When we do wrong we are punished; depending on our error and the generation you were born in the punishment can range from no food to a beating or what our children know – being grounded or having their gadgets taken away. At societal level when we err and indulge in behaviour or omissions that have been classified as criminal we offend the community/society and the criminal justice system provides for punishments such as fines, imprisonment and community service.
Imprisonment is carried out in prison or correctional facilities run and managed by the State/government. Most of Zambia’s correctional and prison facilities were constructed in the 1920s to house a population of about 8,500 inmates; today Zambia’s prison population stands at over 25, 200 inmates resulting in massive overcrowding. Overcrowding in our facilities has been worsened by other challenges in the criminal justice system such as prolonged pre-trial detentions, accused person’s failure to meet bail conditions, lengthy trials and the inflexibility of sentences for some offences.
In the Penal Code and Criminal Procedure Code review the Commission received stakeholder submissions and made recommendations to address these causes/drivers of overcrowding.
Prolonged pre-trial detentions and lengthy trials: are considered some of the key causes of overcrowding and have been attributed in part to the gaps in the legal framework. In this regard the Zambia Law Development Commission (ZLDC) recommended the repeal of provisions that provide for procedures that lengthen trials such section 217 of the Criminal Procedure Code (CPC) that provides for the preliminary inquiry procedure. The Commission observed that the preliminary inquiry procedure was not only archaic and rarely resorted to but was also lengthy and expensive requiring witnesses to give evidence and be examined like in an ordinary trial.
Bail and Bond: The review established that the Penal Code (PC) and CPC provide for non-bailable offences. Section 123 of the CPC provides that any person who is arrested, detained or appears before a Court, may at any time or at any stage of the proceedings be admitted to bail upon providing a surety or sureties sufficient in the opinion of the police officer concerned or the Court to secure that person’s appearance before Court or upon meeting any other conditions imposed by the Court or the officer that may seem reasonable and necessary in any particular case.
Persons charged with murder, treason, misprision of treason or treason felony, aggravated robbery and theft of motor vehicle (unless the accused is a first offender), are not eligible to be granted bail. Stakeholders submitted that this is inconsistent with the presumption of innocence and is inconsistent with international law which provides that pre-trial detention should not be mandatory for all defendants without regard to individual circumstances.
The Commission therefore recommended that the right to have bail conditions varied should be available to all parties in a criminal trial and that an appropriate provision be inserted to provide for this in the subordinate courts.
Inflexibility of sentences (mandatory sentences): One of the criticisms levelled against our Courts is that they impose prison terms that are too long; some of these sentences are as a result of mandatory minimum sentences. Mandatory minimum sentences are sentences that impose a required minimum term of imprisonment for a specific crime – they are periods of imprisonment which the Court must impose on a person convicted for a crime no matter what the unique circumstances of the offender or the offence are. The PC provides for mandatory minimum sentences for the crimes of defilement, murder, stock theft, theft of motor vehicle and aggravated robbery. The goal of mandatory minimum sentences when they were developed was to promote uniformity and protect against possible disparities in sentencing, to increase the prison sentences for serious and violent offences and thereby act as a deterrent and reduce crime and to control judicial discretion.
The Commission therefore observed that whilst it is desirable to repeal minimum mandatory sentences, there is need to first develop sentencing guidelines that would ensure consistent and proportionate sentencing.
The Commission further recommended that archaic and colonial provisions should be removed from the statute book. These include provisions such as section 3 on the General rule of interpretation; section 34 on Deportation within Zambia; section 71 on Defamation of foreign princes; and section 73 on Piracy.
In the CPC, these include section 36 on arrest by magistrate and section 260 on Practice of the High Court in its criminal jurisdiction. The sentencing jurisdiction of Magistrates should be appropriately revised upwards for each tier of Magistrate from a term not exceeding seven years for a Magistrate of the first class to up to twenty-five years for Chief Resident Magistrate.
With regard to the death penalty the Commission observed that the decision to maintain or remove the death penalty would best be decided during the Constitutional review process.
Stay safe, social distance & mask up!
Email us: Research@zambialawdevelopment.org
Facebook: ZambiaLawDevelopmentCommission
Twitter: Zambia_law
Youtube: ZambiaLawDevelopmentCommission
Website: http://www.zambialawdevelopment.org