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Civil and Criminal Procedure - LPR 3952
Civil and Criminal Procedure (University of Lusaka)
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THE UNIVERSITY OF ZAMBIA
INSTITUTE OF DISTANCE EDUCTION
BACHELOR OF LAWS
MODULE
LPU: 3952 - CIVIL AND CRIMINAL PROCEDURE
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© COPYRIGHT
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted in any form or by any means, electronic or mechanical, including photocopying, recording
or otherwise without the permission of the University of Zambia, Institute of Distance Education.
Inquiries concerning reproduction or rights and requests for additional training materials should be
addressed to:
The Director,
Institute of Distance Education
The University of Zambia
P.O. Box 32379
Lusaka
Zambia
Tel: +211 290719
Fax: +211 253952
E-mail: director-ide@unza.zm
Website: www.unza.zm
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TABLE OF CONTENTS
© COPYRIGHT .................................................................................................................................................. 2
ACKNOWLEDGEMENTS .................................................................................................................................... 8
MODULE STRUCTURE ....................................................................................................................................... 9
INTRODUCTION ............................................................................................................................................. 10
MODULE AIM ................................................................................................................................................. 10
OBJECTIVES .................................................................................................................................................... 10
ASSESSMENT DETAILS .................................................................................................................................... 10
1.1
READINGS ......................................................................................................................................... 10
TIME FRAME .................................................................................................................................................. 11
STUDY SKILLS ................................................................................................................................................. 11
NEED HELP? ................................................................................................................................................... 12
UNIT ONE ....................................................................................................................................................... 13
INTRODUCTION TO CIVIL AND CRIMINAL PROCEDURE .................................................................... 13
1.1 INTRODUCTION .......................................................................................................................................... 13
1.2 AIM ............................................................................................................................................................. 13
1.3 OBJECTIVES ................................................................................................................................................. 13
1.4 TIME REQUIRED .......................................................................................................................................... 13
1.5 REFLECTION ................................................................................................................................................ 13
SOURCES OF CIVIL PROCEDURE ........................................................................................................................ 14
THE HIERARCHY OF COURTS IN ZAMBIA ........................................................................................................... 18
JURISDICTION ................................................................................................................................................... 22
STARE DECISIS................................................................................................................................................... 22
CHIEF JUSTICE AS A PUISINE JUDGE .................................................................................................................. 23
CAUSE OF ACTION ............................................................................................................................................ 24
LIMITATION OF ACTIONS .................................................................................................................................. 24
PARTIES ............................................................................................................................................................ 25
SERVICE OF PROCESS ........................................................................................................................................ 26
ACTIVITIES ........................................................................................................................................................ 27
SUMMARY ........................................................................................................................................................ 28
UNIT TWO ...................................................................................................................................................... 29
MODE OF COMMENCEMENT IN THE HIGH COURT............................................................................... 29
2.1 INTRODUCTION .......................................................................................................................................... 29
2.2 AIM ............................................................................................................................................................ 29
2.3 OBJECTIVES ................................................................................................................................................. 29
2.4 TIME REQUIRED .......................................................................................................................................... 29
2.5 REFLECTION ................................................................................................................................................ 29
WRIT OF SUMMONS ......................................................................................................................................... 30
ORIGINATING SUMMONS................................................................................................................................. 30
ORIGINATING NOTICE OF MOTION .................................................................................................................. 31
PETITION........................................................................................................................................................... 31
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APPEAL ............................................................................................................................................................. 31
ACTIVITIES ........................................................................................................................................................ 32
SUMMARY ........................................................................................................................................................ 32
UNIT THREE ................................................................................................................................................... 33
PLEADINGS.................................................................................................................................................... 33
3.1 INTRODUCTION .......................................................................................................................................... 33
3.2 AIM ............................................................................................................................................................. 33
3.3 OBJECTIVES ................................................................................................................................................. 33
3.4 TIME REQUIRED .......................................................................................................................................... 33
3.5 REFLECTION ................................................................................................................................................ 34
3.7 STATEMENT OF CLAIM ................................................................................................................................ 35
3.8 DEFENCE ..................................................................................................................................................... 35
3.9 REPLY .......................................................................................................................................................... 35
3.10 COUNTER-CLAIM ...................................................................................................................................... 36
3.11 DEFENCE TO COUNTER-CLAIM ................................................................................................................. 36
3.12 ACTIVITIES................................................................................................................................................. 36
3.12 SUMMARY ................................................................................................................................................ 36
UNIT FOUR ..................................................................................................................................................... 37
SUBORDINATE COURT CIVIL PROCEDURE............................................................................................ 37
4.1 INTRODUCTION .......................................................................................................................................... 37
4.2 AIM ............................................................................................................................................................. 37
4.3 OBJECTIVES ................................................................................................................................................. 37
4.4 TIME REQUIRED .......................................................................................................................................... 37
4.5 REFLECTION ................................................................................................................................................ 37
4.6 MODE OF COMMENCEMENT OF SUITS ....................................................................................................... 38
4.7 INTERLOCUTORY PROCEEDINGS ................................................................................................................. 39
4.8 ENFORCEMENT ORDERS ............................................................................................................................. 39
4.9 APPEALS ...................................................................................................................................................... 39
4.10 ACTIVITIES................................................................................................................................................. 40
4.11 SUMMARY ................................................................................................................................................ 40
UNIT FIVE ....................................................................................................................................................... 41
CRIMINAL JUSTICE INSTITUTIONS IN ZAMBIA .................................................................................... 41
5.1 INTRODUCTION .......................................................................................................................................... 41
5.2 AIM ............................................................................................................................................................. 41
5.3 OBJECTIVES ................................................................................................................................................. 41
5.4 TIME REQUIRED .......................................................................................................................................... 41
5.5 REFLECTION ................................................................................................................................................ 41
5.6NATIONAL PROSECUTIONS AUTHORITY ...................................................................................................... 42
5.7 ZAMBIA POLICE SERVICE ............................................................................................................................. 42
5.8 ANTI-CORRUPTION COMMISSION .............................................................................................................. 43
5.9 FINANCIAL INTELLIGENCE CENTRE .............................................................................................................. 43
5.10 DRUG ENFORCEMENT COMMISSION ....................................................................................................... 43
5.11 IMMIGRATION DEPARTMENT................................................................................................................... 44
5.12 ROAD TRANSPORT AND SAFETY AGENCY ................................................................................................. 44
5.13 AD HOC INSTITUTIONS .............................................................................................................................. 44
5.14 ACTIVITIES................................................................................................................................................. 45
5.15 SUMMARY ................................................................................................................................................ 45
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UNIT SIX ......................................................................................................................................................... 46
THE DIRECTOR OF PUBLIC PROSECUTIONS .......................................................................................... 46
6.1 INTRODUCTION .......................................................................................................................................... 46
6.2 AIM ............................................................................................................................................................. 46
6.3 OBJECTIVES ................................................................................................................................................. 46
6.4 TIME REQUIRED .......................................................................................................................................... 46
6.5 REFLECTION ................................................................................................................................................ 46
APPOINTMENT ................................................................................................................................................. 47
POWERS ........................................................................................................................................................... 47
CONSENT TO PROSECUTE ................................................................................................................................. 48
INSTRUCTIONS ................................................................................................................................................. 49
DISCONTINUANCE OF PROCEEDINGS ............................................................................................................... 49
6.11 ACTIVITIES................................................................................................................................................. 50
6.12 SUMMARY ................................................................................................................................................ 50
UNIT SEVEN ................................................................................................................................................... 51
CHARGE SHEET AND INFORMATION ...................................................................................................... 51
7.1 INTRODUCTION .......................................................................................................................................... 51
7.2 AIM ............................................................................................................................................................. 51
7.3 OBJECTIVES ................................................................................................................................................. 51
7.4 TIME REQUIRED .......................................................................................................................................... 51
7.5 REFLECTION ................................................................................................................................................ 51
7.6 CHARGE SHEET............................................................................................................................................ 52
7.7 INFORMATION ............................................................................................................................................ 56
OBJECTIONS TO A CHARGE OR AN INFORMATION ........................................................................................... 57
AMENDMENT OF A CHARGE OR INFORMATION............................................................................................... 57
JOINDER OF COUNTS ........................................................................................................................................ 57
JOINDER OF ACCUSED PERSONS ....................................................................................................................... 58
7.12 ACTIVITIES................................................................................................................................................. 58
7.13 SUMMARY ................................................................................................................................................ 58
UNIT EIGHT .................................................................................................................................................... 59
THE ARREST PROCESS AND PROCEDURE .............................................................................................. 59
8.1 INTRODUCTION .......................................................................................................................................... 59
8.2 AIM ............................................................................................................................................................. 59
8.3 OBJECTIVES ................................................................................................................................................. 59
8.4 TIME REQUIRED .......................................................................................................................................... 59
8.5 REFLECTION ................................................................................................................................................ 60
COGNIZABLE AND NON-COGNIZABLE OFFENCES ............................................................................................. 60
ARREST WITH WARRANT .................................................................................................................................. 60
ARREST WITHOUT WARRANT ........................................................................................................................... 61
SEARCH WARRANT ........................................................................................................................................... 61
ILLEGALLY OBTAINED EVIDENCE ....................................................................................................................... 61
8.11 ACTIVITIES................................................................................................................................................. 62
8.12 SUMMARY ................................................................................................................................................ 62
UNIT NINE ...................................................................................................................................................... 63
BAIL APPLICATIONS ................................................................................................................................... 63
9.1 INTRODUCTION .......................................................................................................................................... 63
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9.2 AIM ............................................................................................................................................................. 63
9.3 OBJECTIVES ................................................................................................................................................. 63
9.4 TIME REQUIRED .......................................................................................................................................... 63
9.5 REFLECTION ................................................................................................................................................ 63
BAILABLE AND UNBAILABLE OFFENCES ............................................................................................................ 64
POLICE BOND .................................................................................................................................................... 64
BAIL PENDING TRIAL ......................................................................................................................................... 65
BAIL PENDING CONFIRMATION ........................................................................................................................ 65
BAIL PENDING APPEAL ...................................................................................................................................... 66
CONSTITUTIONAL BAIL ..................................................................................................................................... 67
9.12 ACTIVITIES................................................................................................................................................. 67
9.13 SUMMARY ................................................................................................................................................ 67
UNIT TEN ....................................................................................................................................................... 68
TRIAL PROCESS ............................................................................................................................................ 68
10.1 INTRODUCTION ........................................................................................................................................ 68
10.2 AIM ........................................................................................................................................................... 68
10.3 OBJECTIVES ............................................................................................................................................... 68
10.4 TIME REQUIRED ........................................................................................................................................ 68
10.5 REFLECTION .............................................................................................................................................. 68
TAKING OF PLEA ............................................................................................................................................... 69
PLEA OF GUILTY ................................................................................................................................................ 70
WITHDRAWAL OF PLEA .................................................................................................................................... 70
ADMISSION OF GUILTY PROCEDURE ................................................................................................................ 70
PLEA OF INSANITY ............................................................................................................................................. 71
SUBMISSION OF CASE TO ANSWER .................................................................................................................. 72
CASE STATED .................................................................................................................................................... 73
REVIEW ............................................................................................................................................................. 73
SENTENCING ..................................................................................................................................................... 74
JUDGEMENT ..................................................................................................................................................... 75
10.16 ACTIVITIES............................................................................................................................................... 75
10.17 SUMMARY .............................................................................................................................................. 75
UNIT ELEVEN .................................................................................................................................................. 76
PROCEEDINGS AGAINST JUVENILES ...................................................................................................... 76
11.1 INTRODUCTION ........................................................................................................................................ 76
11.2 AIM ........................................................................................................................................................... 76
11.3 OBJECTIVES ............................................................................................................................................... 76
11.4 TIME REQUIRED ........................................................................................................................................ 76
11.5 REFLECTION .............................................................................................................................................. 76
PRACTICE AND PROCEDURE OF JUVENILE COURTS .......................................................................................... 77
CIRCUMSTANCES IN WHICH JUVENILES CAN BE TRIED AS ADULTS................................................................... 79
11.8 ACTIVITIES................................................................................................................................................. 79
11.9 SUMMARY ................................................................................................................................................ 79
UNIT TWELVE ................................................................................................................................................. 80
IMPORTANT COMPONENTS OF CRIMINAL PROCEEDINGS ................................................................ 80
12.1 INTRODUCTION ................................................................................................................................ 80
12.2 AIM ...................................................................................................................................................... 80
12.3 OBJECTIVES ....................................................................................................................................... 80
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12.4 TIME REQUIRED ............................................................................................................................... 80
12.5 REFLECTION ...................................................................................................................................... 80
12.6 INQUESTS ........................................................................................................................................... 81
TRIAL-WITHIN-A-TRIAL ............................................................................................................................ 82
VOIRE DIRE ................................................................................................................................................ 82
PRELIMINARY INQUIRIES ........................................................................................................................ 83
12.10 ACTIVITIES .......................................................................................................................................... 83
12.11 SUMMARY ........................................................................................................................................... 83
UNIT THIRTEEN .............................................................................................................................................. 84
PUNISHMENT ................................................................................................................................................ 84
13.1 INTRODUCTION ................................................................................................................................ 84
13.2 AIM ...................................................................................................................................................... 84
13.3 OBJECTIVES ....................................................................................................................................... 84
13.4 TIME REQUIRED ............................................................................................................................... 84
13.5 REFLECTION ...................................................................................................................................... 84
13.7 ACTIVITIES ............................................................................................................................................ 90
13.8 SUMMARY ............................................................................................................................................. 90
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ACKNOWLEDGEMENTS
The University of Zambia (UNZA), Institute of Distance Education (IDE) wishes to thank Mr Joseph
Chirwa for writing this module, LPU 3952: Civil and Criminal Procedure.
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MODULE STRUCTURE
I.
Introduction
II.
The Aim of the Module
III.
Module Objectives [Learning outcomes]
IV.
Assessment
V.
Prescribed and Recommended Readings
VI.
Time frame
VII.
Study skills [Learning tips]
VIII.
Need help [Studying at a distance]
The module is divided into nine units. Each unit addresses some of the learning outcomes. You will
be asked to complete various tasks so that you can demonstrate your competence in achieving the
learning outcomes.
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INTRODUCTION
This module is aimed at equipping Bachelor of Laws (LLB) students with the understanding of civil
and criminal procedure in Zambia especially as regards the High Court and the Subordinate Courts.
MODULE AIM
The course aims to assist students in understanding the civil and criminal procedure in the High
Court and Subordinate Courts.
OBJECTIVES
By the end of the course, students should be able to:

Provide working definitions of the concepts in civil and criminal procedure.

Explain the hierarchy of courts in Zambia and their composition and jurisdiction.

Outline the various modes of commencement of proceedings in Zambia.

Discuss the forms and contents of various types of pleadings used in the High Court and
Subordinate Court in Zambia.

Identify the various elements of a judgement and modes of its enforcement.

Identify the various interim and permanent reliefs and remedies available in civil and criminal
courts in Zambia.
ASSESSMENT DETAILS

ASSESSMENT
Continuous assessment
Final examination
TOTAL
40%
60%
100%
1.1 READINGS
Prescribed Readings


The Hon. Dr. Patrick Matibini, Zambian Civil Procedure: Commentaries and
Cases: Volume I, LexisNexis (2017).
The Hon. Dr. Patrick Matibini, Zambian Civil Procedure: Commentaries and Cases: Volume
II, LexisNexis (2017).
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



The Hon. Mr. Justice Blair, Bullen & Leake & Jacob’s Precedents of Pleadings, 17th Edition,
Volume I, Sweet & Maxwell (2012).
The Hon. Mr. Justice Blair, Bullen & Leake & Jacob’s Precedents of Pleadings, 17th Edition,
Volume II, Sweet & Maxwell (2012).
William Blake Odgers, The Principles of Pleading, Practice and Procedure in Civil Actions in
the High Court of Justice, 3rd Edition, (1897).
John O’Hare and Kevin Browne, O’Hare and Browne Civil Litigation, 12th Edition, Sweet &
Maxwell (2005).
Recommended Readings




The Constitution of Zambia, Chapter 1 of the Laws of Zambia.
The Criminal Procedure Code, Chapter 88 of the Laws of Zambia.
The Penal Code, Chapter 87 of the Laws of Zambia.
The High Court Act, Chapter 27 of the Laws of Zambia.
 The Subordinate Courts Act, Chapter 28 of the Laws of Zambia
 The Rules of Practice of the Supreme Court of England (White Book , 1999
Edition)
TIME FRAME

You require 39 hours complete the activities, exercises and the final
coursework.

At least 3 hours is required on each component.
STUDY SKILLS
For you to be able successfully complete this module, you will need do the following:

Have dedication towards your studies by managing time and stress.

Acquaint yourself with essay planning, coping with examinations and use of library
and web based learning resources such as Google scholar, law teacher and kaslegal.
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NEED HELP?
In case you have difficulties during the duration of the course, please get in touch with
the Director, Institute of Distance Education, or the resident lecturer in your province.
All enquiries in connection with the payment of fees should be directed to the
Director, Institute of Distance Education:
The Director,
Institute of Distance Education,
University of Zambia,
P. O. Box 32379,
10101 Lusaka
Coordinator, Learner Support Services (Land Cell): +260 978772248
Senior Administrative Officer
(Programme Development & Production)
IDE Land Line:
+260 977639993
+260 211 290719
IDE Fax:
+260 211 290719
IDE E-mail:
director-ide@unza.zm
http://www.unza.zm
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UNIT ONE
INTRODUCTION TO CIVIL AND CRIMINAL PROCEDURE
1.1 INTRODUCTION
The main areas of practice of the law may be divided into civil and criminal law. Criminal law
is generally concerned with the administration of the Penal Code and Criminal Procedure
Code. The first provides the substantive criminal law and the second with procedural criminal law. The
rest of the law may be termed civil law generally under which we find the law of contract, tort,
administrative and constitutional law among others.
1.2 AIM
The aim of this unit is to introduce students to the procedure found in civil and criminal
law in Zambia.
1.3 OBJECTIVES
By the end of this unit you should be able to do the following
i.
ii.
iii.
iv.
v.
vi.
Define the term and concept of jurisdiction and stare decisis.
Explain the sources of civil and criminal procedure.
Describe the hierarchy of courts in Zambia.
Demonstrate an understanding of citation of parties in causes.
Explain the procedure involved in service of court process.
Discuss what constitutes a cause of action in civil procedure.
1.4 TIME REQUIRED
Minimum amount of time on the unit is 3 hours.
1.5 REFLECTION
Think of how lawyers would conduct court business with rules and procedure of
practice. Would it work?
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SOURCES OF CIVIL PROCEDURE
The most important sources of civil procedure in Zambia include the following:
a) The Constitution of Zambia
Since 1964, Zambia has only had three constitutional orders. The current constitution in force is the
Constitution of 19911which was amended in 19962 and 20163 respectively. The other two Constitutions
being the 19644 and 19735 constitutions respectively which were repealed in 1973 and 1991.
The Constitution is the supreme law of the land and any law that is inconsistent with is void to the extent
of the inconsistency.6 It also creates and establishes the three arms of government and endows them
with authority and powers, duties and functions, roles and responsibilities. These arms are the executive
(provided under Part VII)7; the legislature (Part VI)8; and the judiciary (Part VIII)9.
Thus, the constitution is and remains the paramount source of civil procedural law. As will be seen, it
apportions the jurisdictions of the various courts to entertain matters.
b) The Judiciary Administration Act, No. 23 of 2016
Section 21 of the Act provides that the judge-n-charge, who is an officer assigned by the Chief Justice,
has the powers to allocate cases to other such judges hear and determine the causes. The Act also
provides for other matters relating to the administration of the judiciary.
c) The Supreme Court Act, Amendment Act No. 24 of 2016
This Act brought fundamental changes to the procedure and practice in the Supreme Court of Zambia.
Section 23 of the Act provides that:
Subject to the exceptions and restrictions contained in section twenty-four, an
appeal in civil case or matter shall lie to the Court from a judgement of the
Court of Appeal.
Thus, previously, appeals from the High Court lay in the Supreme Court but this provision meant that
only appeals from the Court of Appeal can be entertained in the Supreme Court. Other changes in the
Act meant that the Supreme Court only has appellate jurisdiction and has no original jurisdiction as in
the past to hear and determine election petitions for example.10
d) The High Court Act No. 21 of 2016
1
Act No. 1 of 1991
Act No. 18 of 1996
3
Act No. 2 of 2016
4
The Zambia Independence Act, 1964, Appendix No.1
5
Act No. 27 of 1973 famously called the One Party Constitution which removed the double entrenchment
clause, that is, altered the Bill of Rights and removed Article 79
6
Article 1 of Act No. 2 of 2016
7
see Article 91 (2)
8
see Article 62 (2)
9
see Article 119 (1)
10
section 4
2
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This Act divides the High Court into four divisions, namely:11




Industrial Relations Court
Commercial Court
Family Court
Children’s Court
Detailed rules on the practice and procedure in the High Court may be found in the High Court Rules
under the High Court Act, Chapter 27 of the Laws of Zambia.12
e) The Subordinate Courts Act, Chapter 28 of the Laws of Zambia
This Act provides for procedure and practice in the Subordinate Courts of Zambia. Article 266 of
Constitution of Zambia13defines a subordinate court as a court subordinate to the High Court. These
courts are usually called ‘Magistrates’ Courts” because they are presided over by Magistrates of the
following Classes:



Class I which includes Principal Resident Magistrate, Chief Resident Magistrate, Senior
Resident Magistrate, Resident Magistrate and Magistrate Class I preside over Subordinate
Court of the First Class;14
Class II preside over Subordinate Court of the Second Class; and
Class III presides over Subordinate Court of the Third Class.
The jurisdiction of these courts is limited to the districts in which they are constituted and cannot e
xtend those geographical limits.15 Section 12 of the Act provides for practice and procedure which
is generally found in the Subordinate Court Rules under the Act. The jurisdiction of the Courts is f
ound under section s 20-23 of the Act.16
f) The Supreme Court Practice (White Book, 1999 Edition)
Section 10 of the High Court Act provides for the use of the Supreme Court Practice of England
whenever there is a lacuna in the High Court Rules.17 This section reads that:
The jurisdiction of the Court shall, as regards practice and procedure, be
exercised in the manner provided for by this Act and the Criminal Procedure
Code, or by any other written law, or by such rule, orders or directions of the
Court as may be made under this Act, or the said Code, or such written law,
11
section 3(1)
see also section 10 of Chapter 27 of the laws of Zambia
13
Act No. 2 of 2016
14
all qualified advocates except Class I
15
The People v Basil Masauso And Patson Musenge Sakamba (1980) Z.R. 243 (H.C.); section 4 of the Act
16
see amendments under Act No. 4 of 2018
17
Guest and Another v Makinga and Another (2011) ZR 370; Hotelier Limited v Finsbury Investments Limited
(2012) 1 ZR 17
12
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and in default thereof in substantial conformity with the law and practice for
the time being observed in England in the Court of Justice:
Provided that the Civil Practice 1999 (The Green Book) of England or any
other civil court rules issued after 1999 in England shall not apply to Zambia
unless they relate to matrimonial causes.
g) Authoritative Texts
Authoritative texts in books and materials authored by renowned legal minds are also sources of the
civil procedure in Zambia. Such works as Odgers Pleadings, Bullen’s and Leake’s Pleadings and
Matibini’s Civil Procedure in Zambia are authorities when it comes to civil procedure. They may not
be binding sources but they are definitely persuasive sources of the law.
h) Case Law
A plethora of cases decided by superior courts; that is the Supreme Court, Constitutional Court, Court
of Appeal and High Court, have become embodied into the law and have provided rules of law which
are authoritative in line with the principle of stare decisis.18 Cases such as Chikuta v Chipata Rural
Council19 and Leopold Walford Zambia Limited v Unifreight20 among others are authorities on mode of
commencement and service outside jurisdiction.
1.6 SOURCES OF CRIMINAL LAW AND PROCEDURE
The most distinguished sources of criminal law and procedure include the following:
a) The Constitution of Zambia
The Constitution of Zambia is the most important source of criminal law and procedure in this country.
The Constitution is the supreme law of the Republic and any other written law, customary law and
customary practice that is inconsistency with its provisions is void to the extent of the inconsistency.21
Part VIII of the Constitution establishes the judiciary and specifically Article 119 vests judicial authority
in the courts which have been tasked to hear civil and criminal matters in exercising their judicial
functions. Further, Article 120 of the Constitution establishes the system of courts.
The most important aspect of criminal procedure is found under Article 18 of the Constitution of Zambia
of 1991 as amended by Act No. 18 of 1996. Article 18 is the basis of criminal procedure in Zambia as it
provides fundamental aspects of criminal law such as guarantee of a free and fair trial,22 presumption
of innocence23 and need to be given a charge in advance24 to mention a few.
b) The Penal Code
The Penal Code Act, Chapter 87 of the laws of Zambia is a criminal code that contains a list of all acts,
conduct and omissions that are classified as criminal offences in Zambia and the respective punishments
18
this principle is discussed in detail below
(1974) ZR 241
20
(1985) ZR 203 (SC)
21
Constitution of Zambia (Amendment) Act No. 2 of 2016, Article 3 (1)
22
Article 18 (1)
23
Article 18 (2) (a)
24
Article 18 (2) (b)
19
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or sanctions. It contains the substantive criminal law for this jurisdiction. It is divided into two parts
whereby Part I deals with general provisions while Part II deals with crimes. It is the highest ranked
and authoritative statute as regards substantive criminal law in Zambia. This does not mean other
statutes on criminal law are not important but it can be said that they play a complimentary and
supplementary role to the code.
c) The Criminal Procedure Code
Zambia’s procedural criminal law is found in the Criminal Procedure Code Act, Chapter 88 of the laws
of Zambia. It is the highest ranked and authoritative statute as regards criminal procedure in Zambia.
d) Other Statutes
Other statutes exist that compliment and supplement both the Penal Code and the Criminal Procedure
Code. Some pieces of legislation are tailored to suit specific crimes such as Anti-Corruption Act No. 12
of 2012, Anti-Terrorism Act, 2007, Road Traffic Act No. 11 of 2002, State Security Act, Chapter 111of
the laws of Zambia and the Forfeiture of Proceeds of Crime Act No. 19 of 2010 among others. Zambia
has a host of legislation outside the Penal Code and the Criminal Procedure Code that deal with criminal
law, both substantive and procedural criminal law.
e) By-Laws
By-laws are created by municipalities across the Country and are as a result of delegated legislation.
By- laws have the force of law as if passed by the country’s legislature. A good example is one on street
vending by various councils across the country. These usually result in payment of fines and rarely
attract imprisonment.
f) Customary Law
The Constitution of Zambia recognises customary law and practice as part of the law in Zambia
provided that it is not inconsistent with the provisions of the constitution.25 Article 7 of the Constitution
of Zambia (Amendment) Act No. 2 of 2002 provides that the laws of Zambia consist of:
a)
b)
c)
d)
e)
this Constitution;
laws enacted by Parliament;
statutory instruments;
Zambian customary law which is consistent with this Constitution; and
the laws and statutes which apply or extend to Zambia, as prescribed.
The case of Mphumeya v R26 illustrates the position of customary law as it relates to criminal law.27
25
supra note 1
(1956) R&N 240; see also R v Chinjamba
27
See also section 16 of the Subordinate Courts Act, Chapter 28 of the Laws of Zambia and section 12 of the
Local Courts Act, Chapter 29 of the Laws of Zambia; Chanock, M. (1998). Law, Custom and Social Order: The
Colonial Experience in Malawi and Zambia. Portsmouth: Heinemann; Mittlebeeler, E.M. (1976). African Custom
and Western Law: The Development of the Rhodesian Criminal Law for Africans. New York: Africana Publishing
Company
26
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g) Common Law Principles
The Honourable Mr. Justice Chirwa in People v Shamwana and Others28 held that principles of English
Common Law were applicable to Zambia in the absence of specific legislation as per provisions of the
English Law [Extent of Application] Act, Chapter 11 of the laws of Zambia. This is also the premise of
Article 7 (e) highlighted above.29 This applies to civil procedure as well where common law principles
are applied.
h) Judge-Made Law
Case law or judge-made law become part of the law due to the concept of judicial precedent or stare
decisis. This concept simply means standing by things decided or abiding by precedents decided by
superior courts. Article 120 (1) of the Constitution30 provides for hierarchy of courts as discussed above.
However, Article 266 defines “superior courts” to mean the Supreme Court, Constitutional Court, the
Court of Appeal and the High Court. Decisions of these courts are binding and in Abel Banda v The
People31 it was emphasised that courts should stand by their decisions even if they are erroneous unless
there be a sufficiently strong reason requiring that such decisions should be altered.
i)
Authoritative Texts
Text books and scholarly writings of prominent scholars and academics are also a source of criminal
law and procedure in Zambia. For example, Archbold’s Pleadings in Criminal Pleading, Evidence and
Practice and Smith and Hogan’s Criminal Law are authoritative texts that form part of the law in
Zambia as regards substantive and procedural criminal law.
THE HIERARCHY OF COURTS IN ZAMBIA
Zambia may be said to have two court systems namely, the superior courts and subordinate courts.
Article 120 (1) of the Constitution of Zambia32 provides that:
The Judiciary shall consist of the superior courts and the following courts:
(a) subordinate courts;
(b) small claims courts;
(c) local courts; and
(d) courts, as prescribed.
Article 266 defines a superior court to mean:
the Supreme Court, Constitutional Court, Court of Appeal and High Court
established in accordance with this Constitution.
a) The Supreme Court
The Supreme Court is established by Article 124 of the Constitution and is the final court of appeal and
does not try civil or criminal offences as it is an appellate court that hears appeals from the Court of
28
(1982) ZR 122
generally on the application of Common Law in Zambia see the article by William Church on “The Common
Law and Zambia” in M. Ndulo (ed.) (1984). Law in Zambia. Nairobi: East African Publishing House Ltd.
30
Act No. 2 of 2016
31
(1986) ZR 105
32
(Amendment) Act No.2 of 2016
29
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Appeal.33 It consists of the Chief Justice, the Deputy Chief Justice and eleven other judges. Article 126
provides that:
(1) The Supreme Court shall be constituted by an uneven number of judges of not
less than three judges, except when hearing an interlocutory matter.
(2) The Supreme Court shall be constituted by one judge when hearing an
interlocutory matter.
The Practice and Procedure in the Supreme Court is provided for by section 8 of the Supreme Court,
Chapter 25 of the laws of Zambia and in default the procedure to be used, in criminal matters, is that of
the Court of Criminal Appeal in England.
b) The Constitutional Court
This is the first of its kind in Zambia and only came into existence on the enactment of Act No. 2 of
2016 which is an amendment to the Constitution of Zambia of 1991.34Article 128 of the Constitution
endows the Constitutional Court with original and final jurisdiction to hear matters relating to the
constitution and violation or contravention of the constitution.35
c) The Court of Appeal
The Court of Appeal is created by Article 130 of the Constitution and the Court of Appeal Act No. 7 of
2016. It has jurisdiction to hear appeals from the High Court; other courts, except for matters under the
exclusive jurisdiction of the Constitutional Court; and quasi-judicial bodies, except a local government
elections tribunal. No civil or criminal matters may start from the Court of Appeal as it is an appellate
court and the court shall be constituted by an uneven number of not less than three judges, except when
hearing an appeal in an interlocutory matter. Interlocutory matters include applications for leave to
appeal and applications pending appeal.
d) The High Court
The High Court is created by Article 133 of the Constitution36 and procedure is provided for by the High
Court Rules under the High Court Act, Chapter 27 of the laws of Zambia. By Article 134, which is
subject to Article 128, the High Court has:
a) unlimited and original jurisdiction in civil and criminal matters;
b) appellate and supervisory jurisdiction, as prescribed; and
c) Jurisdiction to review decisions, as prescribed.
The High Court has “original” jurisdiction in the sense that it is the court of first instance to try offences
such as murder, treason and others listed in the schedule to section 11 of the Penal Code. It has
“unlimited” jurisdiction in accordance with the law not above the law. In the case of Kelvin Hang’andu
and Company v Webby Muludisha37, the Supreme Court in affirming the decision in Zambia National
33
Article 125 of the Constitution (Amendment) Act No. 2 of 2016
Act No. 1 of 1991
35
This is subject to Article 28 of Act No. 18 of 1996
36
see also section 3 of the High Court Act, Chapter 27 of the Laws of Zambia
37
SCZ Judgement No. 39 of 2008
34
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Holdings Limited and Another v The Attorney-General and Others38, made the following observations
in relation to this concept:
a) the jurisdiction of the High Court is unlimited but not limitless since the High
Court must exercise its jurisdiction in accordance with the law;
b) the expression “unlimited jurisdiction” should not be conjured with the
power of the High Court and various laws-as a general rule:
i). no cause is beyond the competence and authority of the High Court; and
ii). no restriction applies as to type of cause and other matters as would apply to
the lower courts;
c) However, the High Court is not exempt from adjudicating in accordance with
the law including complying with procedural requirements as well as
substantive limitations; and
d) Although Article 94 of the Constitution of Zambia (Amendment) Act No. 18 of
199639 gives the High Court unlimited jurisdiction, the court is bound by all
laws which govern the exercise of such jurisdiction.40
The High Court has appellate and supervisory jurisdiction over the subordinate court in the form of
appeals41, revision42, case stated43and bail applications.44 This was stated in Golden Daka v The People45
in which it was held that:
Decisions of magistrates can be supervised [by the High Court] in four ways
namely: appeal or case state; review; committal to the High Court for
sentence; and review and confirmation for sentence.
In Chiluba v The People46 it was held that a party to a trial before a subordinate court has a right to
apply to the High Court to change venue or place of trial and the High Court has discretion to change
venue, whenever it has been established to its satisfaction.47
e) The Subordinate Court
Subordinate Courts are established under Article 120 (1) of the Constitution of Zambia (Amendment)
Act No. 2 of 2016. Section 3 of the Subordinate Courts Act, Chapter 28 of the laws of Zambia provides
that:
38
(1994) ZR 22
this provision has since been repealed and replaced by Act No. 2 of 2016
40
these can be summarised to mean that the High Court has no geographical limit, has no limit as regards to
fines and its jurisdiction is subject to the law that created the Court.
41
section 321 of the CPC
42
section 337 of the CPC
43
section 341 of the CPC
44
see generally Mwanza v The People (1976) ZR 124 where it was held that supervision of subordinate courts
by the High Court comes in because the High Court may call for and examine the record of any proceedings
before any subordinate court, for the purpose of satisfying itself as to the correctness, legality or propriety of
any finding, sentence or order, record or passed and to the regularity of any proceedings of any such
subordinate court.
45
(2011) 1 ZR 350
46
(2004) ZR 11 (SC)
47
see section 80 of the CPC which is instructive on this point
39
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There shall be and are hereby constituted courts subordinate to the High
Court in each District as follows:
a) a Subordinate Court of the first class to be presided over by a principal
resident magistrate, a senior resident magistrate, resident magistrate or a
magistrate of the first class;
b) a Subordinate Court of the second class to be presided over by a magistrate
of the second class;
c) a Subordinate Court of the third class to be presided over by a magistrate of
the third class.
According to the Constitution, a subordinate court means a court subordinate to the High Court.48 In
practice, however, subordinate court implies what is loosely called the Magistrate’s Court. These are
courts presided over by magistrates of various classes.49 It is important to note that despite the difference
in classes, all magistrates have equal power and authority implying that one magistrate regardless of
class cannot review the decision of another magistrate and all appeals lie to the High Court.50
The jurisdiction of magistrates as regards criminal law is provided for by section 4 of Chapter 28 which
restricts it to within the limits of the District for which each such court is constituted.51 Section 7 of the
CPC limits sentences which may be imposed by magistrates while section 9 provides for sentences that
require confirmation of the High Court before they can take effect. Section 217 on the other hand
provides for committal of an accused person to the High Court for sentencing upon conviction.52
f) The Local Courts
These are established are established under the Constitution of Zambia53 and by section 4 of the Local
Courts Act.54 All courts are courts of record except local courts.55 Section 5 (1) puts local courts in
different grades and ousts their jurisdiction from certain matters. The civil jurisdiction of the local courts
is provided for under section 8 of the Act. On the other hand, criminal jurisdiction of these courts is
found under section 9 which provides that:
subject to provisions of this Act, a local court shall have and may exercise
jurisdiction, to such extent as may be prescribed for the grade of court to
which it belongs, over the hearing, trial and determination of any criminal
charge or matter in which the accused is charged with having wholly or in
48
Article 266 of Act No. 2 of 2016
take note that Resident Magistrate and upwards are qualified and duly admitted advocates while those from
Magistrate of the First Class are lay persons implying that they are not advocates or legal practitioners though
qualified in other fields.
50
section 7 of the Subordinate Courts Act; Jurisdiction as regards civil procedure has been discussed above
51
see also sections 17 and 19 of the Subordinate Courts Act; sections 66, 69, 70, 71, 72, 73 and 75 of the CPC;
and section 2 (b) of the Penal Code.
52
see The People v Mumbuna Kombelwa (2010) ZR 468 in which it was held that any magistrate from Class III
to I can try cases where there is a mandatory minimum sentence and then in the event of a conviction commit
the accused to the High Court for sentencing. The magistrates of that class cannot sentence above mandatory
sentence on his own.
53
Article 120 (1) (c) of Act No. 2 of 2016
54
Chapter 29 of the laws of Zambia
55
Article 120 (2) of Act No. 2 of 2016
49
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part within the area of jurisdiction of such court, committed, or been
accessory to the commission of an offence.56
Suffice it add that lawyers (advocates or legal practitioners) have no audience in local courts except
when they appear as litigants, be it in civil or criminal proceedings.57
JURISDICTION
The term “jurisdiction” has the following meanings as elucidated in the celebrated case of Miyanda v
The High Court58:
(i) the authority of a court to entertain a cause; and
(ii) the authority of a court to decide on a cause.
It was also emphasised in this case that the jurisdiction of any court is provided for by the legislation
that created that particular court. In other words, the enabling Act confers jurisdiction on a court. Section
5 of the Penal Code provides that:
the jurisdiction of the courts of Zambia for the purposes of this Code extends
to every place within Zambia.
This has to be read together with section 65 of the Criminal Procedure Code (CPC) which provides
that:
every court has authority to cause to be brought before it any person who is
within the local limits of its jurisdiction, and is charged with an offence
committed within Zambia, or which, according to law, may be dealt with as
if it has been committed within Zambia, and to deal with the accused person
according to its jurisdiction.
Thus, these provisions relate to geographical jurisdiction of the courts whereby courts have jurisdiction
to try offences committed within their locality and within Zambia. However, courts in Zambia have
extraterritorial jurisdiction implying they can try offences committed outside Zambia. Section 6 of the
Penal Code endows jurisdiction on Zambian Courts to try offences committed outside Zambia or partly
within and partly outside Zambia. This position was restated in the case of Ngati and Others v The
People 59 and reaffirmed in Lipimile and Another v Mpulungu Harbour Management 60 . However,
Zambian Courts have no jurisdiction for crimes committed by foreigners entirely outside Zambia.61
STARE DECISIS
The principle of stare decisis et non quieta movere means to abide by, or adhere to, decided cases.62 It
is the policy of courts to stand by precedent and not to disturb settled law.63 The Supreme Court of
56
see also section 11 on hearing offences under by-laws and section 12 on administering customary laws
section 15
58
(1984) ZR 62
59
(2003) ZR 100
60
(2008) 1 ZR 2
61
The People v Roxburgh (1972) ZR 31
62
Nolan, J.R. and Nolan-Haley, J.M. (1990).Black’s Law Dictionary, 6th Edn., Minnesota: West Publishing
Co.p1406
63
id
57
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Zambia in Match Corporation Limited v Development Bank of Zambia and the Attorney-General64
stated that:
The principle of stare decisis was considered in Paton v Attorney General
and Others (1968) ZR 185 and again in Kasote v The People (1977) ZR 75
the Supreme Court not only affirmed the importance of this principle to a
hierarchical system of courts whereby lower courts are bound to follow the
latest of any superior court’s decision on point.
Courts are required to stand by their ratio decidendi in past cases in to ensure consistency and certainty
and should not be readily changeable at a given time what the law is on a given issue. It is in this regard
that pronouncements of judges of the superior courts become law.
CHIEF JUSTICE AS A PUISINE JUDGE
Article 133 (1) of the Constitution provides, in part, that:
There is established the High Court which consists of(a) the Chief Justice, as an ex-officio judge; and
(b) such number of judges as prescribed.
Thus, by this provision, the Chief Justice by virtue of his or her office, is a puisine judge and can descend
to hear and determine matters in the High Court. Once the Chief Justice descends, he or she sits as a
high court judge with powers of the high court judge and his or her decisions can be reversed by the
higher courts. The following are cases in which the Chief Justice descended as judge of the high court:







64
Bonaventure Bweupe v Attorney-General, Zambia Publishing House Company Limited and
Times of Zambia (1984) ZR 21- Silungwe, CJ descended as High Court to hear a matter in
which the plaintiff, a high court judge, was a litigant in his own court.
Edward Jack Shamwana v Levy Mwanawasa (1993-1994) ZR 149 -Ngulube, CJ descended as
high court judge as the two litigants were high profile personalities, the defendant being
republican vice president and both being of the rank and status of state counsel.
Michael Chilufya Sata v Post Newspapers Limited and Another (1993-1994) ZR 106-Ngulube,
CJ descended to sit as a puisine judge due to high profile litigants involving two cabinet
ministers.
Nkumbula v Attorney-General (1972) ZR 111-Doyle, CJ-descended as high court judge due to
the important nature of the case where the petitioner sought to block the changes to the 1964
constitution which brought up the draconian one party constitution of 1973. In the subsequent
case of Nkumbula v Attorney-General (1972) ZR 204 the decision of Doyle, CJ was appealed
against in the higher courts.
Kachasu v Attorney-General (1967) ZR 145-Blagden, CJ descended as high court to hear and
determine a matter of high constitutional importance.
The People v Roxburg (1972) ZR 31-Doyle CJ descended.
The People v Masissani (1977) ZR 31-CJ descended.
(1999) ZR 13 (S.C)
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CAUSE OF ACTION
The five most important things to consider when a lawyer is in receipt of instructions are:
a)
b)
c)
d)
Identify the cause of action-is it contract, tort, etc?
Identify if the cause of action-is still alive or stale or statute barred?
Identify the forum-is it constitutional court or high court or subordinate court?
Identify the parties-what is the capacity and legal status of the parties, is it a minor or
partnership or limited company?
e) Identify the mode of commencement-is by petition or originating notice of motion?
A cause of action is the fact or facts which give a person a right to judicial redress or relief against
another.65 A cause of action is, as per Diplock, LJ in Letang v Cooper66:
Simply a factual situation the existence of which entitles one person to obtain
from the court a remedy against another person.
Lord Esher, MR in describing a cause of action opined that:
Every fact which it would be necessary for the plaintiff to prove, if traversed,
in order to support his right to the judgement of the court. It does not comprise
every piece of evidence which is necessary to prove each fact, but every fact
which is necessary to be proved.67
The following cases help in the definition of cause of action:







William David Carlisle Wise v E.F. Hervey Limited (1985) ZR 179
Manharial Hatji Patel v Surma Stationers Limited and Others (2009) ZR 112
Acropolis Bakery Limited v ZCCM Limited (1985) ZR 232
Michael Chilufya Sata v Zambia Bottlers Limited, SCZ Judgement No. 1 of 2003
Godfrey Miyanda v Attorney-General, SCZ Judgement No. 9 of 2009
Continental Restaurant and Casino Limited v Arida Mercy Chulu, SCZ Judgement No. 28 of
2000
Zambian Breweries Plc v Reuben Mwanza, SCZ Judgment No.39 of 2000
LIMITATION OF ACTIONS
The lawyer has a duty to ensure that the action by his prospective client is not statute barred, that is stale
by lapse of time or moot.68 This can be used by the other party as a defence as the resultant effect is
that statute barred actions cannot be heard as the court is in want of jurisdiction.69
Black’s Law Dictionary at p.221; see Order 15/1/2/A of the RSC (White Book)
(1965) 1 QB 232
67
Coburn v College (1897) 1 QB 702, 707
68
Wynter Kabimba (Suing as Secretary General of the Patriotic Front) v Zambia Revenue Authority and
Another; Section 5 of the Intestate Succession Act, Chapter 59 of the Laws of Zambia
69
Wynter Kabimba case
65
66
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In Zambia limitations of actions are governed inter alia by the Limitation Act of 1939 which extends to
Zambia by the British Acts Extension Act, Chapter 10 of the Laws of Zambia and the English Law
(Extension of Application) Act, Chapter 11 of the Laws of Zambia. This Act is read together with the
Law Reform (Limitation of Actions, Etc) Act, Chapter 72 of the Laws of Zambia.
The Law Reform (Limitation of Actions, Etc) Act, Chapter 72 of the Laws of Zambia has made
amendments to the Limitation Act of 1939 and by section 3 (2) (a) of the amendment Act claims of
negligence resulting in personal injury must be prosecuted within years from date of occurrence.
The effect of this provision is that all actions outside the time-limits become stale and the defence under
statute must be raised to prevent the cause from being determined. The courts are compelled to dismiss
the action as they do not have power to extend the limitation imposed by statute.70 The issue of time
limitation can be raised at any time even if it was not pleaded71 but if the defendant decides to defend
the case on merit he will not be permitted to fall back upon on limitation as a second defence at the end
of trial when it appears that he is likely to lose on the merits.72
PARTIES
The learned Mr Justice Matibini73 defines a party as:
A person, who on record of the court has commenced a proceeding, has been
served with legal process or has been joined to a cause of action by order of
the court. As a general rule, both natural persons and corporate persons (for
example companies and corporations) have the capacity to sue and be sued.
The following people have capacity to sue:74





Adult individual above the age of 18 can sue and be sued in own name.
A minor, that is one below 18, can only sue through a next friend and defends through a
guardian ad litem.75
Non Compos Mentis, that is mentally disturbed persons, bring actions by and through guardian
ad litem.76
Seriously ill or incapacitated persons sue by and through a next friend.77
Incorporated companies78 and bodies corporate79 can sue and be sued in own name.
70
Zambia Consolidated Copper Mines Ltd v Joseph David Chileshe, SCZ Judgement No. 21 of 2002; Royal
Trading Company Limited v Zambia Revenue Authority (2000) ZR 1 (SC)
71
Admark Limited v Zambia Revenue Authority (2006) ZR 43
72
Southern Cross Motors Limited (formerly Marounuchi Motors Limited) v City Express Service Limited, Appeal
No. 198 of 2006
73
Zambian Civil Procedure at p.47
74
for a detailed discussion on parties see Zambian Criminal Procedure by Patrick Matibini on pp.47-137
75
Kachasu v Attorney-General (1967) ZR 145 (HC); Belinda Kamanga (Suing as Mother on behalf of Kasubika
Katete (Minor) v Chanda Bwali Katete (Sued in her Capacity as Administrator of the Late Jonas Katete) (2011) 2
ZR 23
76
Order 80 Rule 2 of the RSC, White Book, 1999 Edition
77
Edmond Richard Hill (Suing by Thomas Denning Harcoat Catchpole his next friend) v Zalbro Transport
Limited and Another (1970) ZR 46
78
Workers Development Corporation (ZCTU) Limited v Davy Mkandawire (1999) ZR 132 (SC)
79
Section 2of the Land (Perpetual Succession) Act, Chapter 136 of the laws of Zambia and section 14 of the
Cooperatives Act No. 20 of 1998
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





Company under receivership sue by and through a receiver who is an agent of the company as
that company has no independent locus standi independent of its receiver.80
Company under liquidation can only be sued with leave of the court.81
Partnerships sue and can be sued as a firm.82
Political Parties and other associations of persons sue and sued as a group or on behalf.83
Deceased persons sue and get sued through personal representatives.84
Government departments sue and get sued through the Attorney-General.85
The issue of parties is promptly dealt with in this jurisdiction by Order 14 of the High Court Rules86
and Order 15 of the Supreme Court Practice Rules.87 In the case of Musa Ahmed Adam Yusuf v Mahtani
Group of Companies and Others 88 it was held that the plaintiff should see that the Defendant is
described in the writ by his proper name.
SERVICE OF PROCESS
Once one files court process there is need to serve that process on the other party for them to have notice
of the claim against them and for them to either admit or defend that claim with full knowledge. 89 In
Chimanga Changa Limited v Chipango Ngombe,90 the Supreme Court held that the rules require that
parties to a dispute be served with any court process, including a notice of hearing, so that they can
react to the process in accordance with the rules of natural justice that require one to be heard before he
or she is condemned. Once served, there is need for proof of service, usually through an affidavit of
service.91
Order 10 of the High Court Rules and Order 7 of the Subordinate Court Rules provide for service of
process. Generally, the following are modes of service of process under these Orders:



Personal Service
Substituted Service
Service by Post92
Magnum Zambia Limited v Basit Quadri (Receiver/Manager) and Grindlay’s Bank International (Z) Limited
(1981) ZR 141 (HC); Contrast with Avalon Motors Limited (In Receivership) v Bernard Leigh Gadsden and Motor
City Limited (1998) S.J. 26 (SC) when receiver is wrongdoer.
81
Emmanuel Nkhatia Chuumba v Union Bank (Z) Limited (In Liquidation) SJ 7 OF 2003; Lusaka Engineering
Company Limited v Chama and Others (2006) ZR 110
82
Order 14 of the High Court Rules
83
Nkumbula and Kapwepwe v UNIP (1975) ZR 388; Secretary General of UNIP v Elias Marko Chipimo(1983)ZR
125; National Milling Company Limited v Vashee (Suing as Chairman of ZNFU) (2000) ZR 98; Dr. Ludwig
Sondashi v Brig. Gen. Miyanda , MP (Sued as National Secretary of the MMD) (1995) SJ 1 (SC); Nkhoma (F.X) v
G. Miyanda-National Secretary of the MMD (Sued on his behalf and on behalf of the MMD) (1995) SJ (SC); and
Zambia Democratic Congress v Attorney-General Appeal No. 37 of 1999
84
Isaac Tantameni Chibulu Chali (Executor of the Will of the late Mwala Mwala) v Liseli Mwala (Single Woman)
SCZ Judgement No. 6 of 1997
85
State Proceedings Act, Chapter 71 of the laws of Zambia
86
Chapter 27 of the Laws of Zambia
87
White Book, 1999 Edition
88
(2011) 1 ZR 278
89
see Zambian Civil Procedure by Patrick Matibini on pp. 245-260
90
(2010) 1 ZR 208 (SC)
91
ibid
92
Nayee v Lufungulo (1980) ZR 47 (SC)
80
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
Service out of jurisdiction93
The case of Leopold Walford v Unifreight94 provided the detailed steps to be undertaken for a writ to
be served outside jurisdiction:



Step 1- the writ should be prepared.
Step 2-an application to issue writ out of jurisdiction must be made to the court, with the writ
attached to the application.
Step 3-only after the court’s leave has been obtained should the writ be issued.
ACTIVITIES
1. Is there any circumstance in which the Constitutional Court may be seized with jurisdiction to
hear a constitutional matter arising from civil proceedings?
2. What is the relevance for the requirement of leave before service outside jurisdiction can be
effected?
93
Leopold Walford (Z) Limited v Unifreight (1985) ZR 203; Order 10, Rules 15 and 16 of the HCR; Order 10 Rule
6 (7) (1) of the RSC provides that no writ which, or notice of which, is to be served out of the jurisdiction shall
be served without the leave of the court.
94
supra
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SUMMARY
This unit has looked at various issues as they relate to both criminal and civil procedure. We have
looked at among others the sources of civil and criminal procedural law in Zambia as well as the
hierarchy of courts. We also looked at the concept of jurisdiction as well as the principle of stare
decisis. We finally looked at the service of process but before that we looked at parties and capacity
to sue.
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UNIT TWO
MODE OF COMMENCEMENT IN THE HIGH COURT
2.1 INTRODUCTION
The law has provided for various mode of commencement of proceedings in the high court. A
lawyer, and indeed, litigants are not expected to just choose which mode to commence a suit
against another as the law has dictated, for example, what actions are to start by writ, petition or appeal
as the case may be. In Chikuta v Chipata Rural Council 95 the court ruled that irregularity of
commencement renders the court with no jurisdiction to grant the remedies sought. And in BP Zambia
Plc v Zambia Competition Commission and Others96 it was held that the mode of commencement of
any action depends on the mode provided by the relevant statute.
2.2 AIM
The aim of this unit is to introduce the various modes of commencement in the high court
to students.
2.3 OBJECTIVES
By the end of this unit you should be able to do the following:
i.
ii.
Distinguish the various modes of commencement in the High Court.
Demonstrate an understanding of the applicability of the various modes of
commencement.
2.4 TIME REQUIRED
Minimum amount of time on the unit is 3 hours.
2.5 REFLECTION
95
96
supra
SCZ Judgement No. 22 of 2011
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Think of how your client will react after your case is thrown out by the High Court
for commencing using a wrong mode.
WRIT OF SUMMONS
In many cases it is necessary for the plaintiff, even before he or she issues a writ, to consider certain
details such as: Parties, Joinder of actions and Jurisdiction of the Court.97 To make a false start in
any of these respects will cause him or her trouble, expense and delay at some stage or other of the
action.98 Order 6 of the High Court Rules provides for Writ of Summons and Originating Process.
The following are critical issues to be recognised by the lawyer as per above order:








Every action in the High Court shall be commenced by a writ of summons accompanied by
a statement of claim.
There must be set out at the head of every writ the names of every plaintiff and every
defendant whom it is proposed to make parties.
It should have the forum and jurisdiction.
It should be in the current year, for example, 2018/HP/……..
Shall bear the date on the day on which it is issued, and shall be tested in the name of the
Chief Justice.
Every writ shall run in the name of the President as per section 15 of the High Court Act
failure to which it is incompetent.
It shall have a lifespan of twelve calendar months as per Order 9 Rule 1.
All writs must be endorsed with name of advocates where plaintiff sues using lawyers as
per Order 7 of the High Court Rules.99
It is important to note that one has no choice to pick whether he or she wants to commence using a writ
or origination notice of motion or any other mode but the relevant statute will guide on the matter. 100
Failure to use the right mode of commencement robs the court of the jurisdiction to hear and determine
the matter. In New Plast Industries v The Commissioner of Lands and Attorney-General101 it was held
that:
It is not entirely correct that the mode of commencement of any action largely
depends on the relief sought. The correct position is that the mode of
commencement of any action is generally provided for by the relevant statute.
And in the Chikuta case it was held, inter alia, that:
The irregularity of the mode of commencement renders the court with no
jurisdiction to grant the remedies sought.
ORIGINATING SUMMONS
Order 6 Rule 1(2) provides that:
97
Odgers, W.B. (1897). The Principles of Pleading, Practice and Procedure in Civil Actions in the High Court of
Justice at p.14
98
ibid
99
in the case of Leopold Walford it was held that failure to endorse a writ makes it irregular and defective.
100
New Plast Industries v The Commissioner of Lands and Attorney-General (2001) ZR 51; Chikuta case supra
and BP Zambia Plc case supra
101
supra
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Any other matter which under any written law or these Rules may be disposed of in chambers shall be
commenced by an Originating Summons.
Order 30 Rule 11 provides a detailed list of matters that may be dealt with in chambers. In construing
this provision, the Supreme Court in the case of Rural Development Corporation Limited v Bank of
Credit and Commerce (Zambia) Limited102 held that:
In addition, business stipulated under any other rule or by statute or by the
law and practice for the time being observed in England and applicable to
Zambia, may also be disposed of in chambers and by implication may be
commenced by originating summons.103
ORIGINATING NOTICE OF MOTION
This is normally provided for by relevant statute.104 The learned Hon. Justice Dr. Matibini105 opines
that:
Any application to be made to the court, in respect of which no special
procedure has been provided by any written law or by the High Court Rules,
shall be commenced by an originating notice of motion. Therefore, where a
statute provides that proceedings may be commenced by application, but does
not specifically provide the procedure, an originating notice of motion should
be used.
See provisions of the Rent Act, Chapter 206 of the Laws of Zambia106 and the Landlord and Tenants
(Business Premises) Act, Chapter 193 of the Laws of Zambia107 on the use of originating motion as
provided by relevant statute.108
PETITION
A petition is another mode of commencement of actions in the High Court and can only be used in cases
where it is required by written law or rules of the court.109 It is specifically provided for by the following
statutes:





Matters before the Constitutional Court as per Order 4 (1) (1) of the Constitutional Court Rules.
Election petitions as per Part IX of the Electoral Process Act No.35 of 2016.
Protection of fundamental rights and freedoms under Article 28 (7) of Constitution of Zambia
as per The Protection of Fundamental Rights Rules, Statutory Instrument No. 156 of 1969.
Section 13 of the Referendum Act, Chapter 14 of the Laws of Zambia.
Winding up of companies.110
APPEAL
This is another mode of commencement as opposed to appeals as generally understood, that is, when
is dissatisfied with the decision of a lower court or tribunal. This is different as it is a mode of
102
(1987) ZR 35 (SC)
Zambian Civil Procedure, Volume 1 at p.150
104
Apollo Refrigeration Services Limited v Farmers’ House Limited (1985) ZR 182; Ready Mix Limited v
Furncraft Enterprises Limited, SCZ Judgement No. 21 of 2014
105
Zambian Civil Procedure, Volume 1 at p.151
106
Rule 3 of the Rent Rules, Statutory Instrument No. 30 of 1973
107
Rule 3 of the Landlord and Tenants (Business Premises) Rules, Statutory Instrument No. 31 of 1973
108
see also Order 4 (3) of the Constitutional Court Rules
109
Matildah Mutale v Emmanuel Munaile (2007) ZR 118
110
Lusaka Meat Suppliers Limited and Others v Szeftez (1974) ZR 28
103
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commencement usually provided for by statute. Section 87 of the Lands and Deeds Registry Act,
Chapter 185 of the Laws of Zambia111 is an example of how this mode is used.
ACTIVITIES
1. Is one at liberty to choose what mode to commence court proceedings? If yes, why and if no,
argue as well with authorities.
2. Identify other circumstances in which an appeal may be used as a mode of commencement.
SUMMARY
This unit has looked at various modes of commencement in the High Court. We saw that
it is important to adhere to requirements under statute and rules as regards mode of
commencement as failure to do are fatal as it robs the court of jurisdiction.
111
New Plast Industries case supra
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UNIT THREE
PLEADINGS
3.1 INTRODUCTION
Pleadings have been used in practice from the earliest times of the legal profession. 112
Pleadings must contain allegations that are material and certain.113 Pleadings are the parties’
written statements, each setting out their detailed contentions and claims and counterclaims, so that the
opposite party may know what case he has to meet or what the reply to his case is. 114The function of
pleadings is to give a fair notice of the case to be met and to define issues to be adjudicated upon to
determine the matters in dispute between the parties.115 These help the court by defining the bounds of
actions116 and thus, it is trite law that matters that a party wishes to rely upon in proving or resisting a
claim must be pleaded.117118 In this Unit we shall concentrate on statement of claim, defence, reply,
counter-claim and defence to counter-claim.
3.2 AIM
The aim of this unit is to introduce students to the various forms of pleadings in practice.
3.3 OBJECTIVES
At the end of this unit you should be able to do the following:



Identify and describe the various forms of pleadings.
Explain the stages at which all discussed here pleadings apply.
Discuss the formalities, functions and principles of pleadings.
3.4 TIME REQUIRED
Minimum amount of time on the unit is 3 hours.
112
Odgers Principles of Pleading at p.8
ibid at p.11
114
Zambian Civil Procedure at p.565
115
Anderson Kambela Mazoka and Others v Levy Patrick Mwanawasa and Others (2005) ZR 138 (SC); Admark
Limited v Zambia Revenue Authority (2006) ZR 43 (SC)
116
Lyons Brooke Bond (Zambia) Limited v Zambia Tanzania Road Services Limited (1977) ZR 317 (HC)
117
Undi Phiri v Bank of Zambia, SCZ Judgement No. 21 of 2007
118
For a detailed analysis on the functions of pleadings see Odgers Principles of Pleadings at pp.6-8
113
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3.5 REFLECTION
Think of how you would defend your client without knowledge of what other party
is claiming and seeking.
3.6 PLEADINGS GENERALLY 119
a) Functions of Pleadings
The functions of pleadings can be summarised as follows:






the parties know exactly the matters to the dispute;
the parties know exactly what facts to prove at trial;
the parties know the appropriate mode of commencement;
parties prepare defence to claim;
prevent re-litigation as facts will be on record; and
preventing parties from springing up surprise trial.
b) Formalities of Pleadings
The following are issues that a pleading must contain:






every pleading in an action must bear on its cover page the year in which writ was issued;
every pleading must bear title of the action;
every pleading must have description of the pleading;
every pleading must be divided into paragraphs consecutively numbered;
every pleading must be endorsed by advocate where party sues by advocates and if defends in
person put name and address of the person;
every pleading must be signed by advocate if settled by advocate or if defends in person by that
party.
c) Principles of Pleadings120
The following are principles on which pleadings rest and must always be adhered to when drafting
pleadings:




parties must plead material facts only;
parties must plead facts, not evidence;
parties must plead facts, not law; and
pleadings must be concise, unambiguous and in simple language.
119
generally adapted from Zambian Civil Procedure at pp.565-570 and Odgers on Principles of Pleadings at
pp.6-8
120
see also Order 18, Rule 7 of the RSC
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3.7 STATEMENT OF CLAIM
A statement of claim is a pleading that contains statements which explain the claimant’s claims as
against another.121 A statement of claim should state the material facts upon which the plaintiff relies
and then claim the relief he or she desires.122 A statement of claim, and indeed any other pleading, that
contains evidence is scandalous and an embarrassing pleading. 123
The following are some of the rules that apply to Statement of Claim:








only state facts and not evidence;
carefully consider the parties to the claim;
only include causes of action which existed at the date of the writ;
specifically state for the relief claimed;
should have separate and distinct paragraphs consecutively numbered;
dates, sums and other numbers should be expressed in figures and not words;
it must be dated; and
it must be indorsed.124
3.8 DEFENCE
A defence is that which is offered and alleged by the party proceeded against in an action or suit, as a
reason in law or fact why the plaintiff should not recover or establish what he seeks. 125 It is that which
is put forward to diminish the plaintiff’s cause of action or defeat recovery.126
Odgers guides that:
The defendant’s counsel, before drafting the Defence, should always carefully
consider the Statement of Claim, and the way in which the action is shaped
against his client. Is any cause of action shown at all? Is the only cause of
action shown frivolous and vexatious? If so, he may think it right to apply to
strike out the Statement of Claim.127
There are two basic principles that must be adhered to when dealing with a Defence. First, denials must
be specific as it shall not be sufficient for a defendant, in his or her defence, to deny generally the
grounds alleged by the Statement of Claim, but each party must deal specifically with each allegation
of fact of which he or she does not admit the truth, except damages.128 Second, he or she must state in
his Defence every material fact on which he or she proposes to rely at his or her trial.129
3.9 REPLY
In its general sense, a reply is the plaintiff’s answer to the defendant’s sett-off or counterclaim.130 Thus,
if a claimant wishes to respond to facts raised in the defence he or she must do so by way of a Reply.131
121
see Order 18/15 on rules governing Statement of Claim
Odgers at p.170
123
Hanmer v Flight, 24 W.R. 346; 35 L.T. 127
124
see generally Odgers at pp.170-191 and Order 18/14/1 of the RSC
125
Black’s Law Dictionary at p.419
126
id
127
Odgers at p.192
128
ibid at p.194
129
ibid at p.193
130
Black’s Law Dictionary at p.1300
131
O’Hare, J. and Browne, K. (2005). O’Hare and Browne Civil Litigation, 12 th Edn., London: Sweet & Maxwell.
pp.130-131
122
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3.10 COUNTER-CLAIM
If the defendant wishes to bring an action against the claimant it is usually best to do it by way of
counterclaim. 132 The counterclaim should form part of the defence. When a counterclaim has been
raised, the claimant must file a defence as otherwise default judgement is usually available.133 In order
to enter default judgement the defendant has to prove the counterclaim was served and where the
defendant effected service of the document he or she must file a certificate of service.134
3.11 DEFENCE TO COUNTER-CLAIM
As alluded to above, a defence to counterclaim is entered if the there is a counterclaim entered. Where
a counterclaim has been pleaded, a Reply thereto shall be subject to the rules applicable to Statements
of Defence.135
3.12 ACTIVITIES
1. Discuss the formalities, functions and principles of pleadings.
2. Explain the main contents of a writ of summons and a statement of claim.
3.12 SUMMARY
This unit has looked at pleadings, the formalities, functions and principles guiding the
drafting of pleadings. We have also streamlined to look at specific pleadings namely:
statement of claim, defence, reply, counterclaim and defence to counterclaim and the rules
guiding them.
132
ibid at p.130
id
134
id
135
Odgers at p.228
133
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UNIT FOUR
SUBORDINATE COURT CIVIL PROCEDURE
4.1 INTRODUCTION
The law has provided for procedure and practice in all courts in Zambia including the
subordinate court. This procedure guides courts and litigants on a host of issues among others
mode of commencement, appeals, judgement, interlocutory applications as well as enforcement orders.
4.2 AIM
The aim of this unit is to enlighten students with the practice and procedure in the
subordinate court.
4.3 OBJECTIVES
By the end of this unit you should be able to do the following:
i.
ii.
iii.
iv.
v.
Discuss the procedure and practice obtaining in the Subordinate Court.
Distinguish the various modes of commencement in the Subordinate Court.
Demonstrate an understanding of the various interlocutory applications and
enforcement orders available to litigants in the same court.
Explain the nature of judgments delivered by the court.
Elaborate the appeal procedures that guide appeals from the court.
4.4 TIME REQUIRED
Minimum amount of time on the unit is 3 hours.
4.5 REFLECTION
Think of how court business would go on without rules to guide procedure and
practice.
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4.6 MODE OF COMMENCEMENT OF SUITS
As discussed under Unit 2, the mode of commencement is usually provided for by statute and rules of
a particular court. The Chikuta case is instructive in as far as adhering to a particular mode prescribed
by statute is concerned. Failure to adhere to prescribed mode renders the proceedings defective and
robs the court of its jurisdiction to provide the reliefs sought. Parties thus, have no choice by to abide
by the mode of commencement as prescribed by statute or the rules136, in this case, the Subordinate
Court Rules (SCR).137
There are two main ways of commencement of suits in the subordinate court that is by way of writ of
summons and default writ of summons. However, these are not the only ones as one can also commence
by originating notice of motion138 and originating summons. Petitions are also used in the subordinate
court but restricted for example to adoption matters and not divorce and election petitions.
The two modes are discussed below:
a) Writ of Summons
All suits in the subordinate court shall be commenced by way of writ of summons except where
otherwise the statute or rules have provided.139 The following are pertinent details that should be found
in a writ:140






the full names and address of the plaintiff;
the name and address of the plaintiff’s legal representative, where appropriate;
the full names and address of the defendant as far as is known;
the fact that the plaintiff or defendant is a married woman, where this is the case;
the fact that the plaintiff is suing or the defendant is being sued in a representative capacity;
and
the nature of the plaintiff’s claim.
The writ of summons should never be accompanied by a statement of claim in the subordinate court as
opposed to the practice in the High Court.141 The court, if need arises, will direct that a statement of cl
aim be prepared and filed into court. The Writ should also have an endorsement of the relief sought b
y the plaintiff in a summary form, for example, damages for negligence or defamation, interest and co
sts. Otherwise, all the rules relating to the writ of summons as discussed under Unit 2 apply here as w
ell.
b) Default Writ of Summons
This writ is usually used for claims in respect of a debt or liquidated damages. 142 It is must be
accompanied by an Affidavit Verifying Debt and must attach to the summons a form of admission
136
Polythene Products (Zambia) Limited v Cyclone Hardware Construction Limited and Another (2012) 3 ZR
396
137
Chapter 28 of the Laws of Zambia
138
Chamber business as discussed under Unit 2
139
Order 6 Rule 1
140
Zambian Civil Procedure at p.143
141
Order 18 Rule 1 of the SCR provides that detailed pleadings can only be filed in court with leave of the court
142
id
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defence and counterclaim.143 This affidavit is sworn by the plaintiff and not counsel representing the
plaintiff.
4.7 INTERLOCUTORY PROCEEDINGS144
These are proceedings incidental to the settlement of the principle dispute between the parties and most
are made between the commencement of the action and the judgment. The most common interlocutory
proceedings are:
(a) Summons for Enlargement of Time (Order 2 Rule 2 of the SCR)
(b) Summons for the Consolidation of Causes of Action (Order 3 Rule 3 of the SCR)
(c) Summons for Leave to Serve by Way of Substituted Service (Order 7 Rule 5 of the SCR)
(d) Summons for Leave to Serve Writ Outside Zambia (Order 7 Rule 13)
(e) Misjoinder and Nonjoinder (Order 8 Rule 5)
(f) Third Party Proceedings (Order 12)
(g) Amendment of Proceedings (Order 15 Rule 1)
(h) Alteration of Parties (Order 11 Rule 1)
(i) Arrest of Absconding Debtor (Order 21)145
(j) Interim attachment of Property (Order 22)
(k) Interim Injunctions (Order 23)
These are usually ex parte applications which must be accompanied by an Affidavit in Support. Ex
parte implying that they are heard in the absence of the other party or intended party.
4.8 ENFORCEMENT ORDERS
Obtaining a judgement without it being enforced would render the proceedings a mere academic
exercise. The same is true if litigants would be allowed to freely interfere with the proceedings hence
pervert the course of justice. The following are the relevant enforcement orders available to litigants:
(a) Order for Interim Injunction (Order 23 of the SCR)
(b) Order for Attachment of Property (Order 22)146
(c) Garnishee Order
(d) Order for Stay of Execution (Order 41)
4.9 APPEALS147
An appeal against a judgment in the subordinate court lies with the High Court as provided under the
High Court Rules. An appeal to the High Court is done by way of a Notice of Appeal filed in the
subordinate court. The clerk of court must sign the Notice and so must the appellant or his advocate. In
the Notice, the appellant indicates the grounds upon which he is appealing against the judgment. Such
appeal does not operate as a stay of execution of the judgment.
Upon filing the Notice of Appeal, the trial magistrate shall endorse or make an order for security for
costs to be paid into court by the appellant. The Law does not provide for a uniform figure or amount.
143
id
adapted from lecture notes by Mr. Remmy Mainza in Subordinate Court Civil Procedure at ZIALE in the
2017/18 intake
145
see also section 10 of the Debtors Act, Chapter 77 of the laws of Zambia
146
National Airports Corporation Limited v Mines Air Services Limited (t/a Zambia Airways) (2011) 2 ZR 180
discusses conditions for granting this order
147
Mainza notes
144
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It is up to the trial court as to how much should be paid into court as security.148 If you need to stay
judgment pending the appeal, the appellant must file an ex parte summons for a stay of execution of
judgment supported by an affidavit and also an ex parte order to be signed by the magistrate (and a
certificate of urgency).149
If the appeal is against a final judgment, the Notice of Appeal is to be filed within 30 days of the date
of the judgment. If the appeal is against a ruling made in chambers or on any interlocutory application
before the conclusion of the matter, any party aggrieved by such a ruling is supposed to file a Notice of
Appeal within 14 days of the date of the ruling. If the 30 or 14 days (whichever is appropriate) has
expired or is about to, counsel can apply for an extension of time within which to file the Notice of
Appeal. This is done by way of a summons and supporting affidavit under Order 2 Rule 2 (enlargement
or abridgement of time).150
4.10 ACTIVITIES
1. Discuss the use of an interlocutory application? How does it come about?
2. Is a petition a permissible mode of commencement in the subordinate court?
4.11 SUMMARY
This unit has looked at civil procedure in the subordinate court by analysing a mode of
commencement of suits where we saw that the most used is the writ of summons and
default writ of summons. We also looked at issues surrounding interlocutory proceedings
and enforcement orders.
148
id
id
150
id
149
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UNIT FIVE
CRIMINAL JUSTICE INSTITUTIONS IN ZAMBIA
5.1 INTRODUCTION
The legislature has enacted laws which have created and established law enforcement agencies
for enforcing the Penal Code and associated laws in the country. These criminal justice
institutions include the Zambia Police Service, Anti-Corruption Commission and Drug Enforcement
Commission among others.
5.2 AIM
The aim of this unit is to introduce students to relevant criminal justice institutions in the
country.
5.3 OBJECTIVES
At the end of this unit you should be able to do the following:



Identify criminal justice institutions available in Zambia.
Discuss the legal framework on which the institutions are established.
Explain the roles of those criminal justice institutions.
5.4 TIME REQUIRED
Minimum amount of time on the unit is 3 hours.
5.5 REFLECTION
Think of the country without any institution to investigate and prosecute crime.
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5.6NATIONAL PROSECUTIONS AUTHORITY
The National Prosecutions Authority (NPA) is the vanguard of criminal prosecutions in Zambia. It is
established by the National Prosecutions Authority Act No. 34 of 2010. The main function of the NPA
as provided by the Act is to oversee criminal prosecutions in the country under the leadership of the
Director of Public Prosecutions (DPP).
5.7 ZAMBIA POLICE SERVICE
The Zambia Police Service is created by Article 193 (1) (a) of the Constitution of Zambia (Amendment)
Act No.2 0f 2016. The functions of the Zambia Police Service are found in sub-article (2) which states
that:
The Zambia Police Service shall –
(a) protect life and property;
(b) preserve peace and maintain law and order;
(c) ensure the security and safety of the people;
(d) detect and prevent crime;
(e) uphold the Bill of Rights;
(f) foster and promote good relationships with the Defence Force, other national
security services and members of society; and
(g) perform functions as prescribed.
From the foregoing, it can be seen that the responsibility and accountability of the police is
constitutional in nature whose sole duty can be summarised as to protect and promote human rights.151
The powers and functions of the Police as regards law enforcement are found in the Zambia Police
Service Act,152 Penal Code Act,153 Criminal Procedure Act,154 Anti-Corruption Act,155 Prohibition and
Prevention of Money Laundering Act,156 Immigration and Deportation Act157 and the Narcotic Drugs
and Psychotropic Substances Act158 among others. Thus, the police have power to arrest, charge, and
search, seize, detain and investigate crime as can be discerned from the above statutes. The case of Abel
Charles Mwalimu, ‘Police, State and Security Forces, and Human Rights in Nigeria and Zambia: Dynamic
Perspectives in Comparative Constitutionalism; Third World Legal Studies: Vol. 9, Art. 4. (1990).
152
Chapter 107 of the Laws of Zambia.
153
Chapter 87 of the Laws of Zambia.
154
Chapter 88 of the Laws of Zambia.
155
Act No. 3 of 2012.
156
Act No. 14 of 2001.
157
Act No. 18 2010.
158
Chapter 196 of the Laws of Zambia
151
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Banda v The People159 confirms these important powers that the police exercise in its core duty of law
enforcement. The police are mandated to prevent and investigate crime 160 , arrest and detain those
suspected of having committed crime, with or without a warrant,161 search any premises162 and detain
persons and property163 among others.
The enforcement powers of the police are blanket which almost permeates all institutions of law
enforcement and prosecution as all depend on the police for investigations and arrest. Thus the police
wield enormous and gigantic powers in criminal investigations and prosecutions as they can undertake
almost all functions of other specialised wings in the quest for maintaining law and order, peace and
security, prevent and deter crime among other constitutional mandates.
5.8 ANTI-CORRUPTION COMMISSION
The Anti-Corruption Commission (ACC) is established by Article 235 (a) of the Constitution of Zambia
(Amendment) Act No.2 of 2016. However, the principal Act which operationalise the Commission is
Anti-Corruption Act No.3 of 2012 which also outlines the mandate of the institution.
The Commission has limited jurisdiction to prosecute offences relating to corruption practices as
defined by the enabling Act. Meanwhile, prosecutors in the ACC are appointed in line with Section 86
of the Criminal Procedure Code Act, Chapter 88 of the Laws of Zambia. In the same vein, no offence
under the Anti-Corruption Act can be prosecuted without the consent of the DPP.164
5.9 FINANCIAL INTELLIGENCE CENTRE
The Financial Intelligence Centre (FIC) is created by the Financial Intelligence Centre Act (FICA) No.
46 of 2010.165 Its main mandate is, inter alia, to disseminate information to law enforcement agencies
where there are reasonable grounds to suspect money laundering or financing of terrorism or
proliferation activities and to provide information, advice and assistance to law enforcement agencies
in furtherance of an investigation.166
From the reading of section 5 of the FICA, and indeed other provisions in the Act, it appears the FIC
only has investigative powers but has no prosecutorial powers. Its job seems to be to gather evidence
and turn it over to other agencies for possible prosecution.
5.10 DRUG ENFORCEMENT COMMISSION
The Drug Enforcement Commission (DEC) which is provided by Article 235 (b) of the Constitution of
Zambia (Amendment) Act No. 2 of 2016 was established in 1989 by Statutory Instrument No. 87 of
1989. The Narcotics Drugs and Psychotropic Substances Act, 1996 and the Prohibition and Prevention
159
(1986) ZR 105
Ss.61-64 of CPC
161
S.18 and 26 of the CPC
162
S.119 of CPC
163
S.23 of CPC
164
S.64 of the Anti-Corruption Act No. 3 of 2012
165
as amended by Act No. 4 of 2016
166
ibid section 5 (2) (b) and (d)
160
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of Money Laundering Act No. 14 of 2001167 are the main pieces of legislation that gives the commission
its mandate. The same procedure of appointing of prosecutors that applies to the ACC is applicable
here. Powers of arrest are drawn from the Criminal Procedure Code and consent of the DPP is a requisite
to any prosecution of offences under these statutes.
5.11 IMMIGRATION DEPARTMENT
The Immigration and Deportation Act No. 18 of 2010 establishes and provides functions for the
Department of Immigration in Zambia. The main mandate of the Department is to investigate and
prosecute offences relating to migration and immigration, prohibited and illegal immigrants as well as
deportation and removal from Zambia.
Prosecutors under the Immigration Department are gazetted by the DPP and generally operate under
the direction of the DPP in prosecuting all offences under the Immigration and Deportation Act in line
with the relevant legislation on appointment of prosecutors as discussed previously.
5.12 ROAD TRANSPORT AND SAFETY AGENCY
For the purposes of criminal law, the Road Transport and Safety Agency (RTSA) administer the Road
Traffic Act No. 11 of 2002. The offences are outlined under Part XI of the Act and include causing death
by reckless or dangerous driving168, reckless or dangerous driving,169driving when under the influence
of intoxicating liquor or a narcotic drug170 among others.
Usually, RTSA works hand in hand with Traffic Police Officers from the Zambia Police Service for the
purposes of prosecuting offenders under the Act. Consent in writing of the DPP is a requisite for
prosecution of offences under this Act.171
5.13 AD HOC INSTITUTIONS
The country has witnessed the creation of ad hoc or generic investigatory and prosecutorial institutions
outside those addressed above. Sometimes, these institutions have comprised public and private
investigators who usually serve at the “pleasure” of the President. Since these institutions are neither
created by statute nor law, they are established through presidential decrees hence a cross-section of the
society has challenged their constitutionality and legality. They are seen as the “extended arm” of the
presidency to “persecute” and “eliminate” potential opponents. Usually, they have neither
parliamentary approval nor any other oversight as they are “accountable,” “responsible” and
“answerable” only to the President.
The following are some of examples seen in recent years. There was the Task Force on Corruption
(TFC) which was created in 2002 by the late President Levy Patrick Mwanawasa, SC to investigate
167
S.6 (a), (c) provides prosecution powers.
section 161
169
section155
170
section 157
171
section 162 (1) (c)
168
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alleged plunder by his predecessor late Dr. Frederick Jacob Titus Chiluba. President Mwanawasa
himself a lawyer of state counsel status who was also a former Solicitor General appointed Mark Chona
as Chairman and State Counsel Mutembo Nchito and his brother Nchima as lead prosecutors172 to help
“recover” the loot by the previous government. The self styled ‘New Deal’ Government however faced
backlash as it was accused of impunity, selective justice and mere persecution of political opponents.
Richard Sakala, who was Chiluba’s special Assistant for Press and Public Relations has documented
the perceived “motives and flaws” of the TFC which hijacked the powers and functions of the DPP’s
office.173
Then there was the Joint Government Investigations Team (JGIT) which was formed in 2012 through
a presidential decree by the socialist firebrand late President Michael Chilufya Sata who also alleged
plunder by the preceding regime of the Movement for Multi-party Democracy (MMD) led by Rupiah
Bwezani Banda.174 The JGIT was somewhat different from the TFC in that it was a sort of hybrid or
generic institution comprising all investigative and prosecutorial wings under one roof at the direction
of the DPP and indeed the President. However, the fashion and style of its modus operandi was allegedly
similar to that of the TFC namely targeting political opponents and fabricating charges as evidenced by
its failure to prove cases and secure convictions.
5.14 ACTIVITIES
1. Has the change of the name from Zambia Police Force to Zambia Police Service helped in the
attainment of its constitutional duties?
2. How has the separation of the prosecution function from the mainstream criminal investigations
impacted on criminal justice in Zambia?
5.15 SUMMARY
This unit has traversed the various criminal justice institutions in this country. We have
also analysed the various laws of the institutions and showed how each is peculiar from
the other. We have also seen how the coming of the NPA separated the prosecution
function from general law enforcement.
172
These were not appointed by the DPP who has powers to appoint public protectors as discussed above but
by President Mwanawasa
173
Sakala, R.L. (2010). A Mockery of Justice: Rule without Law Legacy 2001 – 2008. Lusaka: Sentor Publishers.
174
Popularly known as RB he served from 2008 – 2011 after succeeding Levy Mwanawasa who died whilst in
office. RB also served as Vice President under the New Deal Government during the period 2006 – 2008. He
had disbanded the TFC on grounds of it not being a legally constituted organ which usurped the power of
among others the DPP, ZP, ACC and DEC. The other reason was that it spent more than it ‘recovered’ from the
alleged loot by FTJ Chiluba’s government officials.
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UNIT SIX
THE DIRECTOR OF PUBLIC PROSECUTIONS
6.1 INTRODUCTION
The office of the DPP is established by Article 180 of the Constitution of Zambia (Amendment)
Act No.2 of 2016. Article 180 (3) of the Constitution provides that the DPP is the Chief
Prosecutor for the Government and the head of the National Prosecutions Authority (NPA).175 Thus,
the DPP is the head of the NPA and hence she is the overseer of all criminal prosecutions in Zambia.
6.2 AIM
The aim of this unit is to introduce students to the office of the DPP, how he or she is
appointed, his or her roles and how he or she can interfere in criminal proceedings.
6.3 OBJECTIVES
At the end of this unit you should be able to do the following:


Explain the role of the DPP in the criminal justice system.
Discuss the general powers of the DPP in criminal prosecutions.
6.4 TIME REQUIRED
Minimum amount of time on the unit is 3 hours.
6.5 REFLECTION
Think of how a decision by the DPP to enter a nolle prosequi in his own case can
impact on the rule of law.
175
Created by the National Prosecutions Act No. 34 of 2010
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APPOINTMENT
The DPP is appointed by the President of the Republic subject to ratification by the National
Assembly.176 The qualifications for one to be appointed DPP are outlined in Article 180 (2) of the
Constitution which provides that:
A person qualifies to be appointed as Director of Public Prosecutions if that
person(a) has experience in undertaking criminal trials; and
(b) is qualified to be appointed as a judge.
The above provision has to be read in conjunction with Article 144 which provides the requisite
qualification for one to be appointed as Judge. This provides that:
A person qualifies for appointment as a judge if that person is of proven
integrity and has been a legal practitioner, in the case of the(a) Supreme Court, for at least fifteen years;
(b) Constitutional Court, for at least fifteen years and has specialized training
or experience in human rights or constitutional law;
(c) Court of Appeal, for at least twelve years; or
(d) High Court, for at least ten years.
POWERS
Article 180 (4) of the Constitution is instructive in this regard as it outlines the powers of DPP as Chief
Prosecutor of the Republic. By this provision, the powers of the DPP are to:
(a) institute and undertake criminal proceedings against a person before a court,
other than a court-martial, for an offence alleged to have been committed by
that person;
(b) take over and continue criminal proceedings instituted or undertaken by
another person or authority; and
(c) discontinue, at any stage before a judgement is delivered, criminal
proceedings instituted or undertaken by the Director of Public Prosecution
or another person or authority.177
It must be noted the functions of the DPP may be exercised in person or by any public officer or legal
practitioner authorized by the DPP.178 The DPP has, by Section 86 of the Criminal Procedure Code,
176
Constitution of Zambia (Amendment) Act No. 2 of 2016, Article 180 (1)
S.8. of the National Prosecution Act also grants similar powers to the DPP.
178
Art. 180 (8) of the Constitution.
177
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Chapter 88 of the Laws of Zambia, power to appoint any public officer or legal practitioner as public
prosecutor to appear on behalf of the people in any criminal proceeding. The same power of
appointment is also conferred on the DPP by Sections 5 and 8 of the National Prosecutions Authority
Act.
Further, the powers of the DPP to institute and undertake criminal prosecutions before any court of
competent jurisdiction exclude court-martial. In Mumba v The People179 it was held that the DPP has
no locus standi to undertake criminal prosecutions in court-martial.180 She exercises her powers in a
discretionary manner.181 She also has powers to grant immunity or indemnity from prosecution.182
CONSENT TO PROSECUTE
The law has provided that some offences cannot be prosecuted without the consent of the DPP, written
or otherwise. The requirement of consent is of paramount importance as it goes to the jurisdiction of
the court. By the holding in Clarke v The People,183 a court has no jurisdiction to try a matter before
consent is given. In this case it was held that the DPP has to personally sign the charge for offences
under the State Security Act as this shows that he has personally applied his mind to the matter and
objectives of the section have been met. A charge will be read out but the accused will not be required
to take plea and the court will adjourn until consent is given by the DPP. Section 8 (3) of the NPA Act
allows the DPP to delegate her power to the Chief State Advocate and the Deputy Chief State Advocate
give consent. It is also important to note that consent cannot be backdated and trial conducted in the
absence of such consent is a nullity.184
The following are some offences that require that the DPP gives consent before trial can take place:
a)
b)
c)
d)
e)
f)
g)
Seditious practices185;
Incest186;
Possession of Obscene materials187;
Defamation188;
Offences under the Anti-Corruption Act189;
Offences under the State Security Act190;
Offences under the Chiefs Act191; and
179
(2006) ZR 93
this exception is also found under Article 180 (4) (a)
181
Kambarange Mpundu Kaunda v The People (1990-92) ZR 215 where it was held that a prosecution after the
DPP had announced that an accused person would not be prosecuted was a nullity.
182
section 8 (1) of the Anti-Corruption Act of 2012 and section 4 of the Plea Negotiations Act of 2010
183
(1973) ZR 179
184
Mwanza (A.B.) v The People (1973) ZR 329
185
section 58 of the Penal Code
186
section 154 of the Penal Code
187
section 177 (5) of the Penal Code
188
section 192 of the Penal Code
189
section 46 of Act No. 3 of 2012
190
section 14 of Chapter 111 of the Laws of Zambia
191
section 13 of Chapter 287 of the Laws of Zambia
180
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h) Issuing of Summons after 28 days under the Road Traffic Act.192
The requirement for consent is premised on the requirement that public prosecutions be done in public
interest and for her to exercise her judgement and discretion that particular charge and consequent
prosecution are in the interest of the public.
INSTRUCTIONS
Instructions of the DPP are usually confused with consent to prosecute. It must be understood that
instructions relate to cases triable in the High Court and the accused has to be committed to the High
Court from the Subordinate Court which has no jurisdiction to try that matter. Consent relates to
authority from the DPP to commence prosecution regardless of whether that offence is triable in the
High Court or Subordinate Court.
Section 11 (2) of the Criminal Procedure Code provides that no case of treason or murder may be tried
by any Court other than the High Court. The Schedule to section 11 of the same Act provides for other
offences that can only be tried by the High Court.
DISCONTINUANCE OF PROCEEDINGS
There are three ways in which the DPP may exercise her power to discontinue criminal proceedings
under Article 184 of the Constitution of Zambia. The modes are discussed below:
a) Withdrawal
In any trial before a subordinate court, any public prosecutor may, with the consent of the court or on
the instructions of the DPP, at any time before judgement is pronounced, withdraw from the prosecution
of any person.193 Withdraw of prosecution has two consequences as provided under section 88 of the
Criminal Procedure Code. Firstly, if is made before the accused person is called upon to make his
defence, he shall be discharged, but such discharge of an accused person shall not operate as a bar to
subsequent proceedings against him on account of the same facts.194 And secondly, if it is made after
the accused person is called upon to make his defence, he shall be acquitted.195
If a prosecutor is acting on his own he requires the consent of the court but if he is withdrawing on
instructions of the DPP then consent of the court is dispensed with. In the case of Ngoma v The People196
it was held that:
an application by a prosecutor to withdraw a case must not be allowed by a
Magistrate without good and sufficient reason. The easy giving withdrawals
and adjournments add to the expense of trials, the time they take and clutters
up the court.
Suffice it to add that a withdrawal under this provision applies only to the Subordinate Court and not
proceedings in the High Court which can only be withdrawn by a nolle prosequi as will be seen below.
192
section 162 (1) (c) of Act No. 11 of 2002
section 88 of the Criminal Procedure Code
194
section 88 (a)
195
section 88 (b)
196
(1974) ZR 194
193
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b) Offer of No Evidence
No statutory provision provides for this mode as it is provided for by common law and it exists both in
the High Court and Subordinate Court. Where the prosecutor offers no evidence against the accused,
the accused person is acquitted immediately. 197 This is rarely used by the prosecution and may be
resorted to in cases of the accused perishing by death, discovery of new and exculpatory evidence and
dying of the only witness, to mention but a few.
c) Nolle Prosequi
A nolle prosequi is a formal entry upon record by the prosecuting attorney by which he declares that he
will no further prosecute the case, either to some of the defendants, or altogether.198 It can thus be
entered, in the case of co-accused persons, against one or all of them at a go or at different times.
The DPP, on her own or through prosecutors, has power to enter a nolle prosequi in any matter before
judgement is delivered199. The power to enter a nolle prosequi is incontestable and cannot be challenged
as she cannot be asked to furnish reasons as to why she intends to discontinue a matter through a nolle
prosequi.200 This is so because a nolle prosequi is not an application but the court is merely informed
of the decision. In the case of R v Train Viyuwi201 it was held that:
the correct procedure in order to withdraw a charge in the High Court is to
enter a nolle prosequi.
Thus, the only way to withdraw a matter from the High Court is by entering a nolle prosequi. It can be
used both in the High Court and the Subordinate Court serve that cases can be discontinued in the
Subordinate Court by way of withdrawal as well. When entered, the accused id merely discharged and
not acquitted and can be re-arrested on the same charge.202
6.11 ACTIVITIES
1. How is a withdrawal different from a nolle prosequi?
2. Can a DPP take over proceedings in which he is a defendant? On what authority?
3. How is consent different from instructions?
6.12 SUMMARY
This unit has discussed the office of the DPP. By this we have looked at the appointment
of the DPP, the authority and powers of the DPP and the various forms of discontinuance
of criminal proceedings.
197
R v Frackson Samson (1961) R & NLR 108
Nolan, J.R. & Nolan-Haley, J.M. (1990). Black’s Law Dictionary, 6th edn., Minnesota: West Publishing Co. p.
1048
199
section 81 of the Criminal Procedure Code
200
Director of Public Prosecutions v Mbayo Mutwala Augustino (1977) ZR 287 (SC)
201
5 NRLR 78
202
section 81 of the Criminal Procedure Code
198
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UNIT SEVEN
CHARGE SHEET AND INFORMATION
7.1 INTRODUCTION
It is important to note that a Charge Sheet applies to the Subordinate Court while the High
Court uses Information. The Charge Sheet or Information should be drawn in accordance with
the law as prescribed under sections 134 to 137 of the CPC. In practice, a poorly framed charge or
information is sometimes fatal as it may lead to an acquittal of the accused person either at review or
appeal stages. The two contain three main parts, as explained below, namely: commencement, statement
of offence and particulars of offence.
7.2 AIM
The aim of this unit is to enlighten students on the art of drafting charge sheets and
information and to expose them to the rules and principles governing them.
7.3 OBJECTIVES
At the end of this unit you should be able to do the following:



Draft a Charge Sheet and Information.
Describe the contents and form of the Charge Sheet and Informations.
Explain the principles and rules governing Charge Sheet and Information.
7.4 TIME REQUIRED
Minimum amount of time on the unit is 3 hours.
7.5 REFLECTION
Think of ways in which accused persons are informed of the charge against them.
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7.6 CHARGE SHEET
Section 134 of the CPC provides that:
Every Charge or information shall contain, and shall be sufficient if it
contains, a statement of the specific offence or offences with which the
accused is charged, together with such particulars as may be necessary for
giving reasonable information as to the nature of the offence charged.
The parts, which apply to both a Charge and Information, are discussed in detail below:
a) Commencement
This part contains information where trial is taking place and in the case of the subordinate court it shall
contain details of the accused person, date of arrest and whether the accused was arrested with or
without a warrant. The details include name, age, sex, occupation, residential address, tribe, village,
chief and district. These details significant as they show whether or not the accused is a juvenile hence
subject to juvenile proceedings or at sentencing whether the accused is a woman hence cannot be
sentenced to imprisonment with hard labour.
b) Statement of the Offence
Section 137 (a) (i) and (ii) of the CPC provides that:
i)
A count of a charge or an information shall commence with a statement of the
offence charged, called the statement of offence;
ii) The statement offence shall describe the offence shortly in ordinary language
avoiding as far as possible the use of technical terms, and without necessarily
stating all the essential elements of the offence and, if the offence charged is one
created by enactment, shall contain a reference to the section of the enactment
creating the offence203.
In the event of two or more offences, regard you highlight both sections from the relevant statutory
provisions. In Joseph Nkole v The People204 it was held that:
a statement of the offence shall contain a reference to the Section of the
enactment creating the offence (section 134 of the CPC as read together with
section 137 (a) (ii)). Whether the charge or information is defective, the
question of whether or not the accused is prejudiced by such a defect must be
considered in each particular case.
c) Particulars of the Offence
The Second Schedule of the CPC as provided for by section 137 (a) (iv) sets out the format of particulars
of the offence. This contains the full names of the accused person or his aliases as he is known.205 Then
203
see the Second Schedule of the CPC
(1977) ZR 351
205
section 137 (d) of the CPC; see also R v Musango Bros 5NRLR 559 in which the defendants, a firm of bus
proprietors, were charged as “Musango Brothers of Ndola”. It was held that where a firm is a “one man”
business concern the person concerned should be summoned and charged in his own name, e.g. John
Musango trading as Musango Brothers (address) Ndola. In the case of a partnership firm, one partner could be
204
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there is also a provision for a date on which the offence was committed in so far as is known. For
homicide (murder or manslaughter), the charge or information should denote the date of death as the
date of crime. In Saluwena v The People206, it was held that:
in the case of manslaughter or murder, the charge should denote the date of
death as the date of crime (Archbold, 35th edn., para 2547). No crime of
murder or manslaughter is committed until the death occurs, therefore to
charge the date of crime as the date of if injury, not the date of death (where
these occur on different dates) is considered illogical and wrong.
Other rules to consider are that:




time when offence was committed is not important unless it is an ingredient of the offence such
as burglary207 and selling of liquor outside permitted hours;208
if property is in issue it has to be described and the name of the owner included;209
where there are more than one offender all must be included in the charge, e.g. John and Mary
jointly and whilst acting together did murder Molly; and
place of the commission of the offence may not be important serve for offences such as Causing
Death by Dangerous or Reckless Driving.
charged and summoned in his own name with the endorsement of “John Musango, a partner in the firm of
Musango Brothers.”
206
(1965) ZR 4
207
section 301 of the Penal Code
208
section 167 of the Liquor Licensing Act
209
section 137 (c) of CPC
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Precedent
Sc criminal no.33
Stocked by Govt. Printers
REPUBLIC OF ZAMBIA
Case No.
XYZ/001/2018
of
2018
IN THE SUBORDINATE COURT of the ……………….FIRST……………………..class of the
…………………..KABWE……………District, Holden at …………….. KABWE………………….
Before: PRM on the 25th day of May, 2018 at 09:00 hours in the fore noon.
THE PEOPLE versus:
XI MAO…………………………………………
Residential address:
H/NO.100 NATIONAL WAY KABWE………..
Sex:
MALE………………………………………………….………………..
Age:
50YEARS
…………………………………………………………….
Occupation:
MECHANIC……………………………………………..
Tribe:
LALA…………………………………………………………………
Village:
MAILO ………………………………….………...
Chief:
MAILO
…………………………………………………………..
District:
SERENJE
………………………………………………………………..
Accused was served on ………………. The summons dated…………………………………………..
Accused was arrested without warrant on ……….under warrants dated………………………..
Accused arrested without warrant on ………………………… 10/04/2018…………………………
Accused was released on bail or on his own recognizance on ……………………………………
CHARGE:
Count 1
(if space insufficient continued overleaf)
Statement of offence:
THEFT BY SERVANT contrary to section 272 and 278 of the
Penal Code Chapter 87 of the Laws of Zambia.
Particulars of Offence:
XI MAO between 6th January , 2018 and 30th January at Mbalala in
the Kabwe District of the Central Province of the Republic of Zambia, being a person employed
by China Zambia Constructors as driver did steal K11,000 the property of the said employer.
....………………………..
Magistrate or Public Prosecutor
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i. Rule Against Duplicity
The Rule against Duplicity is comprehensively discussed in Shamwana and 7 others v The People210
where it was stated that duplicity means the charging of two or more separate offences in the same
count. Thus, where two or more offences are charged in the same indictment, the indictment is, to that
extent bad for duplicity. It was held that:
Duplicity is a matter of form, not of evidence and, as such, it must be gathered
from the count itself-duplicity in a count is a matter of form not of evidence
called in support of the count. To ascertain whether a charge is bad for
duplicity, it is generally enough to examine the count itself, that is, the count’s
statement of offence as read with its particulars of offence, it being ordinarily
unnecessary to look further than the count itself. If an examination of the
count shows that two or more offences have been charged therein, then the
count is bad for duplicity.
In the case of The People v Makhokha211it was held that:
Putting two distinct offences in one count makes a charge defective. In this
instance, two distinct offences, independent of each other, that is, attempted
smuggling and failure to provide documents to a customs officer.212
The rationale for this rule was stated in the case of Fluckson Mwandila v The People213in which it was
held that:
The law relating to duplicity is intended to avoid subjecting an accused
person to an unfair trial, so that he may know exactly what case he has to
answer. The law relating to duplicity of charges is intended to avoid
subjecting an accused person to an unfair trial and enable him to know the
case against him, so that he may in future plead autrefois convict or acquit.214
ii. Rule Against Overloading a Charge
There is no rule that limits as to how many counts to put in a charge sheet or information but prosecutors
are discouraged from overloading a charge sheet or information as it is unfair not only to the accused
but also to the court to load counts in a charge leading to an exhaustive and long trial.215
210
(1985) ZR 41
(1967) ZR 173
212
see also the cases of Patel v The People (1969) ZR 132 and Nsama and Others v The People (1976) ZR 171
213
(1979) ZR 174
214
see the case of R v Kantolongo White and Another 4 NRLR 217 on the exception to the rule as it relates to
housebreaking and theft or burglary and theft which can be joined in one count and the case of R v Donald
Phiri 4 NRLR on duplicity as relates to identical facts.
215
Mulwanda v The People (1976) ZR 173
211
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7.7 INFORMATION
As stated above, Information is used in the High Court as opposed to a Charge Sheet that is used in the
Subordinate Court. It should be noted that the rules that apply to a Charge Sheet such as duplicity and
overloading of counts also extend to Informations.
Precedent
IN THE HIGH COURT FOR ZAMBIA
HOLDEN AT LUSAKA
(Criminal Jurisdiction)
HP/111/2018
INFORMATION
The 9th day of October, 2018 at the sessions holden in Lusaka on the 9th day of October, 2018 the
Court is informed by the Director of Public Prosecutions on behalf of the People that JACK
GAMBINO stands charged with the following:
STATEMENT OF OFFENCE
CAUSING DEATH BY DANGEROUS DRIVING
(Contrary to Section 16 (1) of the Road Traffic Act No. 11 of 2002 of the Laws of Zambia)
PARTICULARS OF OFFENCE
JACK GAMBINO, on the 20th day of August, 2018 at Chainama in the Lusaka District of the Lusaka
Province of the Republic of Zambia, did cause death of GRACE ZULU by driving a motor vehicle
namely Mercedes Benz registration number XYZ 1000 on a public road namely Great East Road in a
manner which was dangerous to the public having regard to all the road and the amount of traffic which
was actually at the time or which might have been expected to be on the said road.
STATE ADVOCATE
FOR/DIRECTOR OF PUBLIC PROSECUTIONS
NOTICE OF TRIAL
TO: JACK GAMBINO
TAKE NOTICE that you will be tried on the information whereof this is true copy at the High
Court Sessions to be held on the 9th day of October, 2018 at 09:00 hours in the forenoon
CLERK OF SESSIONS
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OBJECTIONS TO A CHARGE OR AN INFORMATION
A charge or information may be objected to on one or more of the following grounds:
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
that it does not conform to the requirements as laid down under sections 134 to 137 of the CPC;
that the offence is either statute barred or is in excess of the requisite time limit;216
that the alleged offence was not a crime at the time of commission;217
that the charge is not non-existent or the does not disclose an offence;218
that the charge is based on repealed law;219
that the court has no jurisdiction to hear the charge or try the offence;220
autrefois convict or acquit;221
plead immunity such as presidential immunity222or diplomatic immunity;223
immunity of judicial officers;224 and
the presumption of doli incapax.225
AMENDMENT OF A CHARGE OR INFORMATION
On the successful objection to a Charge or Information by an accused person, the court has two options.
First, the court can quash the charge or information226 and second, order the amendment of the Charge
or Information.227 An amendment can be done on the motion of the prosecution or the court on its
volition. When a charge has been amended the accused has to take fresh plea and has a right to recall
all witnesses.228 The Court will only quash the charge or information if it cannot be amended or will be
prejudicial to the accused.229.The quashing of a charge or information does not lead to an acquittal but
merely entitles the accused to a discharge of which he can be rearrested on the same facts.
JOINDER OF COUNTS
Section 135of the CPC provides that:
(1) Any offences, whether felonies or misdemeanors, may be charged together in
the same charge of or information if the offences charged are founded on the
same facts or form, or are a part of, a series of offences of the same or a
similar character230.
216
for example an offence under section 219 of the CPC; section 129 of the Electoral Act No. 12 of 2006; or
Offences under the Road Traffic Act.
217
Article 18 (4) of Act No.18 of 1996
218
Kambarange Mpundu Kaunda v The People (1992) S.J.1
219
Article 18 (8)
220
section 11 of CPC; section 85 of CPC on consent of DPP
221
Article 18 (8) of the CPC; DPP v Katema held that a person who has been acquitted can be retried if an
appellant orders a retrial; see also section 140 of CPC and section 20 of Penal Code; The People v Petrol
Zambwela (2002) ZR 45-only a court of competent jurisdiction can acquit.
222
Article 98 of Act No.2 of 2016
223
section 3 of the Diplomatic Immunities and Privileges Act, Chapter 20 of the Laws of Zambia which
domesticates Article 31 of the Vienna Convention on Diplomatic Relations
224
section 15 of Penal Code
225
section 14 of Penal Code
226
section 274 of CPC
227
section 273 of CPC
228
John Banda v The People (1970) ZR 14
229
Kambarange Mpundu Kaunda and Shamwana cases
230
R v Donald Phiri 4 NRLR 82; DPP v Boardman (1974) AC 421 defines similar facts
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(2) Where more than one offence is charged in a charge or information, a
description of each offence so charged shall be set out in a separate
paragraph of the charge or information called a count.231
JOINDER OF ACCUSED PERSONS
In R v Supuni Kamoko and 2 others232 it was held that accused persons could be tried separately or
together and it is quite correct to join two counts in one charge.233 Section 136 of the CPC provides that:
The following persons may be joined in one charge or information and may
be tried together, namely:
a) persons accused of the same offence committed in the same course of the same
transaction;
b) persons accused of an offence and persons accused of abatement, or of an
attempt to commit such offence;234
c) persons accused of different offences committed in the course of the same
transaction.
7.12 ACTIVITIES
1. What grounds can one rely on to object to a Charge or Information?
2. What is the underlying rationale behind the rule against duplicity?
3. How is a Charge different from a count?
7.13 SUMMARY
This Unit has strived to discuss what a charge and information are; their contents and
circumstances when one may challenge them on grounds of duplicity or being bad or
defective. A charge is bad if it fails to disclose the offence and it is defective if it contains
an error which goes to the root of the offence so charged.
231
In R v Musango Brothers 5 NRLR 599, Evans, A.J. opined that in drafting a charge containing several counts,
each count must not only contain the “PARTICULARS OF OFFENCE” but also a preceding “STATEMENT OF
OFFENCE” and this is whether or not the statement of offence is similar to those in other counts; and in the
Fluckson Mwandila it was held that where there is more than one offence, each offence should be placed in a
count.
232
4 NRLR 249
233
section 135 (3) of the CPC as construed in R v Chakopa Maulu and Another 5 NRLR 208 allows a person
jointly charged to request the court to be tried separately if they think it would be difficult to defend
themselves or seek to call the co-accused as a witness as in this case.
234
In Nsama v The People (1976) ZR 171 it was held that a conspiracy charge should not be used in lieu of a
charge for specific offence and it is wrong to include a charge for conspiracy in an indictment which contains
charges for specific offences which where the subject of the conspiracy. Where specific offences could be
charged a charge of conspiracy was improper-the charge of conspiracy is bad because the accused were
charged more than once for the same offence.
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UNIT EIGHT
THE ARREST PROCESS AND PROCEDURE
8.1 INTRODUCTION
The process of arrest is the starting point of criminal procedure in Zambia. It is trite law in
Zambia that a person can only be arrested on reasonable suspicion. In Mbandangoma v
Attorney-General 235it was held that in order to satisfy an arrest of the plaintiff the defendant must show
that at the time of the arrest, the arresting officer had reasonable suspicion that the plaintiff had
committed the offence with which he was charged. It was also stated that it is improper for police to
detain persons pending investigations without bringing them to court. It was further stated that the police
can only arrest persons for offences and have no power to arrest anyone in order to make enquiries
about him.236
8.2 AIM
The aim of this unit is to introduce students to the trial process in Zambia’s criminal
procedure.
8.3 OBJECTIVES
By the end of this unit you should be able to do the following:
i.
ii.
iii.
Explain the arrest procedure in Zambia.
Distinguish cognizable from non-cognizable offences.
Discuss the use of illegally obtained evidence in Zambia.
8.4 TIME REQUIRED
Minimum amount of time on the unit is 3 hours.
235
236
(1979) ZR 45
Re Siuluta and Others [1974] ZR 14 reached the same conclusion
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8.5 REFLECTION
Imagine a country without procedure and rules regulating arrests by law
enforcement agencies.
COGNIZABLE AND NON-COGNIZABLE OFFENCES
Section 2 of the CPC defines cognizable offences to mean:
an offence for which a police officer may, in accordance with the First
Schedule or under any written law for the time being in force, arrest without
warrant.
The offences under the said schedule include treason, misprision of treason, treason-felony, inducing
desertion, defamation of the president and possession of seditious materials among others. Section 26
of the CPC sets out procedure for police officers to follow when conducting an arrest when a person is
about to or has committed an offence. Section31 of the CPC also endows citizens, in their private
capacity, to arrest for certain offences.
Meanwhile, section 2 of the same Act defines non-cognizable offences to mean:
an offence for which a police officer a police may not arrest without a
warrant.
For example, under the First Schedule, aiding acts of mutiny and defamation of foreign princes require
a warrant before conducting an arrest.237
ARREST WITH WARRANT
Sections 90 and 91 of the CPC providing the starting process for the arrest procedure. These provisions
allow an aggrieved person to lodge a complaint, either oral or written, before a magistrate. The
complainant has to satisfy the magistrate regarding the complaint before the matter can be escalated. In
the Musango Brothers case, it was held that:
the public prosecutor should draft the charge but the magistrate should check
the correctness of the same before causing the accused to plead. The charge
should highlight how the offence was committed in the particulars of the
offence and statement of the offence.
In Mulaisho v The People238 it was held that:
no warrant of arrest should be issued by a Magistrate until he is satisfied, by
viva voce or affidavit evidence, as to service of summons.
237
sections 35 and 36 also allows magistrates to order for an arrest of a person who commits an offence in the
presence of that magistrate or in his local jurisdiction
238
(1969) ZR 124
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Where proceedings are in the name of the people, the state is the complainant while the victim becomes
merely a witness while if instituted by an individual, he shall personally prosecute the matter without
the consent of the DPP.239 A complainant is not permitted to engage the services of the public other than
an advocate, to prosecute an action on his behalf.240
ARREST WITHOUT WARRANT
In Mutemwa v The Attorney-General241it was opined that:
under section 33 of the CPC if a person is taken into custody without a
warrant for an offence other than one punishable with death, he must be
brought before court within 24 hours or else be released on bond.
In Attorney-General v Sam Amos Mumba242 it was further guided that:
a police officer was to inform a suspect arrested of his grounds for arrest
unless himself procures a situation which makes it practically impossible to
inform him, for example, if accused is drunk. Failure to inform the arrested
person as soon as is reasonably practicable may amount to false
imprisonment.
SEARCH WARRANT
Search warrants are provided for under sections 118 to 122 of the CPC.243 The case of Patel v The
Attorney-General 244 illustrates the importance of getting a search warrant by Police and other law
enforcement officers. A police officer has to prove on oath before a magistrate can cause to be issued a
search warrant.245
ILLEGALLY OBTAINED EVIDENCE
Derivative or illegally obtained evidence is admissible in Zambian courts as long as it is relevant to the
facts in issue. This principle was laid down in the case of Liswaniso v The People246 in which illegally
obtained evidence was admitted. The Supreme Court held that although the law must strive to balance
the interests of the individual to be protected from illegal invasions of his liberties by the authorities,
on the one hand, and the interests of the state to bring to justice persons guilty of criminal conduct, on
the other hand, the answer does not lie in the exclusion of evidence of a relevant fact.247
However, the Supreme Court warned that:
239
The People v Chaponda (1973) ZR 175
Paul Jeremiah Lungu v The People (1978) ZR 298
241
(1979) ZR 251
242
(1984) ZR 14
243
This is in line with Article 17 of Act No. 18 of 1996
244
(1968) ZR 99 (HC)
245
see sections 22 and 24 on searching of suspects
246
(1976) ZR 297 (SC)
247
Government of the Republic of Zambia (2002). Zambia’s Third Periodic Report on the Implementation of the
Covenant on Civil and Political Rights. Lusaka: Ministry of Justice.p.47.
240
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But we wish to make it abundantly clear that any illegal or irregular invasions
by the police or anyone else are not to be condoned and anyone guilty of such
an invasion may be visited by criminal or civil sanctions.
8.11 ACTIVITIES
1. What do you understand by the requirement of reasonable suspicion? Is it specific enough to
prevent abuse?
2. What is the difference between cognizable offences and non-cognizable offences?
8.12 SUMMARY
This Unit has discussed the arrest process and procedures. In conclusion, we should note
that an arrest is different from a charge. Once arrested, a person can be released but once
charged he has to appear in court for prosecution thence to be charged means one has been
formally accused. Lastly, we have seen that one can be arrested on a reasonable suspicion
only and should be informed of those suspicions promptly and timely.
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UNIT NINE
BAIL APPLICATIONS
9.1 INTRODUCTION
Any person who has been arrested and charged with an offence has a right to be admitted to
bail. Generally, there are five types of bail available to an accused in Zambia. One can be
admitted to bail in his own recognizance248, by production of sureties or by deposit of a certain amount249
or a combination of two of the three.250 The provisions governing bail applications are contained under
sections 123 to 133 of the CPC while applications for variation of bail conditions are governed by
section 126 (g) of the CPC.251
9.2 AIM
The aim of this unit is to introduce students to applications revolving around bail in
Zambia.
9.3 OBJECTIVES
By the end of this unit you should be able to do the following:
i.
ii.
iii.
Explain the constitutional basis for bail applications in Zambia.
Discuss the relevant bail applications available in Zambia.
Identify offences which are bailable and those that are not.
9.4 TIME REQUIRED
Minimum amount of time on the unit is 3 hours.
9.5 REFLECTION
Imagine an accused person who has been in detention for a long time only to be found
innocent at a later stage
248
section 126
section 126 (1) does not place a limit on the amount to be set for bail
250
section 123 (1) of the CPC
251
Faustin Kabwe and Another v The People (2011) 2 ZR 186
249
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BAILABLE AND UNBAILABLE OFFENCES
Not all offences are bailable in Zambia as the law has provided for a category of persons that allow the
Police or the courts to deny admitting an accused person to bail. Section 123 of the CPC lists offences
that not bailable, these include:






Murder
Treason
Any other offence carrying a possible or mandatory capital penalty
Misprison of treason
Treason-felony
Aggravated Robbery
Other offences outside this Provision that are not bailable include;



Theft of Motor Vehicle is not bailable if the Offender has been previously convicted of Theft
of Motor Vehicle252
Espionage is bailable unless the DPP issues a Certificate to deny bail
Offences under the Narcotic and Psychotropic Substances Act253
POLICE BOND
Section 33(1) of the CPC allows for the detention of accused persons or suspected persons at police
stations for reasonable times. As held in Re Siuluta, bail should be granted to accused persons before
being formally charged and if one is not taken to court within 24 hours he must be released by the
Officer-In-Charge (OIC) of that police station.
Police Bond or bail is granted to an accused person by the OIC in accordance with section 123 of the
CPC. No formal application is required here as in court as this bail is administrative and can be cancelled
anytime by the OIC before the accused appears in court.
In granting police bond or bail, the Police usually look at the following among others:
1.
2.
3.
4.
5.
6.
7.
the offence must be a bailable offence;
must not be a flight risk who may not appear in court;
must be of fixed aboard;
must not engage in any criminal activity while on bond;
must not interfere with witnesses;
must keep the peace while on bond; and
must provide sureties of fixed aboard.254
However, by section 124 of the CPC, the Police may give further conditions other than the usual
conditions of sureties, payment of money, making of an undertaking such as presenting oneself at the
police station every day at 1800 hours or surrendering of one’s passport.
In the case of The People v Benjamin Sikwiti Chitungu and Others255 it was held that:
252
The previous conviction should be Theft of Motor Vehicle and not any other offence
section 43 of the Act as construed in Lanton, Edward and Thewo v The People (1998) SCZ Judgement 30
254
see www.zambiapolice.gov.zm [accessed on 26/07/2018 at 11:23PM]
255
(1990-92) ZR 190
253
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The police have powers to cancel bail on the following grounds:
a) if the accused is a flight risk256
b) interference with witnesses
c) commit similar offences
However, the court has power to enquire why bail was cancelled and if not
satisfied with reasons can grant bail.
BAIL PENDING TRIAL
Section 123 (1) of the CPC allows a person charged with a bailable offence to apply to be admitted to
bail pending trial. It can be done orally in court when one appears or by causing to be filed summons
accompanied by an affidavit in support which must be sworn by the applicant. This is first done in the
Subordinate Court and if refused it is renewed in the High Court. It is a “renewal” and not an appeal
because one can rely on totally different reasons for consideration of the High Court. 257 It is an
application for an offence tried in the Subordinate Court and must therefore first be made in that court
before it is renewed in the High Court.258
The factors which courts consider if one is to be admitted to bail were espoused in the celebrated case
of John Oliver Irwin v The People259 as follows:
1. the nature of the accusation against the applicant and the severity of the punishment which may
be imposed;
2. the nature of the evidence in support of the charge;
3. independence of the sureties if bail were to be granted;
4. the prejudice to the applicant (accused) if he is not admitted to bail; and
5. the prejudice to the state if bail is granted.
The Court of Appeal, according to section 18 (1) of the Court of Appeal Act, will only hear an appeal
as regards bail applications if there is an appeal pending before that Court.
BAIL PENDING CONFIRMATION
Section 13 (1) of the CPC provides that:
Whenever a subordinate court shall pass a sentence which requires
confirmation, the court imposing such sentence may, in its discretion, release
the person sentenced on bail, pending confirmation or such order as the
confirming court may take.
The person must have been convicted by the Subordinate Court and be waiting for the High Court to
confirm that sentence.260
256
see Anuphai Munubhai Patel v Attorney-General (1993-94) ZR 59 (SC) in which it was held that in any case
for bail the proper test of whether bail should be granted or refused is whether it is probable that the accused
will appear for trial
257
Benjamin Sikwiti Chitungu case
258
section 123 (3) of the CPC
259
(1993-94) ZR 94
260
In Jamu v The People (1981) ZR 99 it was held that the Supreme Court (now Court of Appeal it appears) may
deal with a bail application only where the High Court has refused to admit an applicant under section 36 of
the CPC.
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BAIL PENDING APPEAL
It granted by the Court in its discretion on the fear so to say of the danger of the applicant actually
serving part or all of sentence only to be acquitted by the appellate court.261 The starting point is section
332 of the CPC which allows a person who has been convicted by the Subordinate Court and has
appealed to the High Court to apply for bail pending the hearing of that appeal.262 The most important
consideration is that a person must have been convicted, sentenced and must have appealed to the High
Court.263 Thus, as held in Mayonde v The People264:
section 123 (5) of the CPC provides that neither the Subordinate Court nor
the High Court has power to grant bail before entering of a notice of appeal.
The Subordinate Court could only consider the application for bail when an
appeal had been entered.
The case of Stoddart v The Queen265 held that bail pending appeal should only be granted in exceptional
circumstances. Evans, J stated the following as exceptional circumstances:
a) where an appeal has raised an important point or difficult point of law;
b) where there is real doubt about the correctness of a conviction on a point of
law;
c) where a sentence is manifestly contestable as to whether or not it is a sentence
known to law;
d) where the appellant is likely to serve the entire or substantial part of the
sentence before the appeal is heard; and
e) where generally there is likelihood of success on appeal.266
In Andrew Banda v The People267 the Honourable Mr. Justice Chitabo, SC opined that:
the cardinal factor is the danger of the applicant actually serving part or all
of his sentence only to be acquitted by the appellate court.
Thus, the grounds of appeal will usually help the court reach at the two exceptional considerations stated
in the Stoddart case above.268
261
per Justice Mwila Chitabo, SC in Andrew Banda v The People Appeal No. HPA/58/2004 (Unreported)
an appeal from the Subordinate Court is usually automatic and is a matter of right hence no need for leave
while appeals from the High Court are in two types, that is, those that are as of right and those that require
leave. Those of the first type are usually for offences that are tried in the High Court at first instance while for
those of the second type are those for offences that come to the High Court on appeal. Section 18 (1) of the
Court of Appeal Act and Section 22 of the Supreme Court Act provide that those courts will only grant bail if
there is an appeal actually lying before those courts.
263
Valentine Shula Musakanya and Another v The People (1983) ZR 96 in this case it was also held that a
person convicted of a capital offence cannot reasonably be admitted to bail and that a trial court is not obliged
to hear an application for bail unless a notice of appeal has been filed. Also in Kambarange Mpundu Kaunda
case it was held that one could only be admitted to bail pending appeal if the offence for which he was
charged was a bailable one as provided under section 123 of the CPC.
264
(1976) ZR 129
265
(1949-1954) NRLR 288
266
followed in The People v Pandor and Another HPBA/26/2010 (Unreported)
267
Appeal No.HPA/58/2004 (Unreported)
268
In Titus Zulu and Another v The People (2010) 1 ZR 450 sets out conditions to be satisfied for grant pending
appeal which rests on the premise that where there is a likelihood of the appeal succeeding, bail ought to be
granted. In this respect it is necessary to demonstrate that either there is a real doubt about the correctness of
262
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CONSTITUTIONAL BAIL
Article 13 (3) of the Constitution269 requires that a person who has been arrested and charged within an
offence should be tried within a reasonable time and if he cannot be tried within such reasonable time
he should be released on bail. It seems that constitutional provision overrides all limitations on bail as
persons charged with unbailable offences and is heard in the High Court by virtue of Article 28 (2) of
Act No.18 of 1996 and if denied it ends there and cannot be appealed.
The leading case on constitutional bail is that of Chetankumar Shantkal Parekh v The People270 in which
the following principles where laid:
1. where any trial is unreasonably delayed through no fault or stratagem of the accused, the
arrested person must be released on constitutional bail;
2. such bail is available and clearly overrides any prohibitions in lesser laws so that Article 13 (3)
would apply to any unreasonable case, whatever the charge and whatever section 43 of the
Narcotic and Psychotropic Substances Act, or section 123 of the CPC or any other similar law
may say; and
3. there is nothing in the Constitution which invalidates a law imposing a total prohibition on the
release of a person reasonably suspected of having committed a criminal offence, provided that
he is brought to trial within a reasonable time after he has been arrested.
Thus, for one to qualify for constitutional bail, that person must be charged with an unbailable offence
or where previous bail applications have been refused, there must be inordinate delay and that delay
must be unreasonable and must not be of the fault or making of the accused person. Unreasonableness
is a question of fact and is highly dependent on the nature and seriousness of the charge so that a delay
of two years for a treason charge might not be unreasonable.
9.12 ACTIVITIES
1. What is the difference between bail and police bond if any?
2. Constitutionally, is there any such a thing as unbailable offences?
9.13 SUMMARY
In this Unit we discussed the various bail applications available to an accused person. Bail
is a right but is granted by the police or court on discretion upon meeting certain criteria.
As a practice point, it is always to remember that bail applications in court are neither
heard ex partes but are always heard inter partes. Police bail on the other hand is
administrative in nature.
a conviction, or to show that a sentence is manifestly contestable. Section 123 of the CPC has to be considered
before granting bail.
269
Act No. 18 of 1996
270
(1995) S.J. (SC)
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UNIT TEN
TRIAL PROCESS
10.1 INTRODUCTION
Statute and common law have prescribed the relevant processes to be followed in conducting
trials in Zambia. This is aimed at fostering certainty and uniformity so that all parties have a
level playing field to ensure that justice is done.
10.2 AIM
The aim of this unit is to enlighten students on the trial process in this jurisdiction.
10.3 OBJECTIVES
At the end of this unit you should be able to do the following:


Describe the trial process in this country.
Examine whether one’s plea is unequivocal or qualified.
10.4 TIME REQUIRED
Minimum amount of time on the unit is 3 hours.
10.5 REFLECTION
Think of the implications on criminal justice if the trial process was bulldozed by
the state.
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TAKING OF PLEA
The starting point of any trial is the consideration whether the offence charged is one that requires the
consent of the DPP in line with section 85 of the CPC. If the offence is one that requires consent then
plea will not be taken until that consent is given by the DPP. In Mwanza (AB) v The People271 it was
thus stated:
where any written law provides that no prosecution shall be instituted against
any person for an offence without the written consent of the DPP the
jurisdiction of the Court to do anything other than issue a warrant of arrest
or remand in terms of section 85 of the CPC depends on the fact that such
consent has been given and that it has been produced to the court. The failure
to give such consent is not a technicality but goes to the jurisdiction of the
court. Consent cannot be backdated to give jurisdiction and since there was
no consent in the existence or produced to the court at the time when most of
the prosecution evidence was given the trial proceedings on the court in
question were a nullity.
But when no consent is required the charge will be read out and the accused will either plead guilty or
not guilty. The law requires that only persons who are sane take plea before courts of law. It is in this
regard that the court has to be satisfied that the accused person is mentally fit to take plea and stand
trial. 272If an accused person refuses to plead, then the court will enter a plea of not guilty as provided
for under section 204 (4) of the CPC. If an accused remains mute, section 160 of the CPC is instructive
in that the court has to enquire into the reasons for muteness as to whether it is due to unsoundness of
mind. The case of The People v Musitini273 elaborates the procedure:
when it is brought to the notice of the court that an accused person is a deaf
mute then the question of the accused’s ability to make a proper defence
arises and the court is obliged to inquire into the matter by section 160 of the
CPC. Where no determination as to capability of making a defence has been
made a conviction is a nullity.
Section 161 (2) of the CPC at the close of evidence in section 161 (1), the
court, if it finds that the evidence as it standsa) would not justify a conviction or a special finding under section 167 shall
acquit and discharge the accused or;
b) would in the absence of further evidence to the contrary, justify a conviction,
or a special finding under section 167, shall order the accused to be detained
during the President’s pleasure.
Section 165 (2) of the CPC provides for a complete trial de novo where a
person previously ordered to be detained during the president’s pleasure
under section 161 subsequently becomes capable of making a proper defence.
271
(1973) ZR 329
section 204 of the CPC
273
(1975) ZR 53
272
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The courts, being aware that people are shrewd and may feign insanity, have put in place stringent
procedure for dealing with the question of insanity. 274 In all instances, if an accused is found to be
insane and mentally unfit to take plea, a plea of not guilty is entered.275
PLEA OF GUILTY
In Shampeta and Another v The People276 it was held that:
For a plea of guilty to be effective, the accused must appreciate the nature of
the charge, he must intend to plead guilty and he must admit sufficient facts
to enable him to be convicted of the offence charged.
And in the case of Gideon Hammon Millard v The People277 it was stated that:
when a court is taking plea it is essential that the elements of the charge are
sufficiently explained to an accused and in addition to recording a charge,
the particulars of the offence must be read to the accused.
There are two important points to note as regards a plea of not guilty. This is in line as to whether the
accused is represented by counsel or unrepresented. If an accused is represented by counsel, the need
for explaining the ingredients of the offence is not necessary as the court will ask counsel if the plea of
guilty is in line with instructions from client. If accused is unrepresented, all statutory defences have to
be explained, for example the proviso under section 138 (2) of the Penal Code in a defilement charge.278
Suffice it to say that a plea of guilty should be unequivocal and unqualified.279 Therefore, courts should
enter a plea of not guilty if a material fact to a charge has been disputed.280
WITHDRAWAL OF PLEA
A person has a right withdraw a plea at any stage before sentence after which the court becomes functus
officio.281 However, in practice, courts will only exercise their discretion to allow a withdrawal of a plea
on good and sufficient grounds.282 For example in Gideon Hammon Millard case above, it was held
that:
if it appeared to the defence that the plea had been entered in error or that
the appellant was ignorant, the appellant was entitled to withdraw the plea.
ADMISSION OF GUILTY PROCEDURE
This procedure is not available as a matter of right but is only available to an accused at the discretion
of the police and is only applicable to a certain category of offences (usually those that are fineable).
This procedure is found under section 221 of the CPC which basically provides that a person who has
been summoned and arrested by the police or who has been informed of the decision by the police to
indict or charge him may make an admission to police.283
274
see the cases of R v Wolomosi Phiri (No.2) 5NRLR 187 and The People v Banda (1972) ZR 307
The People v Mwaba (1973) ZR 271
276
(1979) ZR 168
277
(1998) ZR 52
278
Mwaba v The People (1974) ZR 264
279
The People v John Kapalu Kanguya (1979) ZR 288
280
DPP v Lameck Steven Tembo (1989) ZR 34
281
The People v Chooto Lala (1974) ZR 201
282
Tito Manyika Tepula v The People (1981) ZR 304
283
see First Schedule to CPC
275
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The case of Mushunga v The People284provides the procedure in the following ways:
The procedure of guilty plea under the admission of guilt system must be
strictly followed. The statement of facts should be in a correct prescribed form
and it should be signed. After signing an admission of guilt form the accused
is required to pay a deposit which can be refunded upon acquittal.
The accused person has an option of giving up his property as security in place of money. This money
is not the maximum, the difference may be refunded or there maybe need of top up. Once admitted, the
accused person has an option of turning up in court. He also has a right to change or withdraw his plea
and to appeal against the conviction.285
Section 221 (1) provides that:
The provisions of this section shall not applya) where the accused person is a juvenile within the meaning of the Juveniles
Act; or
b) in respect of such offences or classes of offence as the Chief Justice may
specify by statutory notice.
PLEA OF INSANITY
The plea of insanity comes about through two avenues:
a) the person who is insane at the time he is brought to trial; and
b) the person who was insane at the time committed the offence.
In Khupe Kafunda v The People286 it was held that there is a fundamental difference between a decision
as to an accused person’s mental capacity at the time of the trial and his mental condition at the time of
the offence: the first relates to a fair trial while the other relates to criminal responsibility. In the first
scenario, an enquiry is made in accordance with section 160 of the CPC and this relates to provisions
of fair trial. The procedure to follow is laid down under sections 161 and 163 of the CPC. And by
section 165 if the accused is treated he is brought back to stand trial which starts de novo. Normally,
the court enters a plea of not guilty if found not suitable to stand trial and proceeds to hear evidence. If
overwhelming he is sentenced to serve at the president’s pleasure and if healed he returns to court to
stand trial. If, on the other hand, evidence is not overwhelming not to lead to a conviction he is acquitted.
In The People v Mwaba,287 Scott J. opined that:
Where a question of insanity arises, it is essential for a magistrate to follow
the procedure which is set out in the CPC. The first question to be decided is
whether the accused is capable of making his defence at the time he appears
before the court. A second question may arise at a later stage as to whether
the accused was insane at the time of commission of the offence.
284
(1968) ZR 85
Mukubesa v The People (1976) ZR 78
286
(2005) ZR 31
287
(1973) ZR 271
285
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The inquiry (under section 160) should normally take the form of an
examination of witnesses who can speak as to the present mental condition of
the accused, including at least one qualified medical practitioner who has
had an opportunity of examining him.
The second scenario relates to criminal liability and culpability. The accused has to plead the defence
on their own volition to show on a balance of probabilities that they were insane at the time of
commission of the offence.288 After successfully pleading this defence, he will be found not guilty by
reason of insanity and sentenced to serve at the President’s pleasure and if he heals he is set free and
goes home.
SUBMISSION OF CASE TO ANSWER
Section 206 of the CPC provides that:
If, at the close of the evidence in support of the charge, it appears to the court
that a case is not made out against the accused person sufficiently to require
him to make a defence, the court shall dismiss the case, and shall forthwith
acquit him.
In the People v Japau289 it was stated that:
there is a case to answer if the prosecution evidence is such as that a
reasonable tribunal might convict upon it if no explanation were offered by
the defence. A submission of no case to answer may be properly upheld if an
essential element of the alleged offence has not been proved, or when the
prosecution evidence has been so discredited by cross examination, or is so
manifestly unreliable, that no reasonable tribunal could safely convict on
it.290
In a judicial review case involving The People v The Principal Resident Magistrate Ex Parte Faustin
Kabwe and Another291 it was stated that:
there is no requirement under section 206 of the CPC that the court must give
reasons for acquitting an accused person. If the court finds an accused person
with a case to answer, it must appear to the court that a case has been made
out against the accused. A finding of no case to answer is based on the court’s
feelings or impressions and appearance of the evidence. But above all, the
finding of a prima facie case is not a final verdict. Magistrates are not obliged
to give reasons for rejecting submission of no case to answer.
288
Sections 160, 167 and 164 apply.
(1967) ZR 95
290
followed in The People v Winter Makowela and Another (1979) ZR 290
291
(2009) ZR 170
289
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CASE STATED
Section 341of the CPC provides that:
After the hearing and determination by any subordinate court of any
summons, charge, information or complaint, either party to the proceedings
before the said subordinate court may, if dissatisfied with the said
determination, as being erroneous in point of law, or as being in excess of
jurisdiction, apply in writing, within fourteen days after the said
determination, to the said subordinate court to state and sign a case setting
forth the facts and grounds of such determination, for the opinion of the High
Court...
A subordinate court can only state a case after trial is completed.292 The only basis on which a case can
be stated is that the subordinate court’s determination was erroneous in law, or was in excess of the
jurisdiction of the court and cannot be used to challenge the court’s findings of fact.293
REVIEW
Review is one of the ways in which the High Court exercises supervisory jurisdiction over subordinate
courts. The others being appeal, case stated, committal and confirmation.294 Section 337 of the CPC
provides that:
The High Court may call for and examine the record of any criminal proceedings before any subordinate
court, for the purpose of satisfying itself as to the correctness, legality or propriety of any finding,
sentence or order recorded or passed; and as to the regularity of any proceedings of any such subordinate
court.
Section 338 of the CPC sets out the powers which the High Court may exercise when the record has
been called for under section 337 or otherwise received and in the case of a conviction, the court may
confirm, vary or reverse it.295 The High Court is precluded from reviewing a case if there was an
acquittal.296 In DPP v S.I. Limbada and Company (1964) Limited297 it was stated that it is entirely within
the discretion of the court either to deal with a matter on review or by way of appeal. And in the case
of Gift Mulonda v The People298 the Supreme Court held that:
On review, a High Court judge cannot enhance a sentence and hand down a
greater sentence, outside the jurisdiction of the trial magistrate. The High
Court can only increase up to the maximum that a trial court can impose.
292
Mufaya Mumbuna v The People (1984) ZR 66 (SC) and Chisanga v The People (1973) ZR 4 (CA)
The People v Henry Kapoko and Others (2010) 2 ZR 22
294
Mwanza v The People (1976) ZR 154 (HC)
295
ibid
296
The People v Mwiya Lubasi (1981) ZR 310 (HC)
297
(1980) ZR 52 (HC)
298
(2004) ZR 135 (SC)
293
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SENTENCING
a) Principles of Sentencing
The principles of sentencing where elaborately discussed by Law, CJ in the case of R v Nsokolo299 as
follows:





the intrinsic value of the subject matter;
the antecedents of the accused;
the youth of the accused;
the conduct of the accused at his trial, particularly with regard to his plea; and
the prevalence of the particular crime in the community.300
b) Mitigating Factors
The following may be considered as mitigating factors, that is, those factors that the court may take into
consideration in reducing the sentence to be meted on an accused person. Mitigating circumstances are
those as do not constitute a justification or an excuse for the offence in question, but which in fairness
and mercy, may be considered as extenuating or reducing the degree of moral culpability. 301 Some of
these include:






The age and youth of the offender are mitigatory factors that ought to be taken into account as
young people are usually inexperienced hence likely to offend and imprisonment should be of
the last resort when dealing with young persons.302
Hardship to family and dependents and to the accused himself is an inevitable consequence of
criminal conviction, and according should not be considered in imposing a sentence.303
Prison conditions are never considered to be a mitigating factor.304
Ill-health of the convicted person should normally not be considered in imposing a sentence,
but only on exceptional circumstances may the court show mercy.305
A plea of guilty by an accused person must be taken into consideration when sentencing unless
exceptional circumstances such as being caught red-handed when he has no alternative exist.306
Unless the case has some extraordinary features which aggravate the seriousness of the offence,
a first offender ought to receive a minimum sentence.307
c) Aggravating Factors
299
2NRLR 85
see Hatchard, J. and Ndulo, M. (1994). Readings in Criminal Law and Criminology in Zambia. Lusaka:
Multimedia Publications at pp.98-100
301
Black’s Law Dictionary at p.1002
302
Chisala v The People (1975) ZR 239 (SC)
303
Jutronich and Others v The People (1965) ZR 9 (CA) and Paul Zulu v The People HPA/50/2010
304
Van Zyl v The People (1965) ZR 140 (CA)
305
Zulu v The People (1974) ZR 58 (SC)
306
Benua v The People (1976) ZR 13 (SC); Ng’uni v The People (1976) ZR 168 (SC) and Moses Mwiba v The
People (1971) ZR 131 (CA)
307
Solomon Chilimba v The People (1971) ZR 36 (CA) and Kalobwe v The People (1968) ZR 97 (HC)
300
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Aggravating factors are any circumstance attending the commission of a crime which increases guilt or
enormity or adds to its injurious consequences, but which is above and beyond the essential constituents
of the crime itself.308 The following are some examples:






Infecting a victim with a sexually transmitted disease may be an aggravating factor in sexual
offences.309
Age of the victim in sexual offences whereby the younger the victim the severe the sentence.310
Excessive use of violence in cases of robbery or assault can aggravate.311
Record of past or previous convictions will entitle a court to deny an accused person leniency.312
The scale and sophistication of a particular crime.313
Where an accused has made a commercial gain in cases of stock theft.314
JUDGEMENT
A judgement in criminal procedure comprises both the conviction and the sentence, and until the
sentence is passed the judgement is not complete.315 Section 169 of the CPC provides that:
(1) The judgement in every trial in any court shall, except as otherwise expressly
provided by this Code, be prepared by the presiding officer of the court and
shall contain the point or points for determination, the decision thereon and
the reasons for the decision, and shall be dated and signed by the presiding
officer in open court at the time of pronouncing it.
(2) In the case of a conviction, the Judgement shall specify the offence of which
and the section of the Penal Code or other written law under which the
accused person is convicted, and the punishment to which he is sentenced.
(3) In the case of an acquittal, the judgement shall state the offence of which the
accused person is acquitted and shall direct that he be set at liberty.
10.16 ACTIVITIES
1. Describe the procedure where one is insane at trial and where one was insane at the time of
committing offence but sane at trial?
2. What is meant that plea should be unequivocal? Can one withdrawal a plea of guilty and enter
that of not guilty and vice versa?
10.17 SUMMARY
In this Unit we discussed some of the most important aspects of the trial procedure in
Zambia from plea to judgement; withdraw of plea and plea of insanity as well as principles
of punishment among others.
Black’s Law Dictionary at p.65
Sole Sikaonga v The People (2009) ZR 192
310
Charles Mwansa v The People (2008) 2 ZR 53 (SC)
311
Gasanaheu v The People (2010) 2 ZR 132
312
Kalobwe v The People (1968) ZR 97 (HC)
313
Vefeen Fofana alias Mutombo wa Mutombo v The People (1990-92) ZR 167 (SC)
314
Nasilele v The People (1972) ZR 197 followed in Simon Mbozi v The People (1987) ZR 101 (SC)
315
R v Maclean 1961 R & NLR 157; Bruno Tembo v The People HNA/3/2011
308
309
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UNIT ELEVEN
PROCEEDINGS AGAINST JUVENILES
11.1 INTRODUCTION
A juvenile is a girl or boy who has not yet attained the age of nineteen while one who is between
the age of 19 and 21 is a juvenile adult.316 All juveniles are suppose to be tried in juvenile
courts which is the subordinate court reconstituting itself as a juvenile court.317 No charge against a
juvenile shall be heard by a subordinate court which is not a juvenile court.318 And the High Court has
no jurisdiction to hear a case which section 64 of the Juveniles Act requires to be heard in a juvenile
court.319
11.2 AIM
The aim of this unit is to introduce students to the criminal procedure and practice in respect
of juvenile offenders.
11.3 OBJECTIVES
At the end of this unit you should be able to do the following:



Define juvenile and juvenile courts.
Examine the practice and procedure in respect of juveniles.
Discuss the important aspects of juvenile justice.
11.4 TIME REQUIRED
Minimum amount of time on the unit is 3 hours.
11.5 REFLECTION
Think of the consequences of the indiscriminate punishment of juveniles and adults
as regards their wellbeing.
316
section 2 of the Juveniles Act, Chapter 53 of the Laws of Zambia
section 63 of the Juveniles Act
318
Chipendeka v The People (1969) ZR 82
319
Siwale and Another v The People (1973) ZR 182
317
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PRACTICE AND PROCEDURE OF JUVENILE COURTS
Zambia has no permanent juvenile courts but as stated above, it is the subordinate court that
reconstitutes itself as a juvenile court. The starting point in the practice and procedure in juvenile courts
is to declare that the court is sitting as a juvenile court.320 Then the second step is found under section
116 of the Juveniles Act. This provision imposes a duty on the court to ascertain the age of a juvenile
on his appearing before the court charged with an offence.321 The process of ascertaining the age of a
juvenile is not prescribed but it can be done by means such as ocular observation and medical
examination processes such as x-ray.322
In Davies Mwape and Another v The People323 it was held that:
under section 118 (1) of the Juveniles Act, it is sufficient for a court to rely
solely on ocular observation, and if it appears that an offender is a juvenile,
an inquiry must be made to ascertain his exact age for the purpose of
considering the powers of the court in relation to such offender. However,
where by ocular observation the offender is obviously an adult, the court is
not put on its inquiry. There is no specific provision in the Juveniles Act
setting out the precise procedure which should be adopted to ascertain the
age of accused persons.
It is important to determine the question of age at the earliest moment as procedures in the Juveniles
Court are different from those of the other courts, such as:
i). The juvenile offender does not sit in the dock and proceedings are held in camera hence not
open to the public as per section 119 (2) of the Juveniles Act.324
ii). Members of the public are excluded from attending juvenile court as per section 119 (1) of the
Juveniles Act as an exception to section 76 of the CPC.
iii). The attendance wherever possible, during all stages of the proceedings, of the parent or
guardian of a juvenile accused. 325 Attendance can be dispensed with in the following
circumstances:
 parent or guardian cannot possibly be located or found;
 parent or guardian do not reside within a reasonable distance to trial court and the trial
magistrate comes to a conclusion that there attendance is not reasonable;
 that unreasonable delay would be occasioned in trying to secure parent’s or guardian’s
attendance;
320
Siwale case supra
Chipendeka case supra
322
Musonda v The People (1976) ZR 218 (SC)
323
(1979) ZR 54
324
see also section 119 (1) of the Juveniles Act and section 76 of the CPC
325
In Chalimbana v The People (1977) ZR 282 (SC) it was held that the Juveniles Act under section 127 stresses
the importance which the legislature has attached to the attendance of parents or guardians to the juvenile.
The important consideration is that if these provisions are not complied with the juvenile may be prejudiced.
In The People v Alfred Mumba (1978) ZR 405 (HC) it was held that section 127 of the Juveniles Act is not
restricted to proceedings before the Juvenile Courts but must be complied with in all courts before which
juveniles appear.
321
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iv). The charge is read out in accordance with section 64 (2) of the Juveniles Act and the juvenile is
asked whether or not he agrees with the charge and not whether he pleads guilty or not guilty. The
procedure that follows is the same as that under ordinary proceedings such as examination of witnesses.
v). Parents or guardians are allowed to asked questions on behalf of unrepresented juveniles and so is
the trial magistrate who is allowed to ask not properly put by the juvenile and to rephrase statements;
vi). Once evidence is presented, the juvenile at the end of proceedings, is either found guilty or not
guilty and not that he is convicted.
It is important to note that when juveniles are found guilty, imprisonment is a punishment of last resort
as section 72 of the Juveniles Act was meant to prevent juveniles from going to prison.326 The provisions
of section 72 apply even to cases where a statutory minimum sentence is prescribed as to any other case
as juveniles should only be sent to prison unless they cannot be dealt with in any other manner.327 The
rationale for this was stated by the Supreme Court in the case of Mvula v The People328 in which it was
held that:
the object of the Juveniles Act is that as far as possible, juveniles should not
normally be sent to prison as provided under section 72 (2). The reason for
this is simple, that if juveniles come into contact with adult hardened
criminals chances are high that they too will themselves become hardened
criminals.
Meanwhile, in Chisala v The People329, the Supreme Court stated that:
Once the court decides that a juvenile offender cannot be suitably dealt with
otherwise than by sending him to prison it is obligatory to impose the
statutory minimum sentence for that offence in question. The question of the
court is to choose the least suitable method of dealing with an offender, it is
entitled to weigh the unsuitability of a long prison sentence against the
unsuitability of a reformatory order taking into account the circumstances of
the offence, the antecedents of the juvenile and all other relevant factors, and
to decide which is the less unsatisfactory of the two unsatisfactory courses.
The other important factor to note when sentencing a juvenile is that the age of the offender at the time
of the commission of the offence should be the age to take into account for the purpose of sentencing.
In Steven Nyoni v The People330 it was held that:
a person who is no longer a juvenile who had committed an offence when he
was a juvenile should be tried as an adult in the appropriate court; but for
the purposes of sentencing he should be treated as a juvenile.
326
Siwale case supra
ibid
328
(1976) ZR 80 (SC)
329
(1975) ZR 239 (SC)
330
(1987) ZR 99 (SC)
327
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CIRCUMSTANCES IN WHICH JUVENILES CAN BE TRIED AS ADULTS
The following are exceptions to the practice and procedure for trying juveniles as discussed above. That
is to say when juveniles may be tried other than in the juvenile courts:
a) When a juvenile is charged with homicide (murder, manslaughter, infanticide and causing death
by dangerous driving) or attempted murder he will be tried in the ordinary and competent court
as Juvenile Courts have no jurisdiction.331
b) When a juvenile is charged with an adult or any person who is not a juvenile he will be charged
in the ordinary and competent court.332
11.8 ACTIVITIES
1. What is the difference between a juvenile and a juvenile adult? Why is it important to
understand the difference?
2. Trying a juvenile without parents or guardians being present renders the trial defective. Discuss
11.9 SUMMARY
In this Unit we have seen that juveniles, that is to mean persons below the age of 19, are
to be tried in juvenile courts which are subordinate courts reconstituting as such except
when charged with homicide or jointly with any person who is not a juvenile.
331
332
section 64 of the Juveniles Act and section 11 of the CPC
section 65 of the Juvenile Act
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UNIT TWELVE
IMPORTANT COMPONENTS OF CRIMINAL PROCEEDINGS
12.1 INTRODUCTION
Criminal trials are always supported by other important components which include Inquests,
Trial-Within-A-Trial, Voire Dire and Preliminary Inquiries.
12.2 AIM
The aim of this unit is to introduce students to other important components that support
criminal proceedings.
12.3 OBJECTIVES
At the end of this unit you should be able to do the following:




Describe the procedure and rationale for inquests.
Examine the importance of trial within a trial.
Discuss the mechanism of preliminary inquiry as it relates to criminal proceedings.
Explain the essence and procedure of voire dire.
12.4 TIME REQUIRED
Minimum amount of time on the unit is 3 hours.
12.5 REFLECTION
Think of what the courts should before it relies on the sole evidence of a 7 year
old.
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12.6 INQUESTS
Inquests are provided for under the provisions of the Inquests Act, Chapter 36 of the Laws of Zambia.
Section 3 (1) and (2) of the Act provides that:
(1) Every magistrate having the authority under the provisions of the Subordinate
Courts Act to hold a subordinate court of the first, second or third class may
hold inquests under this Act.
(2) The Judicial Service Commission may, by gazette notice, appoint any other
fit person to hold inquests under this Act within the area specified in such
notice.
By the above, all magistrates can hold inquests hence coroners.333 These are supplemented by any other
coroners appointed by the Judicial Service Commission. Inquests are held, as provided for by section 4
of the Act:
whenever a coroner is credibly informed that the body of a deceased person
is lying within his jurisdiction, and that there is reasonable cause to suspect
that such person has died either a violent or an unnatural death, or in prison
or in police custody, or in any place or circumstances which, in the opinion
of the coroner, makes the holding of an inquest necessary or desirable, such
coroner shall, except as otherwise provided in this Act, hold an inquests on
such body as soon as is practicable.
In arriving at the above, a coroner may order post-mortem,334 order exhumation of body335 and order
postponement of trial or cremation336 among other powers. The procedure at an inquest is laid down
under Part V, which is sections 16 to 33, of the Act. Most importantly, section 28 provides that:
(1) The proceedings and evidence at an inquest shall be directed solely to
ascertaining the following matters:
a) who the deceased was;
b) how, when and where the deceased came by his death;
c) the persons, if any, to be charged with murder, manslaughter, infanticide, or
causing death by the reckless or dangerous driving of a motor vehicle, or of
being accessories before the fact should the coroner find that the deceased
came to his death by murder, manslaughter, infanticide, or such driving.
d) the particulars to the time being required by any written law to be registered
concerning the death.
In the case of Kambarange Mpundu Kaunda v The People337 it was held, inter alia, that:
When a coroner makes an order, it is not directed to the DPP, but rather to
police authorities who should take the initial steps to charge the person or
persons named with any specific offences. Thereafter, the DPP has discretion
333
section 2 of the Act defines a coroner as any person empowered to hold inquests under the Act
section 14
335
section 7
336
section 11
337
(1990-92) ZR 215
334
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to prosecute for the offence specified or for any other offences disclosed, or
not prosecute at all.
TRIAL-WITHIN-A-TRIAL
A trial-within-a-trial is held to determine the voluntariness or otherwise of a confession statement given
by an accused.338 In Mate and Others v The People339 it was held that a trial within a trial is only held
to determine the issue of voluntariness. It was added that:
an allegation that no statement was made despite beatings does not raise the
issue of voluntariness but raise is question of credibility as one of the general
issues.
Thus, a trial within a trial is held on the side on the main trial and is held immediately an accused person
raises an objection as to the voluntariness of the confession statement. 340 In deciding whether a
statement was made by an accused person to the police is admissible, the test which a court must apply
is not whether the Judges’ Rules have been infringed, but whether the prosecution has affirmatively
established that the statement was made freely and voluntary.341 In the case of Kasuba v The People342
it was held that:
Particularly in the case of an unrepresented accused, when a witness is about
to give evidence as to an alleged confession the court should inquire whether
the accused objects to the admission of that evidence. The failure to inquire
is an irregularity, which can be cured if it can be shown that there was no
prejudice.343
The main trial stops and the trial within a trial proceeds. The burden of proving the voluntariness of a
confession statement lies on the prosecution.344 It should be held at any point even after the prosecution
has closed its case.345
VOIRE DIRE
A voire dire is different from a trial within a trial though usually used interchangeably wrongly. A trial
within a trial is concerned with the voluntariness of confession statements while a voire dire is
concerned with evidence of children.346 The main issue of a trial within a trial is the determination of
whether a statement was obtained or given by the accused person voluntarily. 347 In Sakala v The
People348 it was stated that:
Unless a voire dire is carried out, a trial court cannot be satisfied that a child
is fit to be sworn, or even to give evidence unsworn349, and unless a voire dire
338
Kangachepe Mbao Zondo v The Queen (1963-64) Z and NRLR
(2010) 3 ZR 191
340
Vilongo v The People (1977) ZR 422
341
Kangachepe Mbao Zondo case supra
342
(1975) ZR 41
343
see also Hamfuti v The People (1972) ZR 420
344
Ndakala v The People (1980) ZR 180
345
Zulu v The People (1973) ZR 326
346
Ibid
347
R v Khayatya (1963-64) Z and NRLR 84
348
Sakala v The People (1972) ZR 150
349
the position has changed by the Juveniles (Amendment) Act No. 3 of 2011 with the new section 122
requiring a child of tender age to give only sworn evidence
339
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is recorded an appellate court cannot be satisfied that the trial court has
appreciated and carried out its duty.
PRELIMINARY INQUIRIES
A Preliminary Inquiry is provided for under section 223 of the CPC. Section 223 (1) provides that:
Whenever any charge has been brought against any person of an offence not
triable by a subordinate court, or as to which the High Court has given an
order or direction under section ten or eleven, or as to which the subordinate
court is of opinion that it is not suitable to be disposed of upon summary trial,
a preliminary inquiry shall be held, according to the provisions hereinafter
contained, by a subordinate court, locally and otherwise competent.
In dealing with cases triable by the High Court, if a subordinate thinks that waiting for a certificate of
committal for summary trial would occasion injustice to an accused person, it can either order the
immediate holding of a preliminary inquiry or order the summary discharge of the accused person for
want of prosecution.350 The subordinate court cannot convict or acquit or substitute and convict for a
lesser charge on conclusion of a preliminary inquiry as it has no jurisdiction to try that matter serve to
hold an inquiry.351 Section 280 of the CPC empowers a subordinate court to discharge an accused person
if at the close of the inquiry the evidence is insufficient to commit the accused to trial.352
The procedure and practice in a preliminary enquiry is the same as that in the main trial with the taking
of evidence and examination of witnesses.353
12.10 ACTIVITIES
1. How is a voire dire different from a trial within a trial?
2. Can a coroner direct law enforcement agencies to prosecute a suspect for murder?
12.11 SUMMARY
In this Unit we looked at the various components that may arise during trial. A preliminary
inquiry is held by the subordinate court before committing a person to trial before the High
Court which has jurisdiction to try the matter. The other is a voire dire which is an inquiry
into the intelligence of a child to give evidence as opposed to a trial within a trial which
is primarily concerned with the determination of the voluntariness of confession
statements. We also looked at inquests which are held by magistrates and other persons appointed by
the Judicial Service Commission, usually called coroners, to establish among others, the cause of death
of a victim of either a violent or suspicious death.
350
The People v Dauti Tiyeseni Phiri (1985) ZR 201 (HC)
R v Changala and 2 Others 2NRLR 30; Affirmed in Phiri above
352
The Petrol Zambwela (2002) ZR 145
353
see sections 223 to 236 of CPC on procedure
351
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UNIT THIRTEEN
PUNISHMENT
13.1 INTRODUCTION
Criminal trials either result in convictions or acquittals. And if a conviction is secured by the
prosecution, the courts are mandated by the law to impose penal sanctions on the offender for
a variety of reasons. This Unit will discuss the various punishments available under the law in Zambia.
13.2 AIM
The aim of this unit is to introduce students to penal regime in Zambia by discussing an
array of punishments at the disposal of the courts.
13.3 OBJECTIVES
At the end of this unit you should be able to do the following:


Identify the various punishments available in Zambia.
Distinguish the so identified punishments from each other.
13.4 TIME REQUIRED
Minimum amount of time on the unit is 3 hours.
13.5 REFLECTION
Imagine a criminal offender has been convicted of an offence by a competent
court. What next?
13.6 FORMS OF PUNISHMENT
Section 24 of the Penal Code provides the following list of kinds of punishment available in Zambia
for criminal offenders:
a) Death
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The death penalty or capital punishment is reserved for very serious offences such as treason,
aggravated robbery and murder. Death sentence shall be carried out by directing that the convict be
hanged by the neck until he is dead.354 A death sentence shall not passed on persons under the age of
eighteen355 and pregnant women.356
b) Imprisonment
Imprisonment may be with or without hard labour in the discretion of the court unless the imposition
of imprisonment only with hard labour is expressly prescribed by law.357 A person convicted of a felony,
other than manslaughter, may be sentenced to pay a fine instead of imprisonment.358 A person convicted
of manslaughter or a misdemeanour may be sentenced to pay a fine in addition to or instead of
imprisonment.359 Imprisonment may be for life or a shorter term.360
c) Corporal Punishment
Corporal punishment is no longer allowed as a form of punishment in Zambia. The Supreme Court in
the case of Kalebu Banda v The People361 it was held that corporal punishment amounted to torture,
degrading and inhuman treatment and hence in violation of the provisions of Article 15 of the
Constitution of Zambia.362 Thus, the provisions under sections 24 (c) and 27 of the Penal Code are bad
law.
d) Fine
Fines are provided for by section 28 of the Penal Code and in the case of R v Evaristo363, it was held
that:
that a court, if it decides in any particular case to impose a fine, should before
fixing the amount of it have regard to a number of considerations which are
relevant, including amongst them the means of the accused to pay the fine,
for, in accordance with section 28 (1) of the Penal Code, fines must not be
excessive.
e) Forfeiture
Forfeiture leads in property used in or realised from criminal activities or which are a subject of criminal
activities to be forfeited to the state. 364 Depending on the statutory provisions, forfeiture is either
354
section 25 (1) of the Penal Code
section 25 (2)
356
section 25 (4); see section 306 of the CPC on procedure as regards pregnant women
357
section 26 (1)
358
section 26(3)
359
section 26 (4)
360
section 26 (2)
361
(1977) ZR 169 (SC)
362
Act No. 18 of 1996
363
(1958) R and NRLR 929
364
section 29 of the Penal Code
355
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discretionary or mandatory. For example it is mandatory under sections 34 and 75 of the Narcotic and
Psychotropic Substances Act and the Anti-Corruption Act respectively.365
In Jonathan Mwiinga v The People366 it was held that:
The order for forfeiture of the firearm was improper since the owner was not
given a right to be heard before the order was made.
By the above holding, it is clear that a forfeiture order cannot take place without giving the owner of
the property a hearing.
In Anort Sondoyi v The People367 it was held that:
Neither section 179 nor 180 of the CPC empowers the court to order the
seizure of the property of a convicted person which has no connection with
the offence of which he has been convicted in reimbursement of money or
property stolen from the complainant.
f) Payment of Compensation
Section 30 of the Penal Code provides that:
In accordance with the provisions of section one hundred and seventy-five of
the Criminal Procedure Code, any person who is convicted of an offence may
be adjudged to make compensation to any person injured in his offence. Any
such compensation may be either in addition to or in substitution for any other
punishment.
The case of R v Balenje368 is elaborate on the issue of injury and the award of compensation. In this
case, it was held that:
“Injury” in section 175 of the CPC has the same meaning as injuria and it
covers any tortious act, and is not limited to physical injury. Injury implies
material loss and personal injury. That if compensation is to be awarded for
a tortious other than one involving material loss or personal injury (e.g.
defamation), it must be by way of a fine out of which the compensation must
be ordered to be paid. The alternative method of awarding compensation is
under section 175 of the CPC which empowers a court to award
compensation out of a fine. The only other point is whether or not substantial
compensation would be recoverable by civil suit.
In R v Telesa Machiye369 it was held that:
365
see also provisions of the Forfeiture of Proceeds of Crimes Act No. 19 of 2010, especially sections 12 and 80
(1981) ZR 423; this case followed the holding in The People v Mwalilanda (1971) ZR 166
367
(1977) ZR 148 (SC)
368
4 NRLR 1
369
4 NRLR 221
366
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The amount of compensation awarded under section 175 of the CPC should
not exceed the amount of special damage incurred by the complainant. The
awarding of damages under section 175 of the CPC is not a proper
procedure.
Thus, section 30 of the Penal Code is subject to section 175 of the CPC.
g) Finding Security To Keep The Peace
Finding security to keep the peace and be of good behaviour, or to come up for judgement is provided
for under section 31 of the Penal Code. This form of punishment is only available to persons convicted
of an offence not punishable by death. This comes in lieu of imprisonment by that person’s executing a
bond, in his own recognizance, with or without sureties, to be of good behaviour and to keep the peace.
In the case of JSBE Thorne v The King370 it was held that:
That on a conviction for felony, instead of imposing a term of imprisonment,
the court can order the accused to enter into a bond to be of good behaviour.
In addition to entering into the bond the accused can also be fined.
h) Deportation
There are two forms of deportation orders, that is, deportation out of the country and deportation within
the country.371 The first is applicable to non-citizens while the second is applicable to Zambian citizens.
The case of Nebukadneza Occo v The People372 is illustrative of when deportations outside the country
can happen. In this case, it was held that:
although the appellant had enjoyed the status of an established resident, he
was not immune from being a subject of a deportation order, and as a noncitizen once he was convicted of a criminal offence the prosecution was duty
bound in terms of section 33 of the Penal Code to forward particulars of the
conviction to the Minister in terms of section 26 (1) of the Immigration and
Deportation Act, and it was mandatory on the part of the Minister at the
expiration of the sentence to sign a deportation order.
On the other hand, the case of R v Paison Chungu373 discusses deportations within the country. In this
case, the prisoner, who had many previous convictions, was sentenced to four months imprisonment
with hard labour and was recommended for deportation to his village in Northern Rhodesia for 3 years.
It was held that:
the fundamental object of deportation within the territory is to give an
accused the opportunity to reform in the quietness and peace of a rural
community. It is not suitable for a recidivist past all hope of reformation. In
my opinion, it is more conducive to public security that a man of this type
370
4 NRLR 260
sections 33 and 34 of the Penal Code
372
(1979) ZR 112
373
5 NRLR 682
371
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should be under the observation of the police, where he can be properly dealt
with.
Basically, this type of deportation is made by the magistrate or judge as the case may be to the President.
The other forms of punishment include payment of probation order, damages, costs, discharge,
cancellation of drivers’ licence, placing offender under police supervision and restitution. Briefly, these
are discussed below:
a) Probation Order
This order comes about through the provisions of section 3 of the Probation of Offenders Act, Chapter
93 of the laws of Zambia. The order applies to both adults and juveniles alike but practice has shown
that it only extends to adults for minor offences. And that adult has to show willingness to comply with
the order or else the courts will decline but for juveniles it can be imposed without their consent. A
person who is subject of a probation order has to understand the consequences of failure to comply
which usually results in imprisonment.374 A probation order is a conviction as held in Willie v R.375
Section 3 provides that:
(1) Where a court by or before which a person is convicted of an offence, not
being an offence the sentence for which is fixed by law, is of the opinion that,
having regard to the youth, character, antecedents, home surroundings,
health or mental condition of the offender, or to the nature of the offence, or
to any extenuating circumstances in which the offence was committed, it is
expedient to do so, the court may, instead of sentencing him, make an order,
hereinafter in this Act referred to as a “probation order” , requiring him to
be under the supervision of a probation officer for a period to be specified in
the order of not less than one year but nor more than three years.
(2) Before making a probation order, the court shall satisfy itself that the offender
understands the effects of the order, including any additional requirements
proposed to be inserted therein under subsections (2) and (3) of section four,
and that if he fails to comply therewith or commits another offence during the
probation period he will be liable to be sentenced for the original sentence;
and if the offender is not less than nineteen years of age that the court shall
not make the order unless he expresses his willingness to comply with the
requirements thereof.
b) Order For Parent or Guardian To Pay Damages
Section 73 (1) (f) and (g) of the Juveniles Act provides that:
(1) Where a juvenile charged with any offence is tried by any court, and the court
is satisfied of his guilt, the court shall take into consideration the manner in
which, under the provisions of this or any written law, the case should be
dealt with, namely:
374
375
sections 4, 5, 7 and 8 of the Probation of Offenders Act
(1961) R and N 1027
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(f).by ordering the offender to pay a fine, damages or costs;
(g). by ordering the parent or guardian of the offender to pay a fine, damages
or costs.
c)
Order To Pay Costs
Section 32 of the Penal Code provides that:
A court may order any person convicted of an offence to pay costs of and
incidental to the prosecution or any part thereof.376
The case of R v CJ Broodryk377 raised important issues to note as regards payment of costs when it held
that:
An order to pay the costs of the prosecution must not be made merely to
increases punishment but must be to reimburse the prosecutor for sums
actually incurred in the prosecution. The object of ordering a convicted
person to pay costs is to reimburse the prosecutor for amounts expended on
the prosecution. The natural limit which exists as to ordering costs of
proceedings is an amount up to the sum actually incurred.
d) Order of Discharge
Section 41 of the Penal Code provides for absolute and conditional discharge and allows a court to
discharge a person who has been convicted, either absolutely or conditionally. The case of The People
v Zimba378 discusses this order when the High Court stated that:
The order for discharge under section 41 (1) of the Penal Code can only be
made after a conviction or a finding of guilty in the case of a juvenile offender.
The magistrate’s order was invalid in that he imposed a condition that the
juvenile offender commits “no such offences”. The only condition which may
be imposed is that the offender commits no offence during the period of a
conditional discharge. This does not affect the person’s right to appeal and
an order discharging the offender absolutely or conditionally shall not be
deemed to be a conviction for any purpose other than the purposes of the
proceedings in which the order is made and of any proceedings which might
be taken against the offender under section 42 of the Penal Code.
The order is conditional if it imposes conditions to be adhered to, usually, within 12 months and is
absolute if the accused is set free and no condition is attached. The usual condition is that the accused
commits no offence during that period. A court, however, may not discharge a person if the offence
committed attracts a mandatory minimum sentence.
e) Order for Cancellation of Drivers’ License
376
see also section 172 (1) of the CPC
4 NRLR 87
378
(1976) ZR 86 (HC)
377
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This is usually for offences under the Road Traffic Act which allows courts to cancel or suspend a
driver’s licence.379 The order can be in addition to a term of imprisonment or a fine. This order may
also be partial in that a court can order that a PSV Drivers’ Licence be revoked to any of the ordinary
classes. It might also order that an unlicensed driver convicted of a traffic offence be ineligible to obtain
a driver’s licence for a period of years.
f) Restitution Order
Restorative Justice is traditional to the Zambian customary law whereby an offender is required to make
good to the victim the loss suffered. Sections 179 and 180 of the CPC allows for a court to order for the
return of stolen property to its original owner.380
g) Order To Place Under Police Supervision
This order is provided for under section 317 (1) of the CPC which provides to the effect that:
When any person, having been convicted of any offence punishable with
imprisonment for a term of three years or more, is again convicted of any
offence punishable with imprisonment for a term of three years or more, the
court may, if it thinks fit, at the time of passing sentence of imprisonment on
such person, also order that he shall be subject to police supervision, as
hereinafter provided, for a term not exceeding five years from the date of his
release from prison.381
13.7 ACTIVITIES
1. On which categories of persons is the death penalty excluded?
2. Discuss the different kinds of deportation as a form of punishment.
13.8 SUMMARY
In this Unit discussed the various forms or kinds of punishment available to the courts to
slap on criminal offenders. We have discussed the nature of those forms of punishments
and how some came about.
379
section 75
see the case of Anort Sondoyi v The People above where it was held that neither sections 179 and 180 of
the CPC empowers the court to order the seizure of the property of a convicted person which has no
connection with the offence of which he has been convicted in reimbursement of money or property stolen
from the complainant.
381
see section 318 of the CPC on requirements the court may need from persons subject to police supervision
380
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