A CRITICAL ANALYSIS ON THE SURBORDINATE COURTS: PROSECUTION AND
TRANSFER OF CASES TO THE HIGH COURT BEYOND THEIR JURISDICTION
BY
BRIAN MULAUZI
(2017010413)
A DISSERTATION SUBMITTED TO THE UNIVERSITY OF ZAMBIA IN PARTIAL
FULFILMENT OF THE REQUIREMENTS FOR BACHELOR OF LAWS
UNZA
2021
i
COPYRIGHT DECLARATION
I MULAUZI BRIAN, computer number 2017010413 do hereby declare that this dissertation
presents my own work and that to the best of my knowledge, no similar piece of work has been
previously submitted for the award at this University or another University. Where work of another
scholar has been used, it has been duly acknowledged.
All rights reserved including the right of reproduction and reprinting in part or in whole in any
form without the author’s prior authorisation.
........................................
....................................
Student’s signature
Date
ii
THE UNIVERSITY OF ZAMBIA
SCHOOL OF LAW
I recommend that the Directed Research Essay under my supervision
By
Mulauzi Brian
Entitled:
A critical analysis on the subordinate courts: Prosecution and transfer of cases to the High Court
beyond their jurisdiction.
Be accepted for examination. I have checked it carefully and I am satisfied that it fulfils the
requirement pertaining to the format as laid down in the regulations governing obligatory essays.
………………………………
………………………...
SUPERVISOR
DATE
iii
DEDICATION
I wish to dedicate this research to the loving memory of my late Mother Ms Agnes Dube for her
unwavering love, support, care and guidance that she rendered upon my life during her days on
earth. To her I will forever remain indebted as I owe everything that I’m today to her. May she
continue resting in peace till we meet again.
I would also like to dedicate this research to my siblings; Hellen Mulauzi, Simingani Mulauzi,
Rodine Mulauzi, Adam Mulauzi and Thabani.F. Mulauzi, Not forgetting my cousins counsel Jeff
Dube and Honest Dube for always pushing and encouraging me, hence keeping my dream alive.
Lastly, I dedicate this research to the University of Zambia, School of Law for the opportunity
rendered to me to contribute my little knowledge to the schools ever growing and impressive host
of legal knowledge.
iv
ACKNOWLEDGEMENT
First and foremost, my heartfelt thanks and gratitude to my loving God Almighty for the
unwavering love, blessings and endless mercies that he has continued showering upon my life. Not
forgetting the privilege and opportunity that he gave me to study law at one of the most prestigious
schools in Zambia.
Special thanks to my friends; Misheck Mumba, Steven Phiri, Philip Sibanda, Ruth Chanda and
Shida Sande for being there when I needed help and pushing.
Last but not the least thanks to my supervisor Mr. Kaluba and to our course coordinator Dr Kaaba
for their patience, tolerance and guidance.
v
ABSTRACT
This research sets out to critically analyse the subordinate courts prosecution and transfer of cases
to the High Court beyond their jurisdiction. This was necessitated by the observation that the
realisation of the fundamental right to a speedy and fair trial is limited by factors such as the aspect
of Subordinate Courts deliberating on cases beyond their sentencing power and subsequently
transferring them to the High Court for sentencing.
In light of the above it is imperative to evaluate firstly, the criminal and civil jurisdiction of the
subordinate courts. Secondly, determining the importance of realising the right to a speedy and
fair trial in subordinate courts and thirdly examining the challenges that hinder the realisation of
the right to a speedy and fair trial. Furthermore, this research lays bare the factors that undermine
the efficiency, transparency and accountability of subordinate courts in the dispensation of justice.
The right to a speedy and fair trial is a norm of international human rights law and also adopted by
many countries in their procedural law. It is designed to protect individuals from the unlawful and
arbitrary curtailment or deprivation of their basic rights and freedoms, the most prominent of which
are the right to life and liberty of the person. The concept of speedy and fair trial is based on the
basic principles of natural justice. Though the form and practice of the principles of natural justice
may vary from system to system on the basis of prevailing conditions of the society concerned.
The formal account of the concept of fair trial has been accepted as human rights jurisprudence in
the Universal Declaration of Human Rights, 1948 (hereinafter as UDHR).
This research has used the desk research approach, collecting and reviewing both primary and
secondary sources. The information was collected through desk review of relevant legislation, case
law, international conventions, journal articles, reports, investigations on the fundamental right to
a speedy and fair trial as well as those providing profound insight on subordinate courts.
The major findings of this research are that the jurisdiction of Subordinates Courts is limited. This
basically entails that it cannot deliberate on certain issues such as cases involving succession to
chieftainship or cases involving who should be legitimately in office. Another finding is that a
Criminal defendant may voluntarily give up his or her right to public proceedings or the judge may
limit public access in certain circumstances ‘for example, a judge might order a closed hearing to
prevent intimidation of a witness or to keep order in courtroom.
The major recommendations of this research are that the judiciary, through its head, the Chief
Justice should strictly enforce the Rules on delivery of rulings and judgments and should penalize
judges that fail to meet case disposal targets. Furthermore, the state should uphold its constitutional
obligation of ensuring speedy trail of the accused by setting procedures that would guarantee that
right. Additionally, Court procedures are very complex, costly and tardy, putting the poor people
at an extreme disadvantage. Therefore, the state should ensure that the judicial disputes resolution
mechanisms are equally and effectively accessible to all its citizens for the purpose of resolution
of their legal dispute and enforcement of their fundamental and legal right.
vi
TABLE OF STATUTES
The Civil and Criminal Procedure Code Chapter 160 of the Laws of Zambia
The Constitution of Zambia (Amendment) Act 2016
The International Covenant on Civil and Political Rights.
The Subordinate Court Act, chapter 28 of the Laws of Zambia
The Universal Declaration of Human Rights 1948
vii
TABLE OF CASES
Godfrey Miyanda v. The High Court (1984) ZMSC 7
Mapowa v. The people (1979) SCZ No.10
Mataa Mataa and another v. The people (2018) appeal No. 192/193
Changala and others v. the people (1938) ZMHCNR 10
Mainza, George Mudenda and Lameck Kamanga v. The people (1981) Z.R 146 (H.C)
Hussainara Khatoon v. Home Secretary (1979) AIR 1819, 1979 SCR 1276
The People v Kasonkomona CR No. 9/04/13
Muwowo v The People (1965) ZR 91 (CA)
The people v. Basil Masauso and Patson Musenge (1980) Z.R 243 (HC)
The people v. Chaponda 1973 SCZ 26
Maketo and others v. the people (1979) ZR
viii
TABLE OF CONTENTS
COPYRIGHT DECLARATION .................................................................................................... ii
DEDICATION ............................................................................................................................... iv
ACKNOWLEDGEMENT .............................................................................................................. v
ABSTRACT ................................................................................................................................... vi
TABLE OF STATUTES............................................................................................................... vii
TABLE OF CASES ..................................................................................................................... viii
CHAPTER ONE ........................................................................................................................... 1
1.1 Introduction ............................................................................................................................... 1
1.2 Background ............................................................................................................................... 1
1.3 Statement of the Problem .......................................................................................................... 4
1.4 Research Objectives .................................................................................................................. 4
1.5 Research Questions ................................................................................................................... 4
1.6 Significance of the Study .......................................................................................................... 5
1.7 Literature Review...................................................................................................................... 5
1.8 Methodology ........................................................................................................................... 10
1.9 Conclusion .............................................................................................................................. 10
CHAPTER TWO: UNDERSTANDING THE JURISDICTION OF SUBORDINATE
COURTS BOTH IN CIVIL AND CRIMINAL MATTERS ................................................... 10
2.1. Introduction ............................................................................................................................ 10
2.2.The Establishment of Subordinate Courts .............................................................................. 11
2.3. The Jurisdiction of Subordinate Courts ................................................................................. 11
2.4. Civil Jurisdiction .................................................................................................................... 11
2.5. Criminal Jurisdiction.............................................................................................................. 12
2.6. Conclusion ............................................................................................................................. 19
CHAPTER THREE: IDENTIFYING THE IMPORTANCE OF HOLDING A SPEEDY
AND FAIR TRIAL IN SURBORDINATE COURTS ............................................................. 19
3.1. Introduction ............................................................................................................................ 19
3.2. Understanding the Concept of a Speedy and Fair Trial in the Dispensation of Justice ......... 20
3.2.1. Speedy Trial ........................................................................................................................ 20
3.2.2. Fair Trial ............................................................................................................................. 24
3.3. Merits of Having a Speedy and Fair Trial ............................................................................. 26
ix
3.4 Conclusion .............................................................................................................................. 27
CHAPTER FOUR: THE CHALLENGES THAT HINDER THE REALISATION OF THE
RIGHT TO A SPEEDY AND FAIR TRIAL IN SUBORDINATE COURTS ...................... 28
4.1. Introduction ............................................................................................................................ 28
4.2. Factors Hindering the Right to a Speedy and Fair Trial in Subordinate Courts .................... 28
4.2.1. Trial by Ambush ................................................................................................................. 29
4.2.2. Inefficiency of the Court ..................................................................................................... 33
4.2.3. Limited Jurisdiction of Subordinate Courts ........................................................................ 31
4.2.4. Inapropriate Orders ............................................................................................................. 33
4.3. Conclusion ............................................................................................................................. 36
CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS ..................................... 37
5.1. Introduction ............................................................................................................................ 37
5.2. Conclusions ............................................................................................................................ 37
5.3. Research Findings .................................................................................................................. 39
5.4. Recommendations .................................................................................................................. 39
5.5. Conclusion ............................................................................................................................. 40
BIBLIOGRAPHY ....................................................................................................................... 41
x
CHAPTER ONE
INTRODUCTION
1.1 INTRODUCTION
This research addresses the challenges that the Zambian Citizens have faced and continue to face
in the realization of the right to a speedy and fair trial particularly those set-in motion by the
Subordinate Courts in light of them trying out cases over which they have no sentencing power.
It analyses the jurisdiction of Subordinate Courts with a view to identify the importance of holding
preliminary inquiries on cases by the Subordinate Courts. It also assesses the challenges that are
faced in the realization of the above mentioned right fully. Firstly, this research will provide some
profound insight on subordinate courts in relation to their jurisdiction, establishment and functions.
This research will also evaluate in depth the constitutionality of Subordinate Courts trying cases
that are beyond their jurisdiction and sending them to the High Court for sentencing. Lastly the
research will conclude and make recommendations on how the right to a speedy and fair trial can
be realized in relation to the Subordinate Court derogation on matters.
1.2 BACKGROUND
The Subordinate Courts are established under Article 1201 of the Constitution of the Republic of
Zambia. The operation and functions of the Subordinate Courts are regulated under the
Subordinate Courts Act, chapter 28 of the laws of Zambia which provides for the Constitution,
jurisdiction and procedures as well as appeals to the High court and other matters incidental or
1
Article 120 of the Constitution of Zambia (Amendment) Act 2016
1
connected thereto.2 Subordinates Courts are controlled and supervised by the High Court through
reviews and appeals.
Congestion in the court system and the unreasonable delays in the disposal of court cases are an
unfortunate reality of the judicial process. In light of these challenges and given the critical
function the courts perform; it is important that the performance of the court is measured against
objective standards.3 The Zambian legal framework entrenches the right to the dispensation of
justice in a reasonable time. Article 118 of the Zambia Constitution stipulates that the judiciary
shall discharge their duties according to the guiding principle of justice without delay.4
Furthermore, the bill of rights in article 18 provides that cases shall be given a fair hearing within
a reasonable time.5
Subordinate Courts are the courts of first instance outside of the customary law system and the
detail of their jurisdiction are specified in the Subordinate Court Act of 1933.6As courts of first
instance, they decide all matters except for the offences of treason, murder, aggravated robbery.
The right to a speedy trial is an integral part of the principle of fair trial and is fundamental to the
international human rights discourse. Article 10 7 of the universal declaration of human rights has
recognized the right to free and fair trial as an integral part of human rights, and article 9(3) of the
2
Section 2 of the subordinate court Act, chapter 28 of the laws of Zambia
Tinenenji Banda, Access to Justice ‘Court Efficiency in Zambia, Institute for African Development, Southern
African Institute for Policy and Research, Project Report Spring’ (2020)/No.17
https://scholarship.law.cornell.edu/scr/ accessed 4th April, 2021.
4
Article 18 of the constitution of Zambia (Amendment) Act 2016.
5
Article 18 of the constitution of Zambia 1996.
6
Article 9 (3) of the universal Declaration of Human Rights
7
Ibid Article 10
3
2
international covenant on civil and political right has highlighted the importance of an individual
to be tried within reasonable period of time. 8
The Subordinate Court is notorious for delays in the disposing of cases. A violation of the speedy
trial rule means that any conviction and sentencing must be wiped out and the changes must be
dismissed if the case has not reached trial.9One of the main reasons for the right to a speedy trial
is to prevent a defendant from being held in custody for a long time, only to eventually be found
innocent. If no law sets a specific benchmark, a court must consider several factors in deciding
whether the defendant was denied a speedy trial.
However, it must be noted that the term speedy is relative in the legal context. What constitutes a
speedy trial in one instance might not in another.10 The Constitution recognizes the right to be tried
within a reasonable time. There is no prescribed timeline in the Subordinate laws within which
cases should be concluded. In practice many cases take several years to conclude, thus violating
the right of concerned people to speedy trial. In the case of Bernard Luboto v. Zambia, the facts of
the case were that the applicant had been sentenced to death pursuant to a law that made the death
sentence mandatory for the offence of aggravated robbery in which firearms were used. However,
the human right committee held that the period of eight years it took to conclude the applicant’s
case was incompatible with the right to fair and speedy trial. The victims’ right to speedy trial
should be held in high regard and great importance as well.11
8
Article 9(3) of the international covenant on civil and political rights .
Tinenenji Banda, Access to Justice ‘Court Efficiency in Zambia, Institute for African Development, Southern
African Institute for Policy and Research, Project Report Spring’ (2020)/No.17
https://scholarship.law.cornell.edu/scr/ accessed 4th April, 2021.
10
Government of India Ministry of Law, Law Commission of India Twenty-Seventh Report (the Code of Civil
Procedure, 1908) 7 (December, 1984) [hereinafter cited as Ministry of Law].
11
(communication No. 390/1990)
9
3
1.3 STATEMENT OF THE PROBLEM
The protection of the right to a speedy and fair trial is fundamental in the dispensation of justice.
In this regard any outright hindrance to the full enjoyment of this right is a clear violation of one’s
human rights. Research and study have shown that the right is not fully realized in Zambia. The
congestion in the Subordinate Courts and reasonable delays in the disposal of court cases are
unfortunate realities of the judicial process. It is therefore the intent of this research to determine,
whether the empowerment of Subordinate Courts to hold preliminary inquiries on cases beyond
their jurisdiction, with regard to sentencing could possibly be one of the contributing factors to the
delayed dispensation of justice.
1.4 RESEARCH OBJECTIVES
The objectives of this research are:
1. To understand the jurisdiction of Subordinate Courts in criminal matters.
2. To identify the importance of holding a speedy and fair trial by the Subordinate Courts.
3. To assess the challenges that hinder the realization of the right to a speedy and fair trial
caused by the imposition of Subordinate Courts on cases over which they have no sentencing
power.
1.5 RESEARCH QUESTIONS
1. What is the extent of Subordinate Courts jurisdiction in civil and criminal offences?
2. What is the importance of holding a speedy and fair trial in the Subordinate Courts?
3. What are the challenges that hinder the realization of the right to a speedy and fair trial in
Subordinate Courts?
4
1.6 SIGNIFICANCE OF THE STUDY
The right to a speedy and fair trial is considered as one of the most important rights in the
constitution, and without it, criminal defendants could be held unjustifiably under the notion of
unproven criminal accusations. The right to a speedy trial is also crucial in assuring that a criminal
defendant receives a fair trial. Therefore, this research is intended to aid Zambian citizens in their
realization of the right to a speedy and fair trial.
1.7 LITERATURE REVIEW
There is a significant reservoir of literature on the research topic. To begin with Banda 12 assesses
that, access to justice is not just a fundamental right in itself it is also an essential prerequisite for
the protection and promotion of all other rights. This clearly elucidates that access to courts
promotes stability and political liberalization allowing all segments of the population the
opportunity to seek redress under the law. It can also be noted that it is in the courts and not in the
legislature that the citizens primarily feel the keen cutting edge of the law.
Kaaba13 also provides some interesting insight which is useful to this discourse at hand, this is in
relation to the right of speedy and fair trial. He posits that, “the Constitution sets no specific length
of custody but that it simply requires an arrested or detained person, if not released on bail shall
be brought without undue delay before a court”. The above analysis clearly indicates that a person
charged with a criminal offence has to be afforded a fair hearing within a reasonable time.
Mutunya14, discusses important guidelines with regards to sentencing. He argues that sentencing
has been problematic area in the administration of justice and that it is one of those issues that has
12
Tinenenji Banda, Access to Justice: Court Efficiency in Zambia, Institute for African Development, Southern
African Institute for Policy and Research, Project Report Spring 2020/No.17 https://scholarship.law.cornell.edu/scr/
accessed 4th April, 2021.
13
O’Brien Kaaba, ‘constitutionality of criminal procedure and prison laws in Africa: Zambia’ (2016)
14
Willy Mutunya, ‘The Judiciary of Kenya: sentencing guidelines’, http://www.judiciary.go.ke
5
constantly given the court system a bad name.in relation to the research topic his literature will aid
in the showcasing that sentencing is one of the intricate aspects of the administration of trial justice.
The judiciary of Zambia15 discuses some invaluable insight through the first ever service charter
for the subordinate courts in Zambia. Which gives insight of what services the court offer.in
enhancing the discussion in this research topic the material in the service charter highlights the
jurisdiction of subordinate courts in criminal cases. Which in turn leads to the discussion of matters
which cannot be tried by subordinate courts, hence proving to be of value to this research topic.
Purdy16he provides a unique dimension on the jurisdiction of Subordinate Courts. Rules regarding
the transfer of cases between Subordinate Courts and enlargements of jurisdiction authorized by
the High Court also imply that these rules are more than mere venue preference and amount to
normal jurisdiction limits.
Sharma17discusses the fundamental right to speedy trial by highlighting the aspect that it is peculiar
in character and is generically different from other constitutional rights of the accused. The right
is in the interest of the accused if he is innocent. He further argues that under this right if a person
is innocent does not suffer unduly for a long period. However, the same right also works against
him if he is actually guilty of the offence. The right is also in the interest of the prosecution because
it does not face many problems such as non-availability of witness and disappearance of evidence.
The above is insight is very imperative to this research in that it that it provides a standpoint that
is very imperative in the administration of justice.
The Judiciary of Zambia, ‘subordinate courts: process and procedures’. Http://www.judiciary of zambia.com
Rodger Purdy, The Zambian judicial system: A Review of The Jurisdictional Law.CHP03.
17
Shailender Sharma, Fundamental Right to speedy trial: judicial examination Journal of the Indian law institute.
Http://www.jstor.org/stable/43987473
15
16
6
Shneider18posits that undue delay in the administration of criminal justice poses serious threats to
the freedom and well-being of the individual citizens. He Further argues that if criminal charges
are long pending against an accused, he may suffer extreme anxiety and harassment and may be
forced to undergo lengthy imprisonment prior to trial. He additionally postulates that delay can
also impair the ability of an accused to refute the charges brought against him. Furthermore,
potential witnesses may no longer be available, or the memories of available witnesses may be
blurred by the passage of time. Therefore, his standpoint is very much relevant to this research
topic in the sense it tackles on the theme of this research by highlighting the negative aspect of
infringing on the right to a speedy and fair trial.
Shaack19Argues that a common problem in the prosecution of crimes against victims is that the
trial is typically delayed through scheduling conflict, continuances and other unexpected delays
through the course of the trial. Victims are already heightened emotionally with anxiety and
anticipation of the impending trial, and these leads to further unnecessary trauma. This peace of
literature is important to the research in the sense that it outlines a different. Perspective in the
realization of the right to a speedy trial. As it suggests that states should include the Bill of rights
in their constitutions in order to acknowledge and protect a victim interest a speedy trial.
Mahadik20stipulates that the mounting pendency of cases in the Subordinate Courts is because the
subordinate judiciary works under a severe shortage of courtrooms. This is necessary to this
research in the sense that this report gives some of the reasons for the delay in the disposal of cases
which will be of great value to this research.
18
Alan Schneider right to a speedy trial.http//www.jstor.org/Stable/1227512
Beth V. Schaack, Trial Monitoring of People v. Miti et al, Zambia 2018.
20
Dushyant Mahandik, ‘Analysis of causes of pendency in High Courts and subordinate courts in Maharashtra’
(2018)
19
7
Ghosh21argues that in a democracy the administration of justice is for the benefit of the citizens,
lawyers and judges are the instrument in fulfillment of that objective. This is relevant to the study
because it evaluates courts as being the custodian and protectors of citizens’ rights. The true
conception of the administration of justice is the law concerned of the least person and this is the
highest consideration to the state and the court.
Neeraj22provides that the right to a fair trial is a norm of international human right law and also
adopted by many countries in their procedural law.it is designed to protect individuals from the
unlawful and arbitrary curtailment or deprivation of their basic right and freedom.
Nkonde and Ngwira23 argue that the Zambian criminal justice system in the subordinate court is
notorious for delays in the disposing of cases they give a different dimension of criticism on the
dispensation of justice in the subordinate court. They further stipulate that there is seldom
exhaustive argument and corresponding judicial examination of an accused’s protected rights in
the subordinate court. Reference is made to the Miyanda case, highlighting that the case was
decided on the premise that the appellant was wrongly questioning before the subordinate court.
21
Yashomati Ghosh, Indian Judiciary: An Analysis of the Cyclic Syndrome of Delay, Arrears and Pendency Asian
Journal of Legal Education5(1) 21–39© 2017 The West Bengal National University of Juridical Sciences SAGE
Publications sagepub.in/home.nav DOI: 10.1177/2322005817733566
http://ale.sagepub.com
Neeraj Tiwari, ‘Fair trial vis-à-vis criminal justice administration: A critical study of Indian criminal justice
system’(2010) Indian Law Institute, New Delhi, India
22
Sunday B. Nkonde SC and William Ngwira, ‘Accused’s Rights and Access to Prosecution Information in
Subordinate Courts in Zambia’(2007).
23
8
Ricke24argues the interests of the defendant and victim in having a speedy trial may sometime
overlap, thus suggesting that the victim’s right to a speedy trial should be held in high regard and
held with great importance as well.
Joseph25argues that extended pretrial in criminal litigation although frequently claimed by
defendants to be a deprivation of a fundamental right is seldom held to violate speedy trial
protection and even when so held rarely determines the outcome of the case. His insight will be of
great value to this research in that he tackles the matter on the right to a speedy trial from unique
perspective.
The United Nations26under the human rights reference guide provide for the assessment to the key
challenges to the enjoyment of the right to a fair trial and the guide is aimed at lawyers’ judges and
law enforcement officials. Therefore, the guide will add value to the research as it will narrow
down on the decision making of the courts with regard to the right of fair trial.
Kalembera27 argues that mistakes made by magistrates in the subordinate courts lead to delayed
justice and that it is contrary to the constitutional right to a fair and speedy trial. He further
stipulates that a court’s jurisdiction is defined via two parameters the power of a court to adjudicate
cases and issue orders, and the territory within which a court may properly exercise its power.
24
Mary B. Ricke, Victims' Right to a Speedy Trial: Shortcomings, Improvements, and Alternatives to Legislative
Protection. (Washington university school of law, 2013)
25
Gregory P. N Joseph,’ Speedy Trial Rights in application’,48 Fordham L.Rev.611 (1980). Available at:
http://ir.lawnet.foedham.edu/flr/vol48/iss5/1
26
The United Nations, ‘right to a fair and the due process in the context of countering terrorism’ (New York, 2015)
27
9
1.8 METHODOLOGY
The methodology in this research is qualitative. It will be conducted by an analysis and review of
primary data in the form of statutes and case law. It will additionally review secondary data such
as textbooks, journals, legal and non-legal articles, working papers, law reviews, published legal
and non-legal reports, conference papers, theses, dissertations and various electronic resources.
1.9 CONCLUSION
This chapter sought to provide an introduction into the research of the Constitutionality of
Subordinate Courts: Prosecution and transfer of cases to the High Court beyond their jurisdiction.
The chapter addressed the main aim of the research, its objectives, as well as a literature review
which has initiated this research.
10
CHAPTER TWO
UNDERSTANDING THE JURISDICTION OF SUBORDINATE COURTS BOTH IN
CIVIL AND CRIMINAL MATTERS
2.1. INTRODUCTION
This chapter seeks to present an understanding on the establishment and jurisdiction of Subordinate
Courts. With regards to the aspect of jurisdiction, it shall be discussed in relation to the Subordinate
Courts deliberation on both civil and criminal matters. The term jurisdiction was defined in the
case of Miyanda v. The High Court as, ‘the authority which a court has to decide matters that are
litigated before it; in another sense, it is the authority which a court has to take cognizance of
matters presented in a formal way for its decision. The limits of authority of each of the courts in
Zambia are stated in the appropriate legislation. Such limits may relate to the kind and nature of
the actions and matters of which the particular court has cognizance or to the area over which the
jurisdiction extends, or both.’1
Furthermore, a court’s jurisdiction can be defined via two strictures: the power of a court to
adjudicate cases and issue orders, and the territory within which a court may correctly exercise its
power. Any court possesses jurisdiction over matters granted to it by the Constitution, legislation
(an Act of Parliament) or any written law.2 Courts can only act within their legally defined
jurisdiction. The Magistrates’ Courts in Zambia, which are subordinate to the High Court,3 handle
both civil and criminal matters.
1
(1984) ZMSC 7
Sylvester A. Kalembera, Jurisdictional Limits for Magistrates Are Hindering Access to Justice in Malawi.
Http://www.southernafricanlitigationcentre.org
3
Article 120 of the Constitution of Zambia (Amendment) Act 2016
2
10
2.2. THE ESTABLISHMENT OF SUBORDINATE COURTS
The Subordinate Courts (also called Magistrates Courts) are created by the Constitution of Zambia
in article 1204 and established by the Subordinate Courts Act, Chapter28 of the Laws of Zambia.5
They are found in each District of the Republic of Zambia. The classification, powers and
procedures in the Subordinate Courts are derived from the Subordinate Courts Act, which largely
deals with civil jurisdiction. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia and
the Penal Code, Chapter 87 of the Laws of Zambia largely deal with criminal jurisdiction of the
Court.6
2.3. THE JURISDICTION OF SUBORDINATE COURTS
The Subordinate Courts ordinarily exercise civil and criminal jurisdiction (power) only within the
limits of the district. They also hear appeals from the Local Courts operating within their Districts.
Appeals from the Subordinate Courts go to the High Court.7
2.4. CIVIL JURISDICTION
With regards to the civil jurisdiction the Subordinate Court depends on its class rating, and the
type of magistrate sitting. For example, “a Subordinate Court designated class 1, with a resident
magistrate or class 1 magistrate sitting, may hear claims in personal suits arising from tort, contract,
or both, where the amount in controversy does not exceed four hundred kwacha. If, however a
senior resident magistrate sits, the limit rises to eight hundred Kwacha.”8 The jurisdiction varies
between classes, not only in amount, but as to types of actions triable as well. Furthermore, the
Subordinate Court handle Cases for the recovery of land. Where the dispute relates to title to/or
4
Ibid
Section 2 of the subordinate court Act, chapter 28 of the laws of Zambia
6
The Judiciary of Zambia, subordinate courts: process and procedures. Http://www.judiciary of zambia.com
7
Rodger Purdy, The Zambian judicial system: A Review of The Jurisdictional Law.CHP03.
8
Ibid
5
11
ownership of land, the parties must consent to the Magistrate hearing and determining the case.
Otherwise, the Magistrate must apply to the High Court to transfer the case to that Court. It also
tries Cases on affiliation and maintenance of children under The Affiliation and Maintenance of
Children Act, Chapter 64 of the Laws of Zambia Adoption; cases under The Adoption Act, Chapter
54 of the Laws of Zambia; Applications for money lending under the Money Lenders Act, Chapter
398 of the Laws of Zambia; Cases for recovery of rentals Cases for custody of children; and Cases
under any other Statute that may confer jurisdiction on the Subordinate Court.9
However, The Subordinate Court does not have jurisdiction in the following cases: Where title to
any right, duty or office is in question – e.g., the Subordinate Court cannot determine cases
involving succession to chieftainship or cases involving who should be legitimately in office.
Genuineness or validity of any will where the legitimacy of any person is in question; and the
determination of the validity or dissolution of any marriage unless the case has come from the
local court on appeal (for Subordinate Court of first class and second class only).10
2.5. CRIMINAL JURISDICTION
The Subordinate Courts derive power from the Penal Code, Chapter 87 of the Laws of Zambia;
the Criminal Procedure Code, Chapter 88 of the Laws of Zambia and any other written laws in
force in the Republic of Zambia. The Subordinate Court has power to try all sorts of criminal cases
except those specifically excluded by the written law, such as treason, bigamy, manslaughter,
infanticide, murder, attempted murder, aggravated robbery, causing death by dangerous driving,
etc., which are reserved for the High Court.11Criminal jurisdiction also varies according to the type
of magistrate and class of court. The primary restrictions are stated in terms of sentencing limits.
9
The Judiciary of Zambia, subordinate courts: process and procedures. Http://www.judiciary of zambia.com
Hon.Chief Justice Annel M. Silungwe, Administration of Justice in Zambia, (The university of Zambia 1979)
11
Section 222 of the civil and criminal procedure code chapter 160 of the laws of Zambia
10
12
For example, a class 1 magistrate may impose no more than three years imprisonment. These
sections not only limit the sentencing power of the court, they restrict as well the types of offence
which the court may try.12The case of Mapowa v. the people provided that where a minimum
sentence imposed by statute exceeds the minimum sentencing power of a court, it has been held
that the court lacks jurisdiction to try the offence.13 The criminal procedure code also prescribes
limits beyond which, even though the magistrate has power to sentence an offender, a sentence
given must be referred to the High Court for confirmation. Similar provisions appear regarding
imposition of fines. These provisions do not affect the jurisdictional power of the court to hear the
offence, they merely affect sentencing and execution of the sentence.14
Even where the law permits a Subordinate Court to exercise jurisdiction the court may decline to
do so and commit the accused for trial before the High Court, subject to the High Court approval.
A Subordinate Court may hold other criminal related proceedings and render appropriate decisions
as well.15
Furthermore, criminal jurisdiction varies according to the type of magistrate and class of court.
The primary restrictions are stated in terms of sentencing limits. For example, a class 1 magistrate
may impose sentences of imprisonment up to five years in length while lower ranking magistrate
may impose no more than three years imprisonment. The criminal procedure code also prescribes
limits beyond which, even though the magistrate has power to sentence an offender, a sentence
given must be referred to the High Court for confirmation.16
12
ibid
(1979) SCZ No.10
14
Ibid
15
Section 40-60 of the civil and criminal procedure code Cap.160 of the laws of Zambia.
16
ibid
13
13
The case of Mataa Mataa and another v. The people17 highlights the above position. In this case
the appellant had been charged with the offence of attempted rape in count one allegedly trying to
have carnal knowledge of the complainant without her consent. They had also been charged with
the offence of robbery contrary to section 292 of the penal code in count 2 for allegedly using
violence to steal a Samsung phone, K100 in cash, a purse, a chitenge material and a baby blanket
altogether valued at K2000.They were tried for the two offences in the subordinate court presided
over by magistrate of the second class at sesheke.
In the judgement, the trial magistrate convicted the appellant for the offence of attempted rape and
imposed the sentence of 36 months imprisonment with hard labor on each appellant. Regarding
the robbery, the magistrate found that the appellant violently stole from the complainant, the
offence that was committed was aggravated robbery, which the court had no jurisdiction to deal
with. The magistrate then purported to commit the two appellants to the High Court for trial for
that offence. At the High Court the learned judge who dealt with the matter was of the view that
the trial magistrate decision to commit the two appellants to the High Court to be tried for
aggravated robbery was not supported by law. She noted that section 220 of the criminal procedure
code takes care of instances where it is not apparent in the initial stages, that a case is one which
should be tried by the High Court by converting the proceedings into a preliminary inquiry. Based
on this consideration the learned judge took the position that the decision by the trial magistrate to
commit the appellant for trial at judgement was wrong. The learned judge in exercise of her
revisory powers under section 338 (1) (a) of the criminal procedure code, decided to vary the
17
(2018) Appeal No.192/193
14
sentence. She quashed the sentences
and substituted them with sentences of 15 years
imprisonment with hard labor with effect from the date arrest.
In relation to the decision by the High Court to vary the sentences imposed by the trial magistrate,
it is settled law that just as an appellant court will not interfere with a sentence as being too high
unless the sentence comes to the appellant court with a sense of shock, it will equally not interfere
with a sentence as being too low unless it is of the opinion that it is totally inadequate to meet the
circumstances of the particular offence. However, the ability to increase the sentence is tempered
by the restriction that the appellant court cannot vary the sentence by imposing a sentence higher
than the trial court had jurisdiction to impose unless the matter under section 217 of the criminal
procedure code. Two cases among several others which speak to these principles are Simon
Munsaka v. The people and Kenneth Chisanga v. The people. In the latter the appellant pleaded
guilt before the Subordinate Court of the first class, Holden at Ndola, to the offence of rape
contrary to section 133 of the penal code, cap 87 of the laws of Zambia. The particulars of the
offence were that, on 21st March,2003 at Ndola, in the Ndola district of the Copperbelt province
of the Republic of Zambia, unlawfully had carnal knowledge of a woman namely, Annastazia
Mbati Chipeta without her consent. The Trial magistrate sentenced the appellant to 60 months
imprisonment with Hard labor.
The case record came up before the Ndola High Court for review. How and why the record was
called for review was not clear on the record. What was clear however, was that the trial magistrate
never committed the case to the High Court for sentencing. On review, the High Court sentenced
the Appellant to 15 years imprisonment with hard labor. The reasons given by the High Court for
enhancing the sentence were that the offence was very serious; that as of late the offence of rape
15
had become prevalent, and that, women needed protection from such people as the appellant. The
court felt that it had a duty to impose deterrent sentence.
However, the trial court in its ruling stipulated that the appellant was tried before a magistrate of
the first class whose sentencing power according to the provisions of section 7 of the criminal
procedure code is limited to 5 years. Where a court has imposed a sentence within its power, it
cannot be said to be wrong in principle. In other words, it is not proper to enhance a sentence
simply because the appellant court had it tried the case would have imposed a somewhat greater
sentence.
In the instant case it was argued that it was the Judge, on review, who was wrong in principle by
imposing a sentence which was above the jurisdiction of the trial court. The scenario could have
been different if the trial court had committed the case for sentencing, then the High Court could
have been at large liberty to impose any sentence. To that effect that court held that the sentence
of 15 years imprisonment imposed by the judge was not only wrong in principle but was also too
high and consequently the sentence was set aside.in its place the original sentence of 60 months
imprisonment with hard labor was imposed by the trial magistrate.18
Additionally, Section 220 (1) of the criminal procedure code stipulates that “if before or during
the course of a trial before a subordinate court, it appears to the magistrate that the case is one
which ought to be tried by the High Court. The magistrate shall not proceed with the trial but in
lieu thereof shall hold a preliminary inquiry in accordance with the provision hereinafter
contained”19
18
19
(2004) SCZ Appeal 20
Section 220 (1) of the civil and criminal code Cap 160 of the laws of Zambia
16
The procedure that the Subordinate Court adopted in this case was not in line with section 220 (1)
of the criminal procedure code. Having decided that the evidence supported the more serious
offence of aggravated robbery the trial magistrate should have converted the proceedings in the
manner provided in section 220 of the criminal procedure code. 20This having not been done and
the proceeding relating to the aggravated robbery having been left hanging, the only option for the
learned judge was to send the matter back to the Subordinate Court to comply with section 220.
Having discussed the two jurisdictions that the Subordinate Courts wield, much emphasis will be
placed on the criminal jurisdiction of the Subordinate Courts for the purposes of this research. One
of the key areas that will be tackled is the issue of Subordinate Courts holding preliminary inquiries
on certain offences. This is due to the fact that a Subordinate Court is empowered to hold a
preliminary inquiry, whether it could ultimately have tried the case or not, before committing the
accused to trial before the High Court. These preliminary inquiries normally obtain evidence for
review and determine if the accused should, in fact, be committed to the High Court for trial, in
light of the evidence adduced.21
The problem that is faced in respect to the preliminary inquiry is the delay it takes to first schedule
the hearing and the impact that the delay has in the eventual trial. In instances where some
irregularities are noted in the findings from the preliminary inquiries during the actual trial, the
proceedings maybe declared a nullity. The above point was highlighted in the case of R v.
Changala and others,22 where it was discovered that in the course of the court examination of the
preliminary inquiry, there appeared certain omissions and irregularities which indicated persistent
20
(2018) Appeal No.192/193
Sunday B. Nkonde SC and William Ngwira, ‘Accused’s Rights and Access to Prosecution Information in
Subordinate Courts in Zambia’(2007) .
22
(1938) ZMHCNR 10
21
17
disregard of the law. Due to this fact proceedings were declared a nullity and a new trial was
ordered. The above instance clearly indicates how the accused’s right to having a speedy trial is
infringed on by such irregularities.
Further arguments that can be made against Subordinate Courts holding a preliminary inquiry are
that; it makes the state aware of the weaknesses in their case and gives them opportunity to fix the
mistakes before the actual hearing. Another argument is that in some instances an ordinary litigant
cannot afford to hire a lawyer for both a preliminary inquiry and trial, in this regard it would delay
the progression of the trial and consequently infringe on the constitutional right of the right to a
speedy trial.
Another area worth examining is the treatment of evidence (its standards and assessment), this is
due to the fact that preliminary evaluation of more serious cases by Magistrates requires virtually
a full trial in itself and this is an additional concern, and one which is related both to the legal
design and logic of the system, which basically leads to issues of delay.23
Overlapping of hearings by prosecutors and defense attorneys is another argument against
preliminary inquiries. Such overlapping is clearly caused by the way hearings are scheduled,
including the lack of a computerized scheduling system and the imposition of hearing dates on the
parties, without consultation. In addition, forensic activities for High Court hearings are given
preference over those of the Magistrates Court, which actually have a much greater caseload, with
the result that the latter is relegated to last place.24 There also appears to be a strongly held belief
23
Cooper C Solomon, Differentiated Case Flow Management (US Department of Justice, Washington DC)
Lisa Bridges and Daniel Jacobs, ‘Reducing Delays in the Criminal Justice system’: the views of defensive lawyers
(Lord Chancellors Dept. Research Secretariat,1999)
24
18
that attorneys “should take on many cases so as to survive in the market.” Except for the initial
one, the court itself schedules all hearings on an individual basis.
Furthermore, overbooking of hearing given the high percentage of hearing failure from one cause
or another, Magistrates Courts have gotten into the habit of overloading their schedules. Thus, in
order to process five or six hearings per day, approximately thirty are scheduled, with the
corresponding result that many do not take place in the end, though all relevant parties have been
summoned to the court.25
Non-appearance of witnesses or defendants is another argument that can be made. It is important
to point out that court summonses are organized by the courts themselves and carried out by the
police, a practice that creates problems related to workload. Lack of preparation of some parties.
Unavailability of evidence due to its misplacement by the prosecution or the non-appearance of
the investigator is a frequent occurrence. On the defense side, delays are frequently caused by
problems associated with discovery (disclosure) of evidence by the prosecution.26
2.6. CONCLUSION
This chapter has discussed both the civil and criminal jurisdiction of the subordinate courts and it
has highlighted the limit and extent of the application of the jurisdiction that the subordinate courts
wield in criminal offences. Furthermore, it has posited that acting within jurisdiction is paramount.
It is paramount that magistrates and all judicial officers must act within the powers conferred upon
them by law. This will bring order in the delivery of justice and public confidence in the Judiciary.
25
26
American Bar Association, ‘The Improvement of the Administration of Justice’ (Chicago, IL, ABA)
Ibid
19
However, where jurisdictional limits bring hardship to societies, the same must be dealt with,
among other interventions, through amendments of the law. 27
Sylvester A. Kalembera, ‘Jurisdictional Limits for Magistrates Are Hindering Access to Justice in Malawi’.
Http://www.southernafricanlitigationcentre.org
27
20
CHAPTER THREE
IDENTIFYING THE IMPORTANCE OF HOLDING A SPEEDY AND FAIR
TRIAL IN SURBORDINATE COURTS
3.1. INTRODUCTION
While access to justice has many components, the speed with which litigants can have their case
disposed of is an important justice indicator. This is due to the fact that undue delay in the
administration of justice poses serious threats to freedom of well-being of the individual citizen.1If
criminal charges are long pending against the accused, he or she may suffer extreme anxiety and
harassment and may be forced to undergo lengthy imprisonment prior to trial. To that effect the
constitution of Zambia clearly stipulates under clause 118 that the courts shall be guided by a
number of principles, including the principle that justice shall not be delayed.2 Furthermore, the
Bill of Rights in Article 18 provides that cases ‘shall be given a fair hearing within a reasonable
time’.3
Additionally, in a democracy, the administration of justice is for the benefit of the citizens, and the
lawyers and judges are important instruments in the fulfilment of that objective. Courts are deemed
to be custodians and protectors of citizen rights. In the words of Justice V. R. Krishna Iyer, ‘The
true conception of the administration of justice is that the lowly concerns of the least person are
the highest consideration to the state and the court.’4 Thus, the judiciary being an integral part of
1
David Harris, The Right to a Fair Trial in Criminal Proceedings a Human (Cambridge University Press 1967)
Tinenenji Banda, ‘Access to Justice: Court Efficiency in Zambia, Institute for African Development, Southern
African Institute for Policy and Research, Project Report Spring’ (2020)/No.17
https://scholarship.law.cornell.edu/scr/ accessed 22nd September 2021
3
Ibid
4
V. R. Krishna Iyer, Democracy of Judicial Remedies, The Hindu, 7 Jan. 2003,
http://www.thehindu.com/thehindu/2003/01/07/stories/2003010700561000.htm
2
19
our democratic system, all the constitutional values and implications must be imported into the
judicial process. In a democratic society, the courts play a crucial role in seeing that neither license
nor absolutism becomes dominant; hence, the various challenges faced by the judiciary need to be
effectively met at the earliest.5 Therefore, it goes without saying that in order to have an effective
judicially there is need for predictability in resolving cases which should be done within a
reasonable time frame.6
3.2. UNDERSTANDING THE CONCEPT OF A SPEEDY AND FAIR TRIAL IN THE
DISPENSATION OF JUSTICE
A speedy and fair trial is a basic notion of the rule of law and the principles of due process. These
are fundamental to the protection of human rights.7It can be categorically be stated that the center
of each legal system therefore, must be a means by which legal rights are asserted and breaches
remedied through the process of a speedy and fair trial in court, as the law would be rendered
useless without effective remedies.8
3.2.1. SPEEDY TRIAL
The speedy trial of offences is a desirable goal because long delay can defeat justice. There is a
common proverb ‘delay defeats justice’ hence it is said that speedy justice is of the essence of
organized society and the cases should be decided as early as possible. However, the basic norms
which ensure justice cannot be over looked in achieving the goal of speedy justice because there
5
Yashomati Ghosh, Indian Judiciary: An Analysis of the Cyclic Syndrome of Delay, Arrears and Pendency Asian
Journal of Legal Education5(1) 21–39© 2017 The West Bengal National University of Juridical Sciences SAGE
Publications sagepub.in/home. Av DOI: 10.1177/2322005817733566
http://ale.sagepub.com.
6
Michel, J., O’Donnell, M. & Munalula M. ‘Zambia Rule of Law Assessment’ (2009) SAID. Available from:
http://pdf.usaid.gov/pdf_docs/Pnadt562.pdf [Accessed October 2021].
7
The Right to a Fair Trial, https://www.fairtrial.org/right-fair-trial
8
Alan Schneider, The Right to a Speedy Trial(Stanford Law Review 1968).http//www.jstor.org/stable/1227512
20
is a common proverb that justice hurried, is justice buried. In other words, one has to balance the
consideration of speed and justice.9
Furthermore, the right to speedy trial is triggered as soon as an individual has been formally
charged with a crime either by indictment or information.10 Once the right has attached, the
protection it affords will generally continue uninterrupted until entry of a final conviction of the
crime alleged in the indictment or information. Thus, in many jurisdictions the effect of a delay
cannot be avoided by dismissing an indictment and filling a new one; the relevant time period for
finding a violation of the right will relate back to the first indictment.11 But not all delays within
the protected periods violate the right to speedy trial. The essential ingredient is orderly expedition
and not mere speed. Consequently, the right to a speedy trail prohibits only those delays that are
unreasonable.12
Furthermore, the legal basis of the right is justified on the strength of the Magna carta (1215) which
provided that justice or right will neither be sold nor denied or differed to any man. It is also a
notorious fact that prolonged detention without trial will be contrary to law and delay in trial by
itself would be an improper denial of justice. In countries like the USA, the right to speedy trial
has been guaranteed by the sixth Amendment of the US Constitution. The VI Amendment of the
US Constitution says that ‘in all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial’. It might also be noted that states are also bound by it.13
9
Davies H, Human Rights and Civil Liberties (Willian publishing Devon 2003)
Ibid
11
The Annenberg Guide to The United States Constitution, http://www.annenberg Classroom.org/sixth Amendment
12
Ibid
13
Ibid
10
21
Additionally, the fundamental right to speedy trial is peculiar in character and is generically
different from other constitutional rights of the accused. This basically entails that if the accused
is innocent, he does not suffer unduly for a long period. However, it also works against the accused
in instances where he is actually guilty of the offence. Consequently, the right is also in the interest
of prosecution because it does not face many problems such as non-availability of witness and
disappearance of evidence.14Sometime it also goes against the prosecution especially when the
prosecution does not have hundred per cent foolproof case against known or hardened criminals.
But it must be noted that the right strengthens the administration of justice because of the certainty
of application of penal sanctions. It is this amorphous quality of right which makes the effects of
its denial unpredictable.it is in this context, constitutional configuration of the right to speedy trial
and effects of its denial has to be found out or determined. In the subordinate courts.15
The case of Mainza, George Mudenda and Lameck Kamanga v. The people; provides a very
feasible bearing on the right to a speedy trial. This was a joint application for the issue of a writ of
habeas corpus ad subjiciendum by the three applicants. The circumstances leading to this
application were that the first and second applicants were arrested on 16th July, 1977, while the
third applicant was arrested on the 14th July, 1977.They were charged with aggravated robbery.
The three applicants were committed to the High Court for trial.
It was the applicant’s contention that since their committal to the High Court nothing had been
done in connection with their trial. They thus contended that they were unlawfully detained and
14
Sharma S.N, Fundamental Rights to Speedy Trial; Judicial Experimentation (Indian Law Institute,1996)
.http/www.Jstor/stable/43927473
15
Ibid
22
that their continued detention was punitive, illegal and a violation of their right of freedom of
movement.
The issue before the court was whether a person in custody by a lawful order of a competent court
on committal to the High Court for trial of a criminal charge could seek his release from custody
by way of a writ of habeas corpus on account of unreasonable of delay in bringing him to trial.
The court held that it an acceptable practice in most legal systems that in certain circumstances,
detention pending trial is justified but that the justification conditional upon having the prisoner
brought to trial as quickly as possible. It further guided that the principle envisages that an accused
person will not be held in detention for an unlimited period of time without trial and without
remedy.16
Similarly in the case of Hussainara Khatoon v. Home Secretary,17 a habeas corpus petition was
filed on the ground that several undertrial prisoners were awaiting their trial for long.in some cases
the pretrial detention had exceeded the maximum term of the sentence imposable for the offences
charged. In view of the peculiar facts and circumstances of the case, the court ordered their release
forthwith their personal bonds. The importance of the case lies in the fact that instead of defining
the effects of fundamental right to speedy trial, the court asserted its judicial power to secure the
release of such accused but it did not mean acquittal.
16
(1981) Z.R. 146 (H.C)
17
(1979) AIR 1819, 1979 SCR (3)1276
23
3.2.2. FAIR TRIAL
The right to a fair trial is one of the fundamental guarantees of human rights and the rule of law,
aimed at ensuring the proper administration of justice.18 It comprises various interrelated attributes
and is often linked to the enjoyment of other rights, such as the right to life and the prohibition
against torture and other forms of cruel, inhuman or degrading treatment or punishment. All
persons must have equal rights of access to the courts and tribunals, including access to remedies
and reparations, which is relevant not only to persons subject to criminal and non-criminal
proceedings but also to the victims of terrorism.19
The right to a fair trial has figured prominently in the efforts made in recent years to guarantee
human rights at an international level. In 1948 it was affirmed as a basic human right by the
Universal Declaration of Human Rights and by the American Declaration of the rights and duties
of man.20Additionally this right is a fundamental right, non-observance of which undermines all
other human right. Therefore, the right to a fair trial is non-derogable right, especially as the
African charter does not expressly allow for any derogations from the rights it enshrines. 21 The
realization of this right is dependent on the existence of certain conditions and impeded by certain
practices, such as;
Rule of law, democracy and fair trial, this is due to the fact the right to fair trial can only be fully
respected if the rule of law is upheld in a particular environment as well as other fundamental
rights and freedoms. The rule of law basically entails the existence of fully accountable political
institutions.22
18
Lilian Chenwi, Fair Trial Rights and their Relation to Death penalty in Africa (Cambridge University Press 2006)
Ibid
20
Sharma S.N, Personal Liberty Under Indian Constitution (1991)
21
Journal of African Law, The right to a Fair Trial: The Dakar Declaration (2001 vol 45, No.2001)
22
Ibid
19
24
Another contributing factor is the independence and impartiality of the judiciary, this aspect
boarders on the constitutional and legal provisions which provide for the independence of the
judiciary in most African countries. However, it must be noted that the existence of these
provisions alone does not ensure the independence and impartiality of the judiciary. Issues and
practices which undermine the independence and impartiality of the judiciary include the lack of
transparent and impartial procedures for the appointment of judges, interference and control of the
judiciary by the executive, lack of security of tenure and remuneration and inadequate resources
for the judicial system.23
The independence of lawyers and Bar Associations also play a pivotal role in the realization of the
right to fair trial. This is due to the fact that an independent Bar Association is essential to the
production of fair trial guarantees. Bar Association should be able to protect and uphold the
independence of their members.24 The ability of lawyers to represent their clients without any
intimidation or harassment is an essential tenet of the right to a fair trial. “In many African
countries lawyers who represent unpopular causes or persons who are perceived as opponents of
the government themselves become targets for harassment or persecution. An important safeguard
for lawyers is that they should not be identified with their clients or their clients’ causes as a result
of discharging their functions.”25
Legal aid also plays a vital role in the realization of the right to a free trial, as it provides access to
justice which in turn is a paramount element of the right to a fair trial. Most accused and aggrieved
persons are unable to afford legal services due to high cost of court and professional fees.26
23
ibid
ibid
25
Ibid p.142
26
Journal To the African Law,1997, vol 41, No.2
24
25
Furthermore, traditional courts also referred to as chief’s courts are also an important part in the
realization of the right to fair trial. In that they play a vital role in the administration of justice in
much of the country, especially in rural areas. In addition, it can be argued that the fundamental
component of the right to a fair trial is the right to have access to the courts of law as guaranteed
by article 14 (1) of the ICCPR and African Charter, article 7 (1) (a) among other human rights
instruments. 27
3.3. MERITS OF HAVING A SPEEDY AND FAIR TRIAL
The right to a speedy and fair trial is considered as one of the most important rights in the
constitution. Without it, criminal defendants could be held indefinitely under a cloud of unproven
criminal accusations. The right to a speedy and fair trial is also crucial in assuring that a criminal
defendant receives a fair trial. If too much time elapses between the alleged crime and trial,
witnesses may die or leave the area, their memories may fade and physical evidence may be lost.28
Speedy and fair trial also guarantees public trial. The right to public trial serves the interest of both
criminal defendants and the public. Defendants are protected from secret proceedings that might
encourage abuse of the justice system, and the public is kept informed about how the criminal
system works. Like most constitutional protections, however the right to public trial is not absolute.
A Criminal defendant may voluntarily give up his or her right to public proceedings or the judge
may limit public access in certain circumstances ‘for example, a judge might order a closed hearing
to prevent intimidation of a witness or to keep order in courtroom.29
27
Richard Moules, The Right to Trial Within a Reasonable Time (Cambridge University press 2004)
ibid
29
Derek Obadina, ‘The Right to Speedy Trial in Namibia and South Africa’ (School of oriental and African
Studies). https://www.jstor.org/stable/745430
28
26
Furthermore, it ensures that the criminal defendant is informed of criminal charges. This basically
entails that an accused person is to be informed of the nature and cause of accusation, this is for
the purposes of ensuring that an accused receives a fair trial. A speedy, public trial that is heard by
an impartial judge is meaningless if a defendant is left in the dark about what crime is charged
with. 30
With regards the right to fair trial, it is an essential safeguard of a just s society and its importance
cannot be overstated .it is an essential guarantee of the rule of law. Its importance is also
highlighted in the aspect of it deeming an accused innocent until proven guilty and this is
highlighted in article 18(2) of the Zambian Constitution.31 Furthermore, the right to fair trial
entitles one to be heard in public by an unbiased, independent and impartial judge in reasonable
amount of time. This means that an accused should not wait years for a fair trial.32
3.4 CONCLUSION
This chapter has endeavored to discuss the importance of the notion of speedy and fair trial in the
dispensation of justice. It has further highlighted that speedy and fair trial are one of the ways to
prevent the miscarriages of justice. This is due to the strong principles of justice embedded in this
aspect which contend that, every person accused of a crime should have their guilt or innocence
determined by a fair and effective legal process. However, it goes further than protecting suspects
and defendants, without fair trials, victims can have no confidence that justice will be done.
Without speedy and fair trial trust in government and the rule of law collapses.33
30
Gregory Joseph, Speedy Trial Rights in Application,48 Fordham L. Rev.611 (1980) Available at
http://ir.lawnet.fordham.edu/f/r/vol 48/iss 5/1
31
Lewis F. Powell, The Right to a Fair Trial (American Bar Association 1965). http://www.jstor.org/stable/25723242
32
Ibid
33
Celia Brown-Blake,’ Fair Trial Language and the Right to interpretation’ ( 2005).
27
CHAPTER FOUR
THE CHALLENGES THAT HINDER THE REALISATION OF THE RIGHT TO A
SPEEDY AND FAIR TRIAL IN SUBORDINATE COURTS
4.1. INTRODUCTION
Access to the courts inevitably promotes stability and political liberalization, it allows all sectors
of the population the opportunity to seek redress under the law. This is categorically vital for the
vulnerable groups that rely on the justice system to protect and enforce their right. Furthermore
This is validated by the fact that access to justice challenges, disproportionally impacts the poor
and vulnerable populations of society including women, children, juveniles and persons living with
disabilities.1 However, it must be noted that facilitating the access to justice for all requires that
national courts perform in an efficient and effective manner.2To that effect this chapter will
endeavor to discuss some the challenges that hinder the realization of the fundamental right of
speedy and fair trial in the Subordinate Courts.
4.2. FACTORS HINDERING THE RIGHT TO A SPEEDY AND FAIR TRIAL IN
SUBORDINATE COURTS
The Zambian criminal justice system in the Subordinate Court is notorious for delays in the
disposing of cases. The rate at which adjournments occur is alarming, and this is usually blamed
on defence lawyers. However, the main causes for the frequent adjournment of cases in the
subordinate courts inter alia include the following.3
1
department of Justice, Justice for all—Three year’s achievements, Government of India,
http://doj.gov.in/sites/default/files/Justice%20for%20All_High.pdf
2
ibid
3
Sunday B. Nkonde SC and William Ngwira, ‘Accused’s Rights and Access to Prosecution Information in
Subordinate Courts in Zambia’(2007) www.southernafricalitigationcentre.org
28
4.2.1. TRIAL BY AMBUSH
This occurs where one side does not learn of the other sides’ evidence or witnesses until trial, when
there is little or no time to obtain evidence.4 under such a quagmire predicament, a defence lawyer
who is ambushed during trial with intricate documented evidence. Has an option to either seek an
adjournment to study the evidence, sometimes disguised as ‘seeking further instructions from the
client’, or to proceed and suffer the possible embarrassment of appearing unprepared for crossexamination of a prosecution witness.5
Consequently, in as much as trial by ambush is detested it has continued to survive in the
subordinate courts together with its embedded injustices and unfairness. Therefore, in an attempt
to put the injustices and unfairness of trial by ambush in the Zambian Subordinate Court into
perspective, the justification for pre-trial non-disclosure of evidence is reviewed, and a criticism
of the Zambian approach is made by reference to procedures in other African jurisdictions.
However, the case of The People v. Kasonkomona provides some justification for the pre-trial nondisclosure of evidence, in this case the prosecution stated that; while we note that under the
constitution, in article 18(1) of chapter one of the laws of Zambia, a person arrested and charged
for a criminal offence is entitled to a fair hearing, there is no corresponding provision either in the
constitution itself or the criminal procedure code, Which obligates the prosecution in the
subordinate court to extend, provide or exchange the witness statements or exhibits which the
prosecution is likely to avail before the court.6
4
The America bar association,’ how court works’ htp//www.americanbar.org
Sunday B. Nkonde SC and William Ngwira, ‘Accused’s Rights and Access to Prosecution Information in
Subordinate Courts in Zambia’(2007) www.southernafricalitigationcentre.org
6
People v Kasonkomona CR No. 9/04/13 (SubCt). All pertinent case documents are available at http://www.
southernafricalitigationcentre.org/cases/ongoing-cases/zambia-activist-defends-right-to-freedom-of-expression/.
This case is discussed in full in SB Nkonde “Judicial Decision-Making and Freedom of Expression in Zambia: The
Case of People v Paul Kasonkomona” in this publication.
5
29
In addition to that, it is trite law that the burden of proof in criminal cases rest on the prosecution
and the accused has no burden to prove his innocence.
Furthermore Muwowo v. The people is one of the many cases in which the above well principle
has been repeated. In the same vein the constitution nor the criminal procedure code has provisions
where the prosecution is obligated to give witness statements or exhibits to the defence before trial
commences. Article 18 (1) of the constitution of Zambia referred to above and also article 18(2)
and (e) are important to this research.7
Article 18(1) provides that if a person is charged with a criminal offence, then, unless the charge
is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent
and impartial court established by law. Article 18 (2) stipulates that every person who is charged
with a criminal offence, shall be given adequate time and facilities for the preparation of his or her
defence. However, this is a seldom exhaustive argument and corresponding judicial examination
of an accused’s protected rights in the subordinate court.8 Therefore, the Miyanda case to this
regard can be rendered not helpful in the sense that it was decided on the premise that the appellant
was wrongly questioned before the High Court, when the offence he was facing unknown to him
was reserved by statute to be tried by the High Court. The case is therefore is not settled authority
to the preposition that denial of access to evidence prior to trial is constitutional.9Therefore in
relation with the above legal findings it can be argued that the Zambian laws in that respect are
not dense enough in facilitating the adherence to the right of speedy and fair trial in Subordinate
Courts.
7
Muwowo v The People (1965) ZR 91 (CA)
ibid
9
(1986) ZR 58 (SC).
8
30
4.2.3. LIMITED JURISDICTION OF SUBORDINATE COURTS
This is another aspect that contributes to the hindrance of the realization of the fundamental right
to a speedy and fair trial in the sense that, the jurisdictional limits of the magistrate courts go to
the core of access to justice. In light of this, the highest grade of magistrate cannot impose a
sentence exceeding 20 years. Furthermore, no magistrate can preside over serious offences such
as murder and this basically entails that all those that are charged with homicide offences can only
be tried before the High Court. The Constitution requires that every person arrested for, or accused
of the alleged commission of an offence shall, in addition to the right which he or she has as a
detained person, have a right to a fair trial which shall include the right to public trial before an
impartial court of law within a reasonable time after having been charged. 10However it be noted
that no conception of reasonable time, comports with someone being kept on remand for thirteen
years, ten years or nine years. In addition, the right to access to justice is being hampered for both
the accused and the victim as they wait unreasonable amount of time for trial before the High
Court.11
Furthermore, there also instances where a particular Grade of the magistrates recuses themselves
from handling a case due to lack of jurisdiction. A magistrate with the required jurisdiction would
then be required to take over the matter. This as well further delays the dispensation of justice in
that in most instances the magistrate taking over will have to travel from a distance to come and
take over the case, and this has cost consequences which often delays the matter further. In such
cases, the accused cannot speedily access justice and the victims too are kept abeyance.
10
Sylvester A. Kalembera, ‘Jurisdictional Limits for Magistrates Are Hindering Access to Justice in Malawi’.
Http://www.southernafricanlitigationcentre.org
11
ibid
31
The above position is highlighted in the case of the people v. Basil Masauso and Patson Musenge,
this case determined whether a senior Resident magistrate exceeded his jurisdiction in delegating
a magistrate class one from Kitwe to try a case at kalulushi and whether a formal order of transfer
was necessary. The facts of the case were that the two persons appeared before a magistrate of the
first class at kalulushi, charged with illegal possession of emeralds, contrary section 321(1) of the
penal code and mining minerals without a license contrary section 44 and 125 of the mines and
minerals Act of 1980.The senior Resident magistrate at Kitwe who had supervisory jurisdiction
over the subordinate court at kalulushi directed a magistrate class one from Kitwe to go and try
the case. The magistrate at kalulushi disputed the jurisdiction of the senior Resident Magistrate to
make such an order, discharged the accused persons and forwarded the case to the High Court for
review. The court applied the decision in the people v. Chaponda and held that no formal order of
transfer was required from one magistrate of the first class to another, provided that the case to be
determined was not part-heard one. The court also noted that the magistrate at kalulushi discharged
the accused persons without going through the merits of the case. The discharge was thus declared
to be a nullity. The court ordered the case to be transferred to the subordinate court of the first
class at Kitwe to be tried by the senior resident magistrate.12
From the above legal decision, it can clearly be noted that the aspect of shifting sittings for the
subordinate courts due to jurisdictional deficiencies, by and large contribute to the infringement of
the fundamental right to speedy and fair trial which in turn undermines the spirit of the dispensation
of justice within reasonable time.
12
(1980) Z.R 243(H.C)
32
4.2.4. INAPROPRIATE ORDERS
Magistrates in subordinate courts more often than not make inappropriate orders. This can partly
be attributed to the fact that magistrate lack sufficient training to handle matters that come before
them and that the clerks do not give adequate guidance to the litigants in a more specific manner.
It certain instances clerks make little effort to establish sufficient background to the case in order
to establish the correct cause of action.13
Additionally, it is also argued that magistrate lack basic fact finding, analytical and judgment skills.
In most cases it is feasibly a common practice that magistrate deliver one sentence or one paragraph
judgment which hardly analyze the issues in contention. Sometimes judgments are passed on the
basis of insufficient information. This in turn clearly highlights the fact that magistrates do not
seem to appreciate the fact that they have a duty to establish the truth of the matter, hence they do
not fully inquire into the facts of the case. In support of the above assertion the court in the case of
the people v. musauso, stated that the magistrate at kalulushi discharged the accused persons
without going through the merits of the case. The discharge was thus declared to be a nullity.14
4.2.2. INEFFICIENCY OF THE COURT
Furthermore, among the numerous challenges facing the Zambian courts one of the most perennial
is that of inefficiency. It is a notorious fact that in Zambia, the congestion, backlog and the
unreasonable delays in the disposal of cases are an unfortunate reality of the judicial process. The
inefficiency can also be attributed to insufficient number of judges, inadequate support staff, lack
of adequate renumeration for judges and unnecessary adjournments during trial. To that effect
chief justice Ireen Mambilima acknowledged that ‘the biggest challenge facing the judiciary
13
Pillai, K. N. Chandrasekhara, R. V. Kelkar's Criminal Procedure (Eastern Book Company.
Lucknow, 2008).
14
(1980) Z.R 243(H.C)
33
currently is the backlog of cases and delays in the disposal of cases and the delivery of
judgments.’15Additionally, unlike many African countries such as Malawi, Uganda, South Africa
and Ghana, the Constitution of Zambia does not provide for the limit amount of time that a suspect
can be remanded in custody before being brought before a court of law.16
Furthermore, another aspect is that Subordinate Courts are courts of record. However, while the
courts registrar has been computerized, judges recurrently take notes by hand and few staff have
the required computer literacy to maintain and update the records resulting in delay. Additionally,
issues with administrative infrastructure are conspicuous together with issues of lost files and
problems with case management compound delays. This is particularly challenging due to the
divided responsibility of sentencing between the subordinate court and the High Court, which has
been subjected to criticism. The aspect of transferring cases for sentencing between the two is
alleged to be outdated and unnecessary drain on the resource of the judiciary. 17
(a) BACKLOG OF CASES
Under the inefficiency of the courts falls the problem of backlog of cases. A court backlog is a
pending case which is pendent before the court for a longer period of time than the one prescribed.
The backlog of cases in Zambia can be ascribed to the limited number of High Court buildings.
The fact that High Couts of Zambia only has permanent seats in Livingstone, Lusaka, Kitwe, Ndola
and Kabwe, it basically entails that the High Court will only sit as a circuit court in places where
it has no permanent seats which is often once each month for criminal matters. This circuiting of
Tinenenji Banda, ‘Access to Justice: Court Efficiency in Zambia, Institute for African Development, Southern
African Institute for Policy and Research, Project Report Spring’ (2020)/No.17
https://scholarship.law.cornell.edu/scr/
16
ibid
17
ibid
15
34
the court has negative implications for cases in which convictions by the Subordinate Court have
to be confirmed by the High Court. This confirmation at certain times takes six months or longer,
thereby contributing to the backlog of cases.18Meaning that there will be a stay in the passing of
judgement and as consequence the right to quick and fair trial is violated.
4.2.3. INCOMPETENCE BY MAGISTRATES
In most instances the orders that magistrate make are so arbitrary, whimsical and capricious. To
that regard the blacks law dictionary defines the aspect of arbitrary and capricious as “a willful
and unreasonable action without consideration or in disregard of facts of law.”19 This aspect was
highlighted in the case of Hahuti v The People in this case the appellant was found in possession
of a stolen ox at least eight months after the theft. The case was founded solely on possession. The
learned magistrate called upon the accused to make a defence and the appellant who was
undefended gave evidence stating that he was in possession of the ox since 1971, thereby supplying
evidence of recent possession. The appellant was convicted of stock theft. However, on appeal the
High Court held that where an accused is found in possession of an ox eight months after it was
stolen it cannot be deemed to be recent possession to enable the court to draw the inference that
the accused had stolen it. It further posited that Section 206 of the Criminal Procedure Code is
mandatory and means that if, at the close of the prosecution, a prima facie case against the accused
is not made out he is entitled to be acquitted. Hence, an error on the part of the trial court in thinking
that there is a prima facie case cannot alter that position.20
Joyce Shezongo-Macmillan, ‘Zambia: Justice sector and the Rule of Law’ Open Society Initiative for Southern
Africa (2013) A review by AfriMAP and the Open Society Initiative for Southern Africa, 66
19
Garner, Bryan A., and Henry Campbell Black. Black's Law Dictionary. 9th ed. St. Paul, MN: West, 2009.
18
20
(1974) ZR 154 (HC)
35
Furthermore, awards in most cases are very varied even within the same court. In a plethora of
cases the quantum is not explained or outlined in the judgment giving the impression that they are
not based on any sound legitimate principles.
4.3. CONCLUSION
In a nutshell this chapter has highlighted the most notable factors that hinder the realization of the
right to a speedy and fair trial. Which is mainly hindered by the delay in the dispensation of justice
in subordinate courts. The problem of delay is seen in various Zambian precedents, both civil and
criminal. Firstly, in the case of Godfrey Miyanda v The High Court21, the applicant had applied to
the Supreme Court for leave to apply for an order of mandamus to compel the learned High Court
Judge seized of his suit to determine the action and deliver judgment. This was owing to the fact
that a civil suit in which the applicant was plaintiff was pending in the High Court in which, it was
alleged that the reserved judgment had been pending for eight or more months. It was this
dissatisfaction that led to the applicant’s action. Although the court did not define what constitutes
delay or make any pronouncements as to the delay, the facts, going unchallenged, demonstrate the
delay in delivery of judgments in Zambia.
Similarly in the case of Maketo and Others v The People22 in which the appellants had been jointly
charged with manslaughter, the court had on appeal considered the option of increasing the
sentence of the accused, but refrained from doing so as a result of the lapse of time which had
expired since the sentence and the time at which the appeal had been heard.
21
22
1984 ZR 62
1979 ZR 23
36
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
5.1. INTRODUCTION
This research has analyzed the constitutionality of the subordinate courts in dealing with cases that
fall beyond their sentencing power and the aspect of them transferring the said cases to the high
court for sentencing. The rationale behind this chapter was to critically analyze how the
fundamental right to a speedy and fair trial is undermined by the delays experienced in the
dispensation of justice. Especially those set-in motion by the mentioned setup of subordinate courts
deliberating on cases beyond their jurisdiction and transferring them to the high court for
sentencing. This chapter will consequently offer a summary of the previous chapters while
outlining the main findings from the analysis. It will also provide recommendations on how
improved court proceedings could be utilized in the realization of the fundamental right to a speedy
and fair trial.
5.2. CONCLUSIONS
Chapter one addressed the main aim of the research, its objectives, as well as a literature review
which has initiated this research. Furthermore, it provided the conceptual basis that initiated this
research. It offered an introduction into the research of the constitutionality of subordinate courts;
prosecution and transfer of cases to the High Court beyond their jurisdiction. This chapter further
provided a background to the research giving a foundation on which the research was conducted.
It additionally presented a statement of the problem which demonstrated the knowledge gap that
this research seeks to fill, its objectives, the methodology used in the research and the literature
that initiated the research.
37
Chapter two sought to present an understanding on the establishment and jurisdiction of
Subordinate Courts. With regards to the aspect of jurisdiction, it discussed it in relation to the
Subordinate Courts deliberation on both civil and criminal matters. It further highlighted on the
limit and extent of the application of the jurisdiction that the subordinate courts wield in criminal
offences. Furthermore, chapter two also highlighted on the aspect of Subordinate Courts holding
preliminary inquiries on certain offences.to that regard it has identified the problems that
mushroom from such a practice.
Chapter three identified the importance of holding a speedy and fair trial in Subordinate Courts.
Furthermore, it endeavored to discuss the importance of the notion of speedy and fair trial in the
dispensation of justice. It has further highlighted that speedy and fair trial are one of the ways to
prevent the miscarriages of justice. This is due to the strong principles of justice embedded in this
aspect which contend that, every person accused of a crime should have their guilt or innocence
determined by a fair and effective legal process. However, it goes further than protecting suspects
and defendants, without fair trials, as victims can have no confidence that justice will be done.
Without speedy and fair trial trust in the government and the rule of law collapses. It further
contended that a speedy and fair trial is a basic notion of the rule of law and the principles of due
process. These are fundamental to the protection of human rights. It can be categorically be stated
that the center of each legal system therefore, must be a means by which legal rights are asserted
and breaches remedied through the process of a speedy and fair trial in court, as the law would be
rendered useless without effective remedies.
Chapter four examined the challenges that hinder the realization of the right to a speedy and fair
trial. It posited that there are a numerous challenges facing the Zambian court system however one
38
of the most perennial is that of inefficiency. It also tackled on the issue of backlog of cases and
how they to affect the dispensation of justice in due time.
5.3. RESEARCH FINDINGS
The findings from the research are outlined as follows;
1. In chapter two the research revealed that, even in instances where magistrate has power to
sentence an offender, a sentence given must be referred to the High Court for confirmation but this
however does not affect the jurisdictional power of the court to hear the offence, they merely affect
sentencing and execution of the sentence.
2. Additionally chapter two revealed that the Subordinate Courts cannot determine cases involving
homicide which by and large contribute to the aspect of backlog of cases.
3.In chapter three it was observed that a Criminal defendant may voluntarily give up his or her
right to public proceedings or the judge may limit public access in certain circumstances ‘for
example, a judge might order a closed hearing to prevent intimidation of a witness or to keep order
in courtroom.
5.4. RECOMMENDATIONS
From the research conducted, it is unchallenged that the dispensation of justice is limited by several
factors in Zambia which are further causing a failure to enjoy the right to a speedy and fair trial.
With these factors having been discussed, this research identifies and recommends the following
measures:
39
1. That the judiciary, through its head, the Chief Justice should strictly enforce the Rules on
delivery of rulings and judgments and should penalize judges that fail to meet case disposal
targets.
2. The state should uphold its constitutional obligation of ensuring speedy trial of the accused
by setting procedures that would guarantee that right.
3. Court procedures are very complex, costly and tardy, putting the poor people at an extreme
disadvantage. Therefore, the state should ensure that the judicial disputes resolution
mechanisms are equally and effectively accessible to all its citizens for the purpose of
resolution of their legal dispute and enforcement of their fundamental and legal right.
4. With regards to the limited jurisdiction of subordinate courts, if only the jurisdiction of
Resident Magistrate was extended to include presiding over homicide cases, it might go a
long way towards improving access to justice for those awaiting murder trials.
5.5. CONCLUSION
In a nutshell, the right to a speedy trial is an integral part of the principle of fair trial and is
fundamental to the international human rights discourse. A violation of the speedy trial rule means
that any conviction and sentencing must be wiped out and the changes must be dismissed if the
case has not reached trial.
40
BIBLIOGRAPHY
BOOKS
Bryan G and Campbell H, Black. Black's Law Dictionary (9th ed. St. Paul, MN: West, 2009)
Solomon C, Differentiated Case Flow Management (US Department of Justice, Washington
DC)
Davies H, Human Rights and Civil Liberties (Willian publishing Devon 2003)
Silungwe A, Administration of Justice in Zambia (the University of Zambia 1979)
Chenwi L, Fair Trial Rights and their Relation to Death penalty in Africa (Cambridge
University Press 2006)
Chandrasekhara P and Kelkar R, Criminal Procedure (Eastern Book Company.
Lucknow, 2008).
Richard Moules, The Right to Trial within a Reasonable Time (Cambridge University press
2004)
Mutunya W, The Judiciary of Kenya: sentencing guidelines, http://www.judiciary.go.ke
ARTICLES, REPORTS, JOURNALS
Alan Schneider right to a speedy trial.http//www.jstor.org/Stable/1227512
African Institute for policy and research, project spring 2020/No.17 https://scholarship.law.cornell.edu
Obadina D, ‘The Right to Speedy Trial in Namibia and South Africa’ (School of oriental and
African Studies). https://www.jstor.org/stable/745430
Mahandik D, ‘Analysis of causes of pendency in High Courts and subordinate courts in
Maharashtra’( 2018)
Joseph G, ‘Speedy Trial Rights in Application’(1980) 48 Fordham L. Rev.611 Available at
http://ir.lawnet.fordham.edu/f/r/vol 48/iss 5/1
Bridges L and Jacobs D, ‘Reducing Delays in the Criminal Justice system’ (1999) the views of
defensive lawyers Lord Chancellors Dept. Research Secretariat
Powell L, ‘The Right to a
http://www.jstor.org/stable/25723242
Fair
Trial
(American
Bar
Association’(1965)
O’Donnell M and Munalula M, ‘Zambia Rule of Law Assessment’(2009) USAID. Available
from: http://pdf.usaid.gov/pdf_docs/Pnadt562.pdf [Accessed October 2021].
41
Tiwari N, ‘Fair trial vis-à-vis criminal justice administration’ (2010) A critical study of Indian
criminal justice system, Indian Law Institute, New Delhi, India.
Kaaba O, ‘constitutionality of criminal procedure and prison laws in Africa: Zambia, (2016)
Purdy R, ‘The Zambian judicial system’ (2003) A Review of The Jurisdictional Law.CHP03.
Sharma S, ‘Fundamental Right to speedy trial: judicial examination Journal of the Indian law
institute’. Http://www.jstor.org/stable/43987473
Shezongo-Macmillan, J ‘Zambia: Justice Sector and the Rule of Law’ (2013) A review by
AfriMAP and the Open Society Initiative for Southern Africa
Rodger Purdy, The Zambian judicial system: A Review of The Jurisdictional Law.CHP03.
Nkonde S and Ngwira W , ‘Accused’s Rights and Access to Prosecution Information in
Subordinate Courts in Zambia’(2007) www.southernafricalitigationcentre.org
Banda T, ‘Access to Justice: Court Efficiency in Zambia, Institute for African Development,
Southern African Institute for Policy and Research, Project Report Spring’ (2020) /No.17
https://scholarship.law.cornell.edu/scr/
The Judiciary of Zambia, subordinate courts: process and procedures. Http://www.judiciary of
zambia.com
Yashomati Ghosh, Indian Judiciary: An Analysis of the Cyclic Syndrome of Delay, Arrears and
Pendency Asian Journal of Legal Education5 (1) 21–39© 2017 The West Bengal National
University of Juridical Sciences SAGE Publications sagepub.in/home.nav DOI:
10.1177/2322005817733566
http://ale.sagepub.com
ONLINE SOURCES
The America bar association, how court works, htp//www.americanbar.org
Sylvester A. Kalembera, Jurisdictional Limits for Magistrates Are Hindering Access to Justice in
Malawi. Http://www.southernafricanlitigationcentre.org
The Judiciary of Zambia, subordinate courts: process and procedures. Http://www.judiciary of
zambia.com
The Judiciary of Zambia, subordinate courts: process and procedures. Http://www.judiciary of
zambia.com
Department of Justice, Justice for all—Three year’s achievements, Government of India,
http://doj.gov.in/sites/default/files/Justice%20for%20All_High.pdf
42