Children’s Fund (UNICEF) report children are essentially treated as ‘small adults’ in the criminal justice system.

The following case illustrates some of the injustices juvenile offenders experience:

The child was convicted on 6 June 2004 at the age of 15 years for defilement and received a sentence of 21 years. He knew the victim, who was a neighbour and roughly the same age as himself. Both his parents had passed away, his father when he was aged 10, and his mother a year later. After that, he stayed with an aunt until he was arrested. He is illiterate and attended school until Grade 4. At the trial in the subordinate court, he pleaded guilty but was never assessed or interviewed by a social welfare officer and a report on his personal circumstances was apparently not submitted. The magistrate felt that the subordinate court did not have sufficient jurisdiction for sentence and referred the case to the high court for sentence. The boy explained that he was sitting in prison when he was informed that he had received a sentence of 21 years’ imprisonment. 126

Juvenile justice legal framework

The fragmented legal framework complicates the delivery of justice to juveniles. The numerous laws relating to children are scattered among different statutes.127 Many of children’s basic rights (such as the right to citizenship, protection from exploitation, the right to life of an unborn child and the right to personal liberty of a minor) are all entrenched in the Constitution. The provisions related to criminal matters are embedded in the Juvenile Act, the Penal Code, and the Criminal Procedure Amendment Code. The dispositions regarding civil matters can be found in the Intestate Succession Act, the Widows and Orphans Pensions Act, the Affiliation and Maintenance Act, the Adoption Act and the Employment of Young Persons and Children Act. In addition to constitutional and statutory legislation, customary law also regulates matters concerning children. In Zambia, local courts employ the principles of customary law and have substantial power to invoke customary law, including Penal Code 17.

In the same fragmented manner, the legislation on children is implemented through various programmes: the National Plan of Action to Eradicate Child Labour, the Victim Support Unit, the Child Justice Forum, the National Youth Policy and the National Child Policy. Likewise, different ministries share the responsibility for the welfare of children but not necessarily in a coordinated manner. The Ministry of Sport, Youth and Child Development, the Ministry of Community Development and Social Services, the Ministry of Labour and Social Security and the Ministry of Education are all involved.

The government, through the Ministry of Community Development and Social Services, has embarked on a law reform process to comprehensively review various pieces of child-related legislation in order to harmonise them and to bring them in line with the general principles of the United Nations Convention on the Rights of the Child (UNCRC). One of their recommendations is that the government should set up a national child council whose key mandate should be to coordinate the implementation of the UNCRC in the country. However, the process is slow and has on occasion stalled and there is still a lack of clarity regarding the process and the mandate of the Ministry to review all child-related legislation.128 Part of the problem is that although there is now a new national child policy (2006) that has taken into account the worsening situation of orphaned and vulnerable children in the country, there is still no national plan of action to translate the policy into programmes. Furthermore, the Child Rights Committee that was formed under the Human Rights Commission to strengthen the monitoring and implementation of the UNCRC has not performed according to expectations because of inadequate resources and manpower.

Police stations visited by Muntingh in 2005 (in Lusaka: Lusaka Central, Kabwata and Matero; in Ndola: Ndola Central, Masala and Kanshenshi; in Kitwe: Kitwe Central, Mindola and Wusakile; Choma in Choma and Central in Livingstone) revealed that with the exception of Matero, Lusaka Central and Ndola Central, children were not separated from adults while detained at police stations prior to court appearances even though all police personnel were aware that this was a legal requirement. In most cases there was no cell space available at the police stations to make this possible. Accordingly detained juveniles experience the same hardships as adults. There is no special provision which regulates the procedure of arrest when it comes to children, therefore the ordinary rule in section 33.1 of the Criminal Procedure Code applies, which requires a limit of 24 hours before appearance before a magistrate.

Although section 66(4)(a) of the Juvenile Act requires that a juvenile appears at least every 21 days before the court to extend the warrant for his/her detention, this does not happen in practice. In Mukobeko a 17-year-old boy (charged with burglary and theft) had been in custody for 21 months but had appeared in court only twice. At the same prison another boy aged 16 years who had been charged with assault had appeared in court once since his arrest seven months earlier. At Ndola Remand Prison a boy aged 13 years who had been charged with ‘espionage’ had been in custody since January 2001.129 In short, at all the remand prisons visited children were found to have been held for excessively long periods and in violation of the provisions of the Juvenile Act, rendering their detention illegal. The charges against the children also require further scrutiny.

Sections 58 to 60 of the Juvenile Act provide the following basic requirements with regard to the arrest and detention of a child or young person: detention should be avoided and if detention cannot be avoided, children must be kept separate from adults, and girls must be placed in the care of a female officer. The child should as far as possible be kept in a place of safety and the officer in charge of the police station must show to the court why detention is required and why the child could not have been released on his own recognisance or a police bond.

In most provinces the handling of juveniles in trouble with the law are problematic. In some cases the arrest of children are recorded in a general occurrence book with adult arrests and are not readily identifiable from records. Sometimes they are distinguished only by ‘J/F’ or ‘J/M’ for juvenile female or juvenile male. Only in Lusaka Central and Matero are their cases handled in accordance with the legal requirements.130

Juvenile crimes

Children are arrested for ‘consensual crimes’ such as smoking dagga and inhaling solvents. The criminalisation of substance abuse by children, triggering a criminal justice response to a child care problem, is clearly inappropriate. It would be more appropriate for the police to refer these matters to the Drug Enforcement Commission than to arrest the children.

In August 2005, out of 14 427 prisoners in Zambia, 79 were convicted juveniles and 230 juveniles were in remand. In 2005, juveniles were detained in the following prisons:

• Mukobeko Maximum Security Prison – male section
  
  

• Mukobeko Maximum Security Prison – female section (seven children kept with mothers)
  
  

• Ndola Remand Prison (63 juveniles)
  
  

• Kafinsa Remand Prison
  
  

• Katombora Reformatory School
  
  

• Lusaka Central Remand Prison
  
  

• Kabwe Medium Security Prison: in 2005, 25 juveniles had been awaiting trial since 2002 (most of them had not appeared in court for several years. There were a total of 29 inmates in the juvenile section, who were apparently detained in better conditions)
  
  
  

• Mumbwa State Prison: One female detainee had a three-year-old old baby. One juvenile, aged 16 years, was detained with the adults
  
  
  

• At Serenje State Prison juveniles were detained with adults131

The subordinate court can constitute itself into a juvenile court in order to try a juvenile offender. Pre-trial detention is discouraged for fear of contaminating the juvenile. The trial is closed to the public and the juvenile’s guardian is expected to be in attendance. The types of order that the court can make include an absolute or conditional discharge, probation, an approved school order, a reformatory order, corporal punishment, payment of a fine, damages or costs, or imprisonment if he/she is 16 years of age or older. Imprisonment is a last resort, in which case a juvenile is sent to Katombora Reformatory in the Kazungula district. Corporal punishment has been outlawed by the courts as inhumane and degrading punishment.132

Zambia has ratified the United Nations Convention on the Rights of the Child, although its provisions have not been domesticated. This means that the Juvenile Act must be reviewed and modernised. The main focus of juvenile justice should be rehabilitation as opposed to punishment. The Constitution should also provide special protection for juveniles. Apart from such special constitutional protection for juveniles, there is equal need to domesticate international instruments governing juvenile justice. These include the United Nations Standard Minimum Rules for the Administration of Juvenile Justice the (Beijing Rules); the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty.

However, UNICEF, in collaboration with the Judicial Commission, has been working with the Human Rights Intellectual Property and Development Trust to finalise a manual for child justice role-players. The manual will be used to train 105 magistrates and other role-players in the administration of child justice. There is wide recognition that this is a key ingredient in the expansion of child justice in the country. UNICEF has also been working closely with the Permanent Human Rights Commission to organise a human rights training programme for parliamentarians whose oversight is essential to ensure the protection and realisation of children’s rights.133

The result has been some progress regarding reforming child justice delivery in the country. UNICEF’s Child Protection Unit attempted to control and stabilise the child justice reform process in the country by the provision of technical, capacity-building and financial support. These efforts resulted in the establishment of child friendly courts and arrest reception and referral services (ARRS). The aim was to centralise all efforts to address the problem of children who had to be dealt with within the justice process as a whole.