Under the programme, five countries – Zambia, Tanzania, Benin, Mali and Sierra Leone – were selected for review in 2007 and 2008. Zambia is in transition towards the consolidation of its multiparty democracy that was reintroduced in 1991 after two decades of ruinous one-party rule. The country’s crime and criminal justice system is also in a transitional phase.
Research teams adapted both the qualitative and quantitative research designs to their own needs. A combination of data collection techniques was used including a desktop study, interviews, observations, written questionnaires and case studies. The inputs of key respondents and members of the public were central across all the themes. Face-to-face interviews and focus group discussions were conducted throughout the country. Appropriate semi-structured questionnaires were used for data collection from representatives of public institutions, resident development committees, non-governmental organisations (NGOs) and other key participants.
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Zambia, like many other countries, is grappling with increasing crime. However, it was very difficult to access police statistics on crime, as this information is not being released to the public. The occurrence of criminal activities is much greater in urban areas, particularly in areas along the railway line. High unemployment levels, the influx of people to urban centres, and an inadequate police presence are some of the contributing factors. In all provinces, the proportion of offences taken to court is low, as is the proportion of offences resulting in convictions.
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Corruption is a serious problem in Zambia and the country consistently has a very low ranking on the Corruption Perception Index. The general public also rated corruption as a serious challenge confronting the country. Corruption in the electoral process and public service delivery seems to be the citizens’ greatest concern. Most expressed fears that corruption has permeated all sections of Zambian society and feel that bribery and corruption have become characteristic features of Zambian life.
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The Anti-Corruption Commission (ACC) is both under-resourced and under-skilled, Members of Parliament lack the capacity to discharge their functions effectively and the offices of Auditor General and Ombudsman are effectively moribund. This is attributed to a policy of deliberate under-funding coupled with a failure to punish corrupt officials.
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Corruption is practised by people from all walks of life, but it is particularly worrisome that top public officials either participate in corruption or seem to condone it. A culture of impunity has developed and corruption has permeated government structures from the Presidency down to the lowest-ranking public service employee. The conduct of most officials in the public service and the lack of effective internal controls in the ministries and government departments are major contributing factors to the prevalence of corruption.
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The country continues to witness an increase in the incidence of drug trafficking and money laundering. However, information on the problem is scant. These issues need to be researched in more depth than was possible in this study.
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No empirical research has been conducted on human trafficking activities in Zambia, but the problem exists and there is also evidence that human trafficking syndicates are operating in the country. Owing to its relatively weak economy, Zambia is a source and transit country rather than a destination for human trafficking. In recognition of the problem, the Zambian government, through the Ministry of Home Affairs, is developing a national policy to combat human trafficking.
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Illegal migration is a problem. The unstable political climate, coupled with poor economic conditions in some of the country’s neighbouring states, adds to illegal migration. Lack of capacity to effectively monitor the country’s porous borders with neighbouring states exacerbates the problem.
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There is also a historical perspective to illegal migration in Zambia. The colonial borders physically separated people belonging to the same clan, tribe, and/or chiefdom, but the ties remain and contribute to illegal migration. In view of this it is not surprising that the review did not find any deep-seated hatred of illegal migrants among the participants – most had a humane and accommodating view of illegal migrants living and working among the locals.
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Organised crime in Zambia is not well documented and no clear details of the nature and/or trends of such a phenomenon could be discerned. Criminal gang activity has manifested itself in various aspects, including motor vehicle theft, assault and aggravated robbery, drug trafficking, human trafficking, money laundering, illegal poaching, and trafficking in military firearms.
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It was very difficult to gain access to information on policing in Zambia as much of the information is deemed not to be for public consumption. This is also the case with information held by police authorities on criminal cases involving human rights violations by police officers.
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The legislative and constitutional provisions on the ZPS 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.
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The Zambia Police Servicelacks adequate operational capacity and consists of only 13Â 000 officers, less than half the ideal complement of 27Â 000 officers. The current recruitment drive is inadequate to attract the required numbers.
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The Zambia Police Servicelacks investigative capacity and because of the lack of credible evidence, mainly resulting from poor investigation, some crimes have not been prosecuted. Linked to this is the unavailability of forensic capacity; forensic samples are sent to the University Teaching Hospital or abroad for analysis. The limitations translate into a relatively low successful prosecution rate.
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Recent reforms through for example the Zambia Police (Amendment) Act, 1996(Act 14 of 1996) have sought to target institutional weaknesses.Victim support units have been established to address the needs of specific target groups such as women, children and the aged. The units have made notable progress in spearheading a vigorous education and sensitisation campaign aimed at changing the mindset of the police and public towards vulnerable persons.
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Zambia’s private security industry has been growing rapidly. There is not much legislation aimed directly at this section of crime prevention in Zambia and regulations aimed at holding the private security industry accountable for its actions are also weak.
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There have been efforts to strengthen the oversight mechanisms and the Zambia Police Service – among others - is subject to parliamentary oversight. Other measures include:
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The designation of custody officers to improve the conditions of police detention
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The establishment in 2003 of the Police Professional Standards Unit to investigate corruption, arbitrary arrests and detention, and other unprofessional behaviour within the Police Service
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The establishment of the Public Police Complaints Authority in 2003 with powers to investigate complaints by the public against the police. The Authority submits its findings and recommendations to the Director of Public Prosecutions, Inspector General of Police and Anti-Corruption Commission
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The establishment of the Commission for Investigators under an Investigator General who deals with complaints of abuse of power such as arbitrary decisions, improper use of discretionary powers, unnecessary or unexplained delays, misapplication and misinterpretation of laws, etc
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Despite the many oversight mechanisms, the system remains weak. The Police Professional Standards Unit has dealt with only three cases since its inception, and since the establishment of the Public Police Complaints Authority it has received 825 complaints but has made only 45 rulings and dismissed only 13 officers for abuse of authority. Part of the problem is that many citizens do no know their rights or where and how to seek redress.
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There is still a high level of police brutality and abuse of human rights by police officers.
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The police training curriculum has recently been reviewed to include human rights law as a subject. The entry qualification for police officers was increased to a Grade 12 full certificate.
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There is a rather negative public perception of the Zambia Police Service. Half the Zambian participants in this study were not satisfied with the performance of the police force. Seven in ten Zambians polled were dissatisfied with the way in which the police handled crimes. The public complains of poor or no response to crime calls, a lack of professionalism in handling offenders, the use of unnecessary violence in apprehending suspects, and a violation of the rights of persons in police custody. As a result, the public has lost confidence in the service and it does not seem to have much credibility or integrity.
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Factors which have impacted negatively on people’s access to law enforcement services largely stem from shortcomings inherent in the service. These include (i) a shortage of police officers, (ii) police arriving late at crime scenes, (iii) the long distances people have to travel to police stations or police centres, (iv) perceived corruption in the service, and (v) lack of protection of whistleblowers.
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Despite the overall negative perceptions of the police, it was found that the public image of the Police Service has been improving, largely as a result of the operationalisation of structures created through reforms such as victim support units and the Police Public Complaints Authority.
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While recent reforms - particularly the establishment of victim support units and the Public Police Complaints Authority - are to be commended, findings show that there is limited awareness among members of the public of their rights and of the functions of these structures. To maximise the benefits of these institutions and reduce police victimisation and violation of people’s rights, an awareness campaign should be developed and implemented countrywide.
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Lack of or limited capacity in many key areas was found to be one of the major weaknesses of the public law enforcement agencies that formed part of this review. There is a particular need to strengthen capacity in the areas of policing, upholding the rule of law and respecting human rights. Furthermore, professional training of police officers should include modules on accountability and public trust.
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The construction of a reliable and modern laboratory for forensic analysis is critical to the effective functioning of the Zambia Police Service.
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To offset the impact of HIV/AIDS, appropriate measures should be taken, such as (i) training officers to replace those who have died from AIDS and planning for those who are infected by the HIV virus; (ii) embarking on effective HIV/AIDS awareness programmes; (iii) conducting a baseline study on HIV/AIDS in public institutions; and (iv) mainstreaming HIV/AIDS in the operations of security organisations to protect the staff and their communities.
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The Inspector General of the Zambia Police Serviceshould be appointed by an independent body such as a parliamentary committee or an appropriate service commission and ratified by Parliament.
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Current oversight mechanisms such as the Public Police Complaints Authority need to be strengthened.
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An independent police complaints authority should be established to ensure effective investigation of human rights violations by police. To be truly effective, such an authority should have full powers under law to deal with complaints, including enabling powers to order the release of persons held unlawfully and powers to order immediate access to police dockets, statements and post mortem examination reports.
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Domestication of the ratified Convention Against Torture is essential, and evidence shown to have resulted from torture should be inadmissible in a court of law, in conformity with article 15. This can be done partly by criminalising acts of torture by members of government law enforcement agencies and other security institutions.
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It is recommended that a research facility or criminal justice inspectorate be established to provide regular reports to Parliament on the state of policing and the criminal justice system in the country.
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Zambia has a dual legal system made up of general law and customary law. This duality applies to a limited extent to criminal cases. Although most offences are dealt with in terms of statutory law, some minor offences may be handled under customary law. The general law system is conceptually superior to the parallel traditional customary law system. However, the concepts of crime and punishment in the customary law system are known and understood by the majority of the population.
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Equality before the law and the right to fair trial are guaranteed in the Constitution.
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Zambia’s local courts, the courts of first instance 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. Despite the substantial difference in approach between the local courts and the higher courts of record, the former are considered to form an integral part of the formal court system.
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Proceedings are held in open courts in order to ensure transparency and are only held in camera if it is in the interests of justice. Very few offences - only murder, armed robbery and treason - are non-bailable.
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The 464 local courts are the fastest when it comes to resolving disputes, partly because they have the simplest procedure. Since the presiding justices have no knowledge of any law other than customary law, the local courts are unlikely to handle the trial of specialised offences such as corruption.
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With regard to court performance, there is a low rate of disposal of cases resulting in a large backlog that grows every year. For example in 2005, of 98Â 709 offences reported to the police nationwide, only 38Â 858 cases were taken to court. Of these, 4 415 were carried over to the next year. These figures also indicate that levels of crime are relatively high for a population of 12 million. In addition, some 40 judges are insufficient to service a nation of 12 million people.
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The legal system in Zambia has a limited ability to address high crime levels because of inherent structural problems and resource constraints. One of the reasons for the poor performance of the courts is a lack of infrastructure and human resources. Human resource restraints start with poor conditions of service for magistrates – they are employed on contract rather than on a permanent, pensionable basis.
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The poorest infrastructure and conditions of service are found at local court level. Local courts are serviced by justices who have not received any formal training.
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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 also still responsible for mobilising 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.
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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.
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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. The National Legal Aid Clinic for Women (NLACW) and the Legal Resources Foundation (LRF) are the principal organisations active in this field. However, the capacity of the NLACW to provide significant relief is limited as it is donor dependent and does not have the logistical support required to meet the challenges of providing legal services to the poor.
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The death penalty is still on Zambia’s statute book.
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Judges enjoy adequate independence at both institutional and individual level. Independence of the judiciary is secured through an objective process of appointment and secure terms of tenure of office and termination of employment. However, significant differences exist with regard to these aspects for judges and members of the lower bench. Whereas judges of the higher court are appointed by the executive and their appointments are ratified by Parliament, members of lower courts are appointed by the Judicial Services Commission.
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The behaviour of adjudicators is kept in check by the Judicial Code of Conduct Act, 1999 (Act 13 of 1999) which created the Judicial Complaints Authority to oversee the conduct of adjudicators. The Authority is made up of a complaints committee of five persons to whom any member of the public can address a complaint against a judicial officer. The fact that the Act does not cover court officials such as the Chief Administrator and other senior professional and administrative staff is one of its major weaknesses. The complaints procedure is confidential and proceedings are held in camera, and review participants felt that this inhibited transparency.
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The funds of the judicature consist of such monies as may be allocated by Parliament and grants and payments in the form of court fees and fines. The judicature has been funded substantially by donors both in terms of capital projects and various programmes. However, general funding remains problematic, particularly with regard to resources for managing the judicial process and paying support staff.
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Under the Judicature Administration Act, 1994 (Act 42 of 1994) the courts are administered separately from the Ministry of Legal Affairs and the Judicial Service Commission has the power to appoint the staff of the judicature. However, despite its new autonomy and improvement in the salaries of judges, the salaries of magistrates and court justices remain unsatisfactory. This has contributed to allegations of corruption by adjudicators, even at the highest level.
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The gender composition of the adjudicators is unsatisfactory. There are still considerably fewer female than male adjudicators.
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Most local court officers are drawn from a pool of retired civil servants who are poorly qualified for the position. This situation is exacerbated by their three-year contracts, which make impartiality problematic. Very few magistrates have trained as lawyers. The poor qualifications of persons manning the lower courts and the absence of lawyers at this level compromise the quality of justice dispensed to citizens who use these services.
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Juvenile justice is governed by the Juvenile Act, 1956 (Act 4 of 1956), as amended, but the definition of a child varies depending on the context and piece of legislation. The fragmented legal framework complicates the delivery of justice to juveniles, with numerous articles relating to children scattered among different statutes. In addition to constitutional and statutory legislation, customary law also regulates matters concerning children. In the same fragmented manner, the legislation on children is implemented through five different programmes while different ministries share the responsibility for the welfare of children – but not necessarily in a coordinated manner.
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The government has embarked on a law reform process to review various pieces of child-related legislation in order to harmonise them and bring them in line with the general principles of the United Nations Convention on the Rights of the Child. However, the process is slow and has on occasion stalled and there is still a lack of clarity regarding progress.
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Zambia has ratified the United Nations Convention on the Rights of the Child, although its provisions have not been domesticated.
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Children are not separated from adults whilst detained at police stations prior to court appearances, mostly because police stations do not have the necessary facilities. Detained juveniles experience the same hardships as adults. There is no special provision regulating the procedure to be followed when children are arrested, either.
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The subordinate court, which is manned by non-lawyers, can constitute itself into a juvenile court in order to try a juvenile offender. Pre-trial detention is discouraged for fear of contaminating juveniles. Corporal punishment was outlawed by the courts as inhuman and degrading punishment is discouraged, but there is no Act in place that prohibits corporal punishment in all settings and children are still subjected to humiliating and demeaning punishment.
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Some innovative measures have been introduced to improve the juvenile justice system, for example an arrest, reception and referral service for arrested children, a child friendly court, and a diversion programme.
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The majority of the respondents indicated that it was difficult to access justice with poverty and existing institutional arrangements being cited as the major barriers to access.
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Among the poor and women there is a very low awareness level of the availability of formal justice mechanisms. People - especially the poor - tend to feel comfortable with the dispute resolution mechanisms they are used to and prefer them to formal court procedures. It has the added advantage that people are rarely required to travel beyond their areas of residence.
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In general, court fees do not hinder access, but what is prohibitive is the cost of legal representation. Given the serious limitations and constraints faced by the Legal Aid Board, most poor people are unable to engage legal practitioners to represent them in court.
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The Legal Resources Foundation was singled out as an institution that has been effective in providing legal services free of charge to the poor. However, access to the services provided by paralegal personnel is limited because the few institutions that do provide paralegal services are restricted to a limited number of districts and provincial capitals.
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The small number of courts situated in the countryside is a limiting factor in accessing justice. Where these courts do exist their condition is often unsatisfactory.
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Delays in court proceedings discourage people from taking disputes to formal courts of law. The time it takes for cases to be heard and disposed of by the courts is of great concern, with adjournments at the insistence of legal practitioners or the courts being a major source of delay.
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On the whole, the remuneration packages and conditions of service of judges are adequate to ensure delivery of justice and dissuade them from succumbing to corruption.
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However, improved conditions have not been extended to the industrial relations court and the lower bench. Despite handling sensitive cases, magistrates remain vulnerable to dismissal as many of them are employed on contract. Their remuneration packages are minimal.
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Judges are not considered to be gender sensitive. Promotion of equality, particularly gender equality, was considered to be problematic in the rural areas because of the influence of gender-biased customary laws.
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Knowledge and use of international human rights instruments relevant to the administration of justice are poor, especially in the rural areas. Even judges did not display substantially greater knowledge than ordinary citizens of international instruments and the extent to which these had been incorporated into domestic criminal law and procedures.
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Despite random reforms to several laws, Zambia for the most part still uses old English laws, practices and procedures which have since been modernised in England.
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The government should strengthen and intensify projects already under way to implement human rights standards, guard the independence and impartiality of the judiciary, and improve infrastructure and conditions of service of adjudicators.
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Zambia should place an immediate moratorium on the use of the death penalty. This would also align Zambia with international and regional trends towards abolition of the death penalty.
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Governmental and non-governmental legal aid institutions require resources and support to improve access to justice by the poor. The many problems experienced by the Legal Aid Board are a clear indication of inadequate funding. Mechanisms should be developed to ensure that the Legal Aid Board has a presence, especially in the rural districts. The training of paralegal personnel should be formalised and guidelines developed to ensure a professional standard of work. It is important that the board be separated from the Ministry of Justice. As an independent body, it would be able to effectively plan the expansion, hiring and retention of staff as well as mobilise resources from both the government and cooperating partners.
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The development and provision of infrastructure to host courts is a critical element in accessing justice. A holistic approach should be adopted to ensure that, where possible, recruitment and placement of judicial officers and the expansion of court space take place simultaneously.
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Some of the inordinate delays in disposing of cases are the result of the absence of effective case management techniques. The management of cases within the judiciary should be improved, for example by introducing electronic record-keeping to monitor court proceedings in the superior courts.
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It is essential to improve coordination and networking of agencies involved in the delivery of criminal justice and to strengthen partnerships between the government and NGOs. In this regard, the activities and infrastructure of the NLACW should be extended to rural areas and expanded urban areas as a critical step in increasing access to justice for poor and vulnerable women.
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Training programmes should be launched to improve the skills of personnel involved in the delivery of criminal justice in general and in gender, juveniles and human rights issues in particular.
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There should be an audit of the domestication of international and regional treaties and conventions and their ratification by the Zambian government. This should be followed by a programme to domesticate the treaties and conventions.
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Legislation relating to juvenile justice should be reviewed and modernised as a matter of urgency.
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Zambia has 53 prisons, 10 medium security prisons, 3 remand prisons and 1 reformatory.
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The prisons are dangerously overcrowded. In 2007 they had a capacity of 4Â 000 but in the last half of the year held 14Â 894 inmates: 6Â 073 of these had been convicted and the rest were on remand. This means that almost 57 per cent of the prison population was on remand. The remandees are kept in overcrowded prisons and are held together with convicted criminals under inhumane conditions. The increased prison population has not been matched by physical extensions to the prison facilities. The congestion contributes to sodomy and homosexual practices in prisons.
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Despite a threefold increase in the prison population since independence in 1964, the staff complement has increased from 1Â 800 then to only 1Â 856 by mid-2007. This translates to a ratio of staff to prisoners of just over one staff member for just over three convicted prisoners (1:3,06) and one staff member for every eight prisoners if all inmates are included.
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The Prison Service budget has been inadequate for many years and many of the problems that it is experiencing is in fact a direct result of the lack of financial resources to support its operations.
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An offender management unit has been established with the objective of reintegrating prisoners into society upon their release from prison. The programme has been relatively successful if measured in terms of the reduction in recidivism.
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Lack of sleep as a result of overcrowding has emerged as one of the biggest problems facing prisoners. At some prisons, prisoners sleep on the floor while others are so overcrowed that prisoners sleep while standing. Bedding in the form of mattresses and blankets are still in short supply in most prisons. Food is inadequate both in quality and quantity. However, it was found that the government has initiated measures to address the problems relating to food and at least provide prisoners with blankets.
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Apart from tuberculosis, HIV/AIDS and other sexually transmitted diseases are the most dangerous diseases faced by prisoners, a situation that is exacerbated by overcrowding. The major risk behaviours for HIV transmission identified in prisons include homosexual practices between male inmates, tattooing, sharing of needles during drug use, and sharing of shaving instruments.
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The Zambia Prison Service has an elaborate HIV/AIDS and STI/TB workplace policy whose main objective is to prevent transmission of these highly infectious diseases.
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Prison clinics lacked drugs and in some prisons there were no medical facilities to dispense medication or provide treatment.
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Delays by the criminal justice system in disposing of cases partly account for the overcrowding, with poor case flow management, work stoppages and strike actions being contributing factors. Some remandees are kept on expired warrants or without warrants.
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The Prison Service has historically had to contend with low funding levels from government. A lack of sufficient funds is the root cause of many problems that confront the Prison Service.
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Transport is often unavailable for prison activities such as collecting firewood and transferring remandees to court.
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Most prisons in Zambia were built for males and have no separate facilities for females. Pregnant female prisoners receive ante-natal and post-natal care and baby clothes and other necessities at government expense. In the case of female prisoners with young children, the children are allowed to remain with their mothers in prison until they are four years old. Women constitute a very small proportion (about 3 per cent) of the total prison population.
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The appropriate detention of children in conflict with the law is provided for in a number of conventions. Zambia has ratified the United Nations Convention on the Rights of the Child, although its provisions have not been domesticated. The Permanent Human Rights Commission has reported incidences where juvenile prisoners have been kept in the same cells as adults. In many cases, the juvenile prisoners are ill-treated and indecently assaulted by older inmates.
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Beatings and cruel treatment of prisoners do occur but these are normally not reported to higher prison authorities, or where they are reported, no action is taken. There have been reports of abuse of prisoners such as prisoners being forced to dance to entertain the public. Prison officers have also used prisoners to work in their private gardens or perform other manual work at officers’Â homes.
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Most inmates have no problem gaining access to their lawyers and relatives, friends and well-wishers are usually allowed to visit inmates, generally on weekends. The inmates are also allowed to receive food or such necessities as soap or plates from relatives or visitors.
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There have been some recent improvements to the Prison Service:
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The government has taken steps to procure uniforms for prisoners and staff
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There has emerged a political will to resolve transport problems affecting the Prison Service, and cargo trucks, utility vans, buses, ambulances and speed boats have been procured. The funding for this and for other requirements such as irrigation systems were provided from outside the normal prisons budget
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To lessen problems caused by congestion, attempts have been made in 2004 to shift the focus to the rehabilitation of prisoners and the establishment of open-air prisons. Illegal immigrants are also no longer imprisoned but receive special temporary permits. There are efforts to separate juveniles from adults and female suspects are placed on police bond where there are no facilities for detaining women.
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Zambia has ratified a number of conventions which establish international and regional human rights standards with regard to prisoners and also signed non-binding international instruments that are intended to give prisoners full access to justice. However, Zambia has not domesticated the majority of these instruments and hence they cannot be used to give prisoners full access to justice.
