CRIMINAL JUSTICE IN ZAMBIA: AN OVERVIEW HIGHLIGHTING THE CHALLENGES AND OPPORTUNITIES
Introduction
Criminal justice is a
fundamental aspect of any society and is as broad as it is important. According
to Black’s law dictionary (8th edition, 2004) criminal justice is
defined as the methods by which a society deals with those who are accused of
having committed crimes. In other words, criminal justice refers to the process
of delivering justice to those accused of crimes. Due to the colonial history
of Zambia, a huge difference can be seen from pre-colonial Zambian criminal
justice and the post-colonial criminal justice. Current day Zambian criminal
justice is based on a combination of English common law and African customary
law due to the effects of colonization as may be seen with many African
countries such Nigeria (Noel Out, 1999). This process has now been codified and
is enshrined in the country’s statutes as well as in numerous landmark cases by
the judiciary. However, it is worth noting that despite the importance of
criminal justice being highly recognized in the country, Zambia still faces
numerous challenges. This article provides an overview of the concept of
criminal justice, highlights the challenges it faces in Zambia, and discusses
opportunities for improvement.
While criminal justice is the
process of delivering justice to those accused of crimes, the criminal justice
system is a network of government agencies and institutions that carry out the
process. These include law enforcement agencies, court systems and correctional
and rehabilitation services which seek to control problematic human behavior and
maintain collective security (Brandy X. Lee, 2016). However, the primary focus
of this article is solely criminal justice. In the words of Maya Angelou, you
cannot know where you are going until you know where you have been, hence a
look at the history of criminal justice in Zambia is cardinal to understanding what
the process entails. Zambia was officially colonized in the year 1899 by the
British colonial rule. Prior to the colonization, the native people of Zambia
practiced traditions and rules of customary law which they had enforced through
their traditional elders, leaders and chiefs. It was specifically tailored to
the needs of the people and was informal in nature hence was unwritten (Muzambalika
Simwatachela, 2005). It was very flexible as it was applied on a case to case
basis.
In the year 1899, the
Barotseland-North Western Rhodesia Order in Council was established and defined
Barotseland North Western Rhodesia (Mutumba Mainga Bull, 2014). The implication
of the order in council was that provision was created for the appointment of
judges and magistrates thus paving way for the establishment of the High Court
and Subordinate Courts in the territory. It also provided some form of
protection for customary law, though no official recognition was given to
tribal courts. It therefore
established the superiority of English common law over African customary law.
Therefore, English Common Law was the standard way in which criminals were
dealt with and the justice that suited the needs of the people at that time
like witchcraft was altered. This marked the pivotal transition from customary
law to common law application in criminal justice as was seen in the case of R v. Luka Matengula and three others (1951,
LRNR 148,151) in which the courts
held that:
“….. the “pointing out” tradition was unacceptable as it is
against justice as we the people in England see it.”
This case established the
standard by which justice was to be delivered.
In the year 1964, Northern
Rhodesia obtained its independence from the British colonial rule and became
known as the Republic of Zambia Roberts (Andrew D, 2024). The country was no
longer bound by the rules of English common law. However, it did create
residual law that is actively present in our laws today (Dr. Munalula, MM,
2004) and can further be seen in the case of Shamwana and 7 others v. The people (1985, ZMSC 9). In the Shamwana
case, common law was heavily relied upon
to render the judgement as there was no active law with regards to the
subject matter in issue. Statutes
such as The Constitution of Zambia, Penal Code, National Prosecutions Code,
Criminal Procedure Code, National Prosecution Authority Amendment Bill of 2023,
Anti-Human Trafficking Act, Children’s Code Act, Anti- Gender Based Violence
Act and the Zambia Police Act all demonstrate how criminal justice has been
enshrined in legislation in Zambia but still carries influence from English
common law. This therefore has created the backbone
on which criminal justice in Zambia lies.
Challenges
Due to the dualistic nature of
criminal justice in Zambia, as well as the general nature of the social science
which is law, criminal justice in Zambia faces numerous challenges in its
implementation. One of the major challenges is corruption whose effect is that
people can no longer count on prosecutors and judges to do their jobs diligently,
hence allowing powerful culprits to escape justice. Citizens, especially those
with few resources, may be unfairly accused of crimes, deprived of due process
and wrongly imprisoned (Unite Nations Office on Drugs and Crime, ‘Module 1:
What Is Corruption and Why Should We Care?’). This in turn undermines public
trust as the public perceives the justice system as corrupt and bias (Tiwalade
Aderoju, 2023).
Corruption and justice are
closely linked in a complex and inverse relationship. Where justice prevails
there is little room for corruption, but where corruption thrives, it throws
the scales of justice out of balance (Roberto Martinez, 2024). The exceeding
presence of corruption therefore poses a threat to the execution of criminal
justice as well as the safeguarding of human rights in Zambia.
In addition, as a developing country, the lack
of infrastructure and resources has also proven to be a bar to criminal justice
as it hinders the effective administration of justice. It must be noted that
Zambia launched its first Forensics DNA Laboratory in the year 2023 at Levy Mwanawasa
Medical University. This was a monumental improvement for criminal justice, but
also highlighted how limited access to modern technology is for Zambia and how
it hinders the ability to investigate and prosecute crimes effectively (Mercy
Khozi, 2023). Moreover, many personnel within the criminal justice system lack
the necessary training and capacity to effectively perform their duties enforce
the law (Kafwilu Kamenji Chinambu, 2023). This can result in miscarriages of
justice, human rights violations and a lack of trust by the public in the criminal
justice system. This can be seen from the case of Mwewa Murono v. The people 2004 in which due to the lack of modern
technology, it was difficult to prove beyond reasonable doubt that the accused
did in fact kill the deceased. Furthermore, the case of the Attorney General v. Mofya (SC) [1995, ZMSC 15] also reflects how
the negligence of the police can result in a blockage of justice. If the
behavior of the cardinal members of the institutional framework of the Zambian
criminal justice system act in an inconsistent manner with the basic
fundamentals of justice, then the expectation for criminal justice is greatly
lowered.
The Zambian Criminal Justice
System is meant to protect the purity of criminal justice, failure to do so
results in tyranny. There is a high level of human rights violations especially
by the police within the society (Kafwilu Kamenji Chinambu, 2023).
This reduces the level of trust and the integrity of the entire system at
large. Between the 8th and 9th of December, 2024, four
police officers were detained for having allegedly raped a drunk 18-year-old (Chomba
Musika, 2024). The possibility that such an event could have occurred in the
said circumstances speaks volumes about the state of the criminal justice
system and the complications that exist within it. The violation of the Right
to Freedom of expression can be seen in the case of Christine Mulundika and 7 Others v. The People (1995) S.J). In
addition to this, the high levels of pre-trial detainees who are innocent until
proven guilty are forced to live in terrible living conditions within the prisons
which is an infringement of their rights to criminal justice (Chipo Mushota Nkhata,
2017).
There exist social and cultural
barriers within the country that pose a threat to criminal justice such as
child marriages and other customary practices. Zambia has one of the highest
rates of female child marriage in Africa with a reported national prevalence of
42% (Challenging Disadvantage in Zambia: People with Psychosocial
and intellectual disabilities in the criminal justice system,’ 2021). Child
brides often lack autonomy and an agent to report such crimes due to their
vulnerable position. Traditional dispute resolution mechanisms are often repugnant
to natural justice and they do not adequately promulgate criminal justice as
was seen in the case of Kaniki v Jairus
[1967 ZMHC 6]. In this case, application of customary law would have
resulted in injustice. The patriarchal norms in Zambia also contribute to
criminal injustice in that many women are discouraged from reporting cases of Gender
Based Violence as they fear being mocked.
Another challenge that the criminal
justice in Zambia faces is inaccessibility by marginalized communities. People
with psychosocial or intellectual disabilities face many challenges in Zambia’s
criminal justice system (Challenging Disadvantage in Zambia: People with
Psychosocial and intellectual disabilities in the criminal justice system,’ 2021).
These people are often the targets of prison violence due to their vulnerability.
In addition, the police are not specially trained to deal with such cases. This
becomes disadvantageous to criminal justice.
Improvements.
The
promotion of implementing Alternative Dispute Resolution mechanisms such as
mediation and arbitration would help tackle the issue of inaccessibility of
criminal justice in Zambia. The Judiciary is required to promote the use of
Alternative Dispute Resolution mechanisms (Article 118(2)(d) of the
Constitution Chapter 1 of the Laws of Zambia). If widely implemented, this will
ensure that those going through the criminal justice system are at fair
standing with others. More so, time and resources will not be wasted, hence
promoting criminal justice. In addition to this, promoting community justice
based initiatives such as The Legal Aid Initiative, Choma Justice for All
Network, and Chapter One Foundation will promote and spread the knowledge of
the law hence eliminating legal illiteracy despite one’s educational
background.
Leveraging technology to enhance
justice delivery can also fix the challenge of inaccessibility of the law with
regards to criminal justice. An example could be seen from the recent case of Michelo Chizombe v. Edgar Chagwa Lungu and
Others (2024, ZMCC 27) which was broadcasted live via Zambia National
Broadcasting Corporation to all citizens. If more landmark cases cardinal to
the development of the law could be aired, then particular attention would be
given to the quality of the content due to the level of transparency and mass
scrutiny hence ensuring proper criminal justice.
With regards to the Criminal
Justice System specifically the police force, there should be a detailed
requirement check list that must be satisfied before any individual is admitted.
Ideally a legal education background must be required to ensure the officers
admitted are advocates for justice. A thorough background check must be done
for each officer and in the absence of a legal background, an additional one
year six months of training must be added to adequately know the law and equip
themselves with the necessary skills.
Conclusion
Criminal Justice is a
fundamental aspect of any society and it is essential that it is administered
effectively and efficiently. In Zambia criminal justice has numerous challenges
including corruption, lack of resources, and inaccessibility to marginalized
groups. These however are also opportunities for improvement with a revision of
the criminal justice system and its effectiveness in delivering criminal
justice to all. Additionally, it is a call to members of the nation to play a
more active role in holding those in charge accountable and striving for a
better tomorrow.
BIBLIOGRAPHY
Statutes
Article 118(2)(d) of the Constitution Chapter 1 of the Laws of Zambia.
Cases
R v Luka Matengula and three others (1951) LRNR 148,151
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Mwewa Murono V The People (2004) Z.R. 207 (S.C.)
Attorney General v Mofya (SC) [1995] ZMSC 15 (21 March 1995)
Christine Mulundika and 7 Others V the People (1995) S.J.
Kaniki V Jairus (1967) Z.R. 71 (H.C.)
Michelo Chizombe v Edgar Chagwa Lungu and Others (2023.CCZ/0021) [2024] ZMCC 27(10December 2024).
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