In 2022 the Zambia Law Development Commission concluded a project to review the Penal Code Act, the Criminal Procedure Code Act and related legislation. This review was prompted by an outcry from stakeholders in the criminal justice system who observed that criminal offences had been duplicated in different Acts and had conflicting penalties; and that the criminal legal framework in Zambia was old, archaic and inconsistent with international law and best practice.
Several issues of concern were identified in the review process. One of the key issues of concern from submissions arising from the stakeholder engagement was that in the Zambian subordinate courts, the practice is that of trial by ambush. Trial by ambush is a term that has been coined by legal practitioners to mean a trial process where no provision is made for disclosure and the accused person only gets to have sight of the evidence against them while on stand.
Disclosure is a process where parties in a matter can preview the other side’s evidence that is significant to their preparation for the case. The purpose of disclosure in criminal matters is two-fold:[1]
- to ensure that the accused knows the case to be met, and can make full answer and defence; and
- to encourage the resolution of facts in issue including, where appropriate, the entering of guilty pleas at an early stage in the proceedings.
This practice of trial by ambush is said to be very unfair as it provides for no disclosure and is in conflict with the right to a fair trial as enshrined in Article 18 in Part 3 of the Zambian Constitution.
In this two-part Article, we discuss the extent of trial by ambush in Zambia and the need for legislative reform. This week we consider what provision is made in the Republican Constitution for the enjoyment of the right to a fair trial. We also consider the state’s obligations in fulfilling the enjoyment of the right to a fair trial in line with the international and regional instruments applicable to Zambia. Next week in the final part of the Article we shall consider the nature of discovery in selected courts with different criminal jurisdictions in Zambia and conclude with a general recommendation for legislative reform.
Article 18 of the Constitution of Zambia-The Right to a Fair Trial
The Bill of Rights in Article 18 of the Constitution makes provisions to secure protection of the law:
18 (1) “If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law”.
According to the Constitution, a person arrested and charged with a criminal offence is entitled to a fair hearing. Some key features of a fair hearing are the right to be informed of the charge and in a language understood by the accused; adequate time and facilities to prepare a defence; and the right to examine the witnesses.
Aritcle18 (2) stipulates that “Every person who is charged with a criminal offence
(c) Shall be given adequate time and facilities for the preparation of his defence; and
(e) Shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution.”
Though the Constitution provides the right to a fair hearing, it does not make specific enabling legislative provisions to facilitate the full enjoyment of this right in all criminal matters. The implementation of this right would require the requisite clauses,[2] such as placing an obligation on the prosecution in all matters in the Subordinate Court,( not only in the Economic and Financial Crimes Division) to extend, provide or exchange the witness statements or exhibits which the prosecution are likely to avail before the court.
Non-disclosure has different effects on accused persons. For instance, while awaiting trial in a Magistrates Court, an accused person cannot request the state for copies of the various documents in the police docket to be released to him, to enable him to prepare his defence and instruct his lawyers effectively. This appears to be the position in the matter of the People v Paul Kasonkomona[3], where the Court dismissed the application by the defence to refer the question of whether failure by the state to provide the defence with witness statements contravened the provision of article 18(1) of the Constitution of Zambia.
Non-disclosure also results in delays in the disposal of cases. Defence lawyers are frequently left with no option but to adjourn matters when faced with complex documentary evidence to give them an opportunity to study the evidence for cross-examination. [4]
What are the State Obligations According to International and Regional Instruments?
Zambia is a party to various international and regional instruments influencing criminal legislation. In this article, instruments providing for rights to due process and a fair trial are of particular interest.
International Covenant on Civil and Political Rights(ICCPR)
The ICCPR forms part of the International Bill of Rights[5]. Zambia is a state party to the ICCPR. The provisions in Article 18 of the Constitution reflect those in Article 14 of the ICCPR, which stipulates that:
- All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing.….
- In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defence …;
(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
The Human Rights Committee is the body of independent experts that monitors implementation of the International Covenant on Civil and Political Rights by its States parties. The Committee publishes its interpretation of the content of the ICCPR, known as general comments, which are instructive to the States parties on the implementation of the ICCPR.
The general Comment on Article 14 requires States parties to safeguard the right to equality before courts and for tribunals to ensures equality of arms. Equality of arms requires that the same procedural rights be provided to all the parties unless distinctions are based on law, and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant[6].
In Article 14 a defendant is entitled to adequate time and facilities to prepare his defence. “Adequate facilities” according to the Committee must include access to documents and other evidence; this access must consist of all materials that the prosecution plans to offer in court against the accused or that are exculpatory.
AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS
The Charter is the pivotal human rights instrument of the African Union. Articles 5,6, 7 and 8 of the Charter which make provision for the protection of the right to a free trial are discussed here with the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, which guide on the implementation of Articles 5,6, 7 and 8 of the Charter
The Principles and Guidelines guide on the essential elements of a fair trial which include equality of arms between the parties to a proceeding; and an adequate opportunity to prepare the case, present arguments and evidence, and challenge or respond to opposing arguments or evidence.
The Nature of Discovery in Selected Courts with Different Criminal Jurisdictions in Zambia.
In criminal matters in Zambia, accused persons are presented using information in the High Court and by a charge in the Subordinate Courts. The method of disclosure varies from court to court as shown below.
Subordinate Court
The Criminal Procedure Code has no provision which obligates the prosecution in the Subordinate Court to extend, provide or exchange witness statements or exhibits which the prosecution is likely to avail before the court. This means that in the Subordinate Court, an accused person only gets to see the pre-trial- evidence of the prosecution while on the stand.
High Court
The procedure of supplying witness statements and exhibits to the accused beforehand is observed in the High Court. The law also stipulates that no witnesses shall be called without the requisite notice: Specific provision is made for this in the following provisions of the Criminal Procedure Code:
Section 258- this section requires that statements and related materials be supplied to the accused. It requires that in matters where an information has been filed the prosecution shall, before trial, furnish to the accused a list of the persons whom it is intended to call as witnesses for trial; and a statement of the evidence of each witness:
Section 286- this section provides for additional witnesses for prosecution. It stipulates that a witness who has not given evidence at the preliminary inquiry shall not be called by the prosecution at any trial unless the accused person has received reasonable notice in writing of the intention to call such witness. Such a notice must state the witness’s name and address and the substance of the evidence which he intends to give.
Section 293 –this section provides for additional witnesses for the defence. It stipulates that the accused shall not be entitled, to have any witness summoned, other than the witnesses whom he named to the subordinate court committing him for trial, as witnesses whom he desired to be summoned.
- Economic and Financial Crimes Court(EFCC)
The procedure in this Court is provided for in the Criminal Procedure Code (Economic and Financial Crimes Court) Rules, 2024, Statutory Instrument No.10 of 2024. The procedure of supplying witness statements and exhibits beforehand applies not only to the accused but to the defence in the EFCC. Specific provision is made for this in the following provisions of the Rules:
Rule 2- this rule provides a definition of the EFCC Court. It stipulates that for purposes of interpreting the 2024 Rules, the term “Court” shall mean:
- The Economic and Financial Crimes Division of the High Court; and
- The Economic and Financial Crimes Division of the Subordinate Courts.
Accordingly, the provisions on disclosure in the Rules extend to both the High Court Division and the Subordinate Court Division of the EFCC.
Rules 4 to 8 outline the proceedings for the EFCC. Embedded in this part of the Rules are provisions that facilitate the application of the principle of full disclosure in various ways as shown below:
Rule 4 Filing of Charge, List of Witnesses and Documents
To ensure that the accused has access to the materials to be used by the prosecution, the prosecution is required, at the time of filing a charge, to file-
- A list of witnesses to be called by the prosecution at trial;
- Witness statement; and
- A list and copies of documents to be relied on at trial.
Rule 5-Service of Documents
The prosecution is required, within a stipulated number of days of filing the documents referred to under rule 4(charge, list of witnesses, witness statement, and documents to be relied on at trial), to serve the said documents on the accused person or the accused person’s legal representative.
Rule 5/4 stipulates that a document or witness statement which has not been served in accordance with Rule 5 may not be relied on at trial. Further, Rule 5/5 stipulates that a person not named in a list of witnesses is not entitled to testify at trial. These provisions serve as safeguards to ensure that materials which the accused has not been given notice of are introduced at trial.
Exceptions
However, Rule 5/6 provides some exceptions to the procedure set out above. The prosecution may, with leave of the court-
- Disclose a document or witness statement at any stage before the close of the prosecution’s case, if the court is satisfied that the document or witness statement was not available at the time of the filing of that document under rule 4; or
- Amend a list of witnesses or call an additional witness.
Where the court allows disclosure of a document or filing of a witness statement under the above exceptions, the court is allowed under Rule 5/7 to adjourn the matter to give the accused person or the accused person’s legal representative an opportunity to examine the document or witness statement. Therefore, adequate notice is given.
Rule 6-Pre-Trial Conference
Rule 6 provides for a pre-trial conference, which enhances the process for disclosure. The court at the said conference amongst others:
-Confirms whether or not the prosecution has complied with the provisions in Rules 4 and 5 on the filing of a charge, list of witnesses and documents, and service of documents; and
– Establish issues relating to admissibility of evidence;
Rule 7-Disclosure by Defence
The rules also require disclosure by the defence. Where an accused person found with a case to answer intends to lead evidence in the accused person’s ‘defence, that accused person or the accused person’s legal representative is required within a stipulated time from the date of the accused person being found with a case to answer, by way of disclosure file a document that the accused person intends to rely on.
After filing the above documents by way of disclosure, the accused is required by rule 7/2 to serve the document on the prosecution. According to Rule 7/3, a document that has not been disclosed per sub-rule (2) shall not be relied on at trial by the defence.
Exceptions
However, Rule 7/4 provides some exceptions to the procedure set out above. An accused person found with a case to answer may, with leave of the court, rely on a document not disclosed by sub-rule 7/2, if the court is satisfied that –
- the document was not available at the time of the disclosure as referred to under rule 7/1
(b)it is in the interest of justice to allow the disclosure of the document
Where the court allows disclosure of a document under sub-rule (4), the court may adjourn the matter to give the prosecution an opportunity to examine the document
Rule 8-Pre-defence Conference
Similar to the Pre-trial Conference, the court is required at a stipulated time to summon the parties for a pre-defence conference. This ensures proper observance of disclosure. At the pre-defence conference, the court shall :
-establish whether the accused person has complied with rule 7(disclosure by defence)
– establish the issues relating to the admissibility of evidence
Conclusion
In Comparison with the other divisions of the Subordinate Court and the High Court, the EFCC appears to comply more with the key requirements of disclosure. The EFCC rules place a general obligation on both the prosecution and accused to disclose all material they propose to use at trial. The purpose of this requirement is to avoid a miscarriage of justice based on non-disclosure. Therefore, the provisions in the EFCC can be extended to all other courts with the necessary amendments.
The Author, Ms. Inutu Akolwa, is a Senior Research Officer at the Zambia Law Development Commission
FOOT NOTES
[1] Public Prosecution Service of Canada Desk-book
[2] The People v Paul Kasonkomona CR No. 9/04/13
[3] Ibid
[4] Accused’s Rights and Access to Prosecution Information in Subordinate Courts In Zambia Sunday B. Nkonde SC and William Ngwira
[5] ICCPR, The International Covenant on Economic, Social and Cultural Rights and the Universal Declaration on Human Rights
[6] Paragraph 13 of the General Comment to Article 14.