Abstract
Zambia has established comprehensive legal frameworks to safeguard the rights of children, particularly those in conflict with the law, recognizing their vulnerability and special needs. The Constitution and the Children’s Code Act provide a structured approach to children’s justice, emphasizing accountability, protection, rehabilitation, and social reintegration. In this writing will critically examine the legislative framework that govern criminal responsibility of a child.
INTRODUCTION
A child is defined by Article 266 of the Constitution of Zambia, as a person who is below the age of eighteen years. Similarly the common law definition of a child as stated by the Constitution court of Zambia in the case of People V John Sinkamba As any person who is eighteen years and below. However the critical question for debate is “at what age is a child held criminally responsible for any act or omission. Thereof, Section 14 of the Penal Code Act, states that
(1)any person under eight years (8yrs) is not criminally not criminally liable for any act or omissions, further subsection (2) states that a person under the age of twelve years is not criminally responsible for an act or omission unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.”
This means that a child who is eight years old cannot be convicted or tried for criminal offence because they are physically and lack the necessary men’s rea to intend to commit such act. Further subsection (2) entails that a person who is 12 to 9 they are not criminally liable unless it is proved that at the time of committing the act, they possessed the necessary men’s rea.
WHAT HAPPENS WHEN A CHILD IS FOUND GUILTY OF CRIMINAL OFFENCE
In Section 45 of the Children’s Code Act, the Act outlines the principles governing child liability and restricts the scope of criminal proceedings against children, ensuring that the law focuses on protection and rehabilitation rather than punishment. Children in conflict with the law are entitled to specific rights and protections under the Children’s Code Act . Section 46 Children’s Code provides for the right to privacy and protection of identity from media exposure, applicable from apprehension through custody and court proceedings. The Act further guarantees the right of a child to remain silent during arrest, investigation, court proceedings, or while in custody, and this must be communicated to the child at the time of apprehension.
A recent illustration of child protection in practice is the case of 34 individuals charged with terrorism related to the November 8, 2025, stone-throwing attack on President Hakainde Hichilema in Chingola. The Chingola Subordinate Court granted bail to nine children, highlighting the judiciary’s adherence to child-centered procedures and prioritization of rehabilitation over incarceration.
HOW AN ARREST OF A MINOR AUGHT TO BE CONDUCTED
Procedures for the apprehension and arrest of children are strictly regulated to protect their dignity and well-being. Sections 47 and 50 of the Children’s Code stipulates that an arrest by a law enforcement officer should generally occur in the presence of a parent, guardian, close relative, person with parental responsibility, or a child welfare inspector. Arrests at the child’s home are generally prohibited in uniform or with a firearm unless there is imminent danger to safety.
Section 53(6) of Children’s Code Act further mandates that during questioning or interviews related to an alleged offence, a parent, guardian, child welfare inspector, legal representative, or close relative must be present. For minor offences, law enforcement officers may opt to issue an informal caution (a verbal warning without record) or a formal caution instead of proceeding with an arrest.
The deprivation of a child’s liberty is considered a last resort and may not exceed forty-eight hours (48hrs). Children detained at police stations must be held separately from adults, with male and female children housed separately and under the care of an adult of the same sex. Section 54 provides that a child under arrest shall be released on recognizance, either personally or through a parent, guardian, or relative, unless the offence is classified as serious that is, punishable by death, life imprisonment, or a term exceeding three years. Even where the offence is serious, the child is not automatically denied release. The law only allows detention if necessary, and even then, the child must be placed in a place of safety, not a police cell or adult prison, and only within strict time limits. If bail is not granted, the child must be placed in a place of safety, excluding a child approved center or reformatory, within forty-eight hours of arrest.
The High Court, in The People V G M ( clarified that the Children’s Code Act takes precedence over the Criminal Procedure Code (CPC) regarding bail for children.
Specifically, the argument advanced by the State relying on Section 123 and the 2nd Schedule to the CPC, which classifies serious offences like aggravated robbery as non-bailable for adults, was deemed not tenable for child applicants.
The Court held that Section 73(2) of the Children’s Code is self-contained and that no offence is expressly non-bailable under the Act. The legislature intended that all children, including those charged with serious offences, be released on bail unless a court finds a significant danger to the child or the community. Courts are required to record reasons for any refusal of bail and inform the child of the right to apply to the Children’s Court. Children may be remanded to child transit centers if bail is denied, but under no circumstances should they be placed in adult prisons or correctional centers. The remand period may not exceed ninety days except for offences punishable by death, where it is limited to 180 days.
In Zambia, child transit centers are temporary, protective facilities established under section 99 of the Children’s Code Act No. 12 of 2022 to cater for children in conflict with the law or children in need of care and protection who cannot immediately be released to their parents or guardians.
The children’s justice system in Zambia is a reflection of a child-centered approach that balances accountability with protection, rehabilitation, and reintegration. The law guarantees that children who are in conflict with the law are handled delicately and with consideration by upholding the rights to bail, fair treatment, and privacy as well as by tightly controlling the processes of arrest, custody, and remand. The judiciary’s dedication to the Children’s Code Act is primacy and the values of rehabilitation over punitive measures is demonstrated by recent case law, which includes bail requests for minors accused of serious crimes. This represents a step forward in bringing national law into compliance with international norms.
ABOUT AUTHOR: Thomas Chilamba is a third year law student at the Copperbelt University he writes in his own capacity.
BIBLIOGRAPHY
Statutes
Constitution of Zambia (Amendment) Act of 2025
Constitution of Zambia (Amendment) Act No. 2 of 2016
Children’s Code Act No. 12 of 2022, Laws of Zambia
Criminal Procedure Code Act, Chapter 88 of the Laws of Zambia
Penal Code Act, Chapter 87 of the Laws of Zambia
Cases
People V John Sinkamba (2025/CCZ/R001) [2025] ZMCC 14 (Constitutional Court, 28 July 2025)
People V G M (HPJ062022) [2023] ZMHC 61 (High Court of Zambia)
The People V G M (HPJ062022) 2023 ZMHC 61