Zambia Law Development Commission

Completed Projects

The Zambia Law Development Commission in 2014 commenced a law reform project to criminalise torture in Zambia. This project was undertaken in collaboration with the Human Rights Commission with assistance of the United Nations Development Programme and the Swedish Embassy. The objectives of the law reform project were to:

  1. Gather information from stakeholders on whether or not torture should be criminalised in Zambia;
  2. Draft appropriate legislation to criminalise acts of torture and other cruel inhuman and degrading treatment or punishment;
  3. Generally implement the recommendations of Zambia’s second Universal Periodic Review Process relating to torture and thereby domesticate relevant parts of the UN Convention Against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment
  4. Identify any existing legislation that will need to be amended as a consequence of the draft Bill and style appropriate recommendations;
  5. Make recommendations on administrative and institutional reforms related to implementation of the draft legislation vis-à-vis enhancement of existing mechanisms or establishment of new ones.



The methodology for the project involved:

  1. Conducting a desk study where various literature relating to torture was reviewed and a comparative study to South Africa and Uganda (being jurisdictions that have already domesticated the UNCAT) in order to help determine the best formulation of legislation for Zambia;
  2. Developing a concept note used for the experts seminar. The concept note detailed international and regional efforts to criminalise torture which was used for the experts seminar and detailed the working methodology of the seminar;
  3. Conducting a regional expert’s seminar which was convened in 2015 in Livingstone to galvanize various actors at national and institutional levels to ensure that torture is criminalised in conformity with international and regional that Zambia has ratified. Seminar participants included government ministries and departments, civil society organisations working in the area of human rights, National human rights institutions from the region, international experts working on issues of torture and prominent Zambian jurists;
  4. Conducting four regional nationwide stakeholder consultative meetings in Lusaka, Kabwe, Kitwe and Livingstone respectively. The objective of the meeting was to obtain stakeholder views and solicit their support for a process of criminalising torture. Meeting participants were drawn from all the ten provinces of Zambia from government ministries and departments, law enforcement institutions, statutory bodies and civil society organisations.
  5. A meeting with Members of Parliament was convened whose objective was to obtain views on the need to criminalise acts of torture. Meeting participants were drawn various parliamentary Committees that included the committee on Legal Affairs, Governance, Human Rights, Gender Matters and Child Matters; the Committee on National Security and Foreign Affairs; Parliamentary Caucus on Children; and the African Parliamentary Network Against Corruption (APNAC).
  6. Drafting of the draft Anti- Torture Bill by a consultant engaged by HRC and ZLDC in 2016. The draft Bill was thereafter reviewed by a Technical Committee appointed by Cabinet Office. The Technical Committee comprised of experts on the subject matter and their key responsibility was to analyse the Commission’s research findings and stakeholder recommendations, to review the proposed draft Anti-Torture Bill and incorporate regional and human rights standards and practices, to make appropriate recommendations to the draft Bill and to oversee the remaining part of the review process.
  7. A meeting with stakeholders to validate the draft Anti-Torture Bill was convened with an objective to gauge whether or not the draft Bill contained recommendations of stakeholders, adhered to international, regional and national human rights standards and to assess the practical applicability of the draft Anti Torture Bill. And also to generally ensure that the provisions of the Anti-Torture Bill were consistent with the social and political values of the Zambian people. The stakeholders validation meeting participants were drawn from the same stakeholders involved in the national consultative processes.



In 2017, the Human Rights Commission and the Zambia law Development Commission successfully completed the law reform process and handed over the Anti- Torture Bill and a report on the law reform project to the Minister of Justice Hon Given Lubinda in June 2017 at the Ministry of Justice at a ceremony attended by representatives from the Swedish embassy and United Nations Development Programme (UNDP), government ministries and departments, law enforcement institutions, statutory bodies and civil society organisations. Also present at the handover ceremony were the two Commissions chairpersons, Commissioners and members of the Technical Committee. The objects of the Anti-Torture Bill are to:

  1. Provide for the criminalisation of acts of torture and other Cruel Inhuman or Degrading Treatment or Punishment
  2. Provide for the protection of victims of torture
  3. Provide for the compensation, rehabilitation, restitution of victims of torture
  4. Establish the Anti- Torture Fund
  5. Domesticate the relevant provisions of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the African Charter On Human and People’s Rights; and
  6. Provide for matters connected to and incidental to the foregoing.



SALIENT FEATURES OF THE ANTI- TORTURE BILL.

Part I

PRELIMINARY

 

Application

This part provides for an act of torture or other cruel, inhuman or degrading treatment or punishment that shall be inquired into, tried and otherwise dealt with in accordance with the Criminal Procedure Code, The Penal Code and any other written law.

Superiority of this Act over other Acts

This part makes a provision that subject to the Constitution, where there is any inconsistency between the provisions of this Act and the provisions of any other written law the provisions of this Act shall prevail to the extent of the inconsistency

Part I also provides for the definition of aggravated; child; commission; fund; minister; public office; public officer; rehabilitation; superior officer; and victim.

 

Part II

PREVENTION AND PROHIBITION OF TORTURE

This part makes a provision for a definition of torture; and Other Inhuman and Degrading Treatment or Punishment. It also makes a provision for no derogation from torture and prohibited detention.

 

Part III

FILLING OF, AND DEALING WITH, COMPLAINTS OF TORTURE

This provision facilitates for the victims to be informed about their rights.it also provides for the right of the victim or non-victim to complain to the Police, Police Public Complaints Commission, Commission or any other relevant institution or body having jurisdiction over the offence.

This part provides for the investigation of the complaint and police assistance to the victim after receipt of the complaint.

 

Part IV

 

OFFENCES AND PENALTIES

This part makes a provision that a person who tortures another person; a person who attempts to torture another person; and a person who incites ,instigates, solicits, encourages, finances any person to torture another person commits a crime and shows the penalties for the crimes.

This part also makes a provision for the responsibility of a superior over actions of a subordinate; Aggravating circumstances of torture; No defence to offence of torture; Compensation, rehabilitation or restitution; and Offence of other Cruel, Inhuman and Degrading Treatment or Punishment.

 

Part V

 

PROTECTION OF TORTURE VICTIMS AND OTHER PERSONS INVOLVED

This provision facilitates for the protection of Torture victims; Protection of witnesses and persons reporting torture: and Protection of Persons assisting victims of torture.

 

Part VI

 

USE OF INFORMATION OBTAINED BY TORTURE

This part provides for the inadmissibility of evidence obtained by torture; and provides for the prohibition of use of information obtained by torture.

 

Part VII

 

ESTABLISHMENT OF FUND

This part makes a provision for the establishment of the fund; the source of the monies for the fund; Application of the monies for the fund; and compensation to the victims of torture from the compensation fund established under the Compensation Fund Act.

This Part further provides for the Administration and management of the fund to be managed by the Minister responsible for Finance

Further, this part makes a provision that there shall be proper books of accounts kept and other records relating to the fund: and for the fund to be audited annually by the Auditor- General.

 

Part VIII

GENERAL PROVISIONS

This part makes a provision for the restriction on extradition or deportation where a person is likely to be tortured. Its further makes a provision for a person who has committed any offence under this Act not to be entitled to benefit from any special amnesty law or similar measure that will have the effect of exempting them from any criminal proceedings and sanctions.

This part also makes a provision for the Minister, by Statutory Instrument to make regulations for the better carrying out of the provisions of the Act.

 

Schedule

This part highlights ways of Physical and Mental/Psychological Torture.

A full report on the law reform project on the criminalization of torture in Zambia and Anti- Torture Bill can be obtained from the Zambia Law Development Commission offices or website www.zldc.org.zm

Introduction
The Zambia Law Development Commission was engaged by Zambia Institute of Architects (ZIA) in June 2019 to facilitate the remaining process of conducting the law reform process for the review of the ZIA Act. The envisaged outcomes of this process are:
1. Review of the ZIA Act and allied legislation;
2. Amendment of the ZIA Act.

Consequently, the preliminary desk review, the methodology of this review will entail among others, conducting a business regulatory impact assessment and generation of the regulatory impact assessment (RIA) Report; stakeholder meetings; stakeholder validation meeting; consideration of project reports and draft Bill and approval meeting by ZLDC Research and Projects Committee and ZIA; finalisation of project reports and draft Bill; and handover to ZIA at the Ministry of Justice respectively.

OBJECTIVES OF THE REVIEW
• The general objective is to review the Zambia Institute of Architects’ (ZIA) Act and finalise the draft Bill.

Specific Objectives:
• Conduct a desk review of allied legislation, policies and international best practices;
• To conduct a Business Regulatory Impact Assessment in accordance with the Business Regulatory Act;
• To conduct stakeholder consultations in order to ensure the draft Bill incorporates stakeholders concerns; and
• To review the layman’s draft Bill taking into account findings from the desk review, stakeholder consultations and from the Business Regulatory Impact Assessment

Some of the challenges faced in the implementation of the Act as identified by the stakeholder engagement process and literature review include among others:
• Institutional constraints, including inadequate human, material and financial resources;
• Low numbers of registered architects;
• Public perception that engagement of services of an architect is an unnecessary cost; and
• Lack of an adequate legislative framework to support architects.

Recommendations from the Zambia Institute of Architects concerning the Zambia Institute of Architect Act, Chapter 442 of the Laws of Zambia.

1. The Institute shall continue to be known as the “Zambia Institute of Architects”.
2. Definition of Architect shall not include lower or upper limit of works individual can undertake.
3. With reference to the classes of membership include and define:
a. Intern : Undergoing undergraduate training at College or University,
b. Graduate Member: Holds Diploma or Degree from ZIA accredited College or University yet has not sat for or passed the Professional Competence Exams set for Architects or Competence Exams or interviews set for Technicians and Draughtsmen.
c. Technician: Holds a certificate from ZIA accredited College and has sat for and passed Competence Examinations or Interviews held by ZIA.
d. Technologist: Holds a Diploma from ZIA accredited College or University and has sat for and passed Competence Examinations or Interviews held by ZIA.
4. Tenure of ZIA presidency to correspond to that of the other Council Members.
5. Notwithstanding, the provisions of tenure on the Zambia Institute of Architects Council, A Member shall not be eligible to stand for the following positions unless they have previously served on the Zambia Institute of Architects Council in any capacity:
i. President;
ii. Vice-President;
iii. Honorary Secretary;
iv. Honorary Treasurer.
6. Include Administration and Finance Committee to be chaired by the Honorary Secretary and have the Honorary Treasurer as Vice Chairman. Other members shall include;
a. The Vice President
b. Registered Accountant chosen by the ZIA President and approved by the Council;
c. Registered Human Resource Specialist chosen by the ZIA President and approved by the Council;
d. Immediate Past Honorary Secretary
e. Senior Member of the institute chosen by the ZIA President and approved by the Council;
7. Merge the Membership Committee and Registration Committee to form one committee which shall be known as the “Registration and Membership Committee”. Said committee shall include:
a. Vice President
b. Honorary Secretary
c. Honorary Treasurer
d. 2 Past Presidents
e. Immediate Past Honorary Secretary
f. 3 Senior Corporate Members (10 Years’ Experience Minimum) Chosen by the president and approved by the Council.
g. 1 Senior Registered Draughtsman (5 Years’ Experience Minimum)
h. 1 Senior Registered Technician (5 Years’ Experience Minimum)
8. Provide for the Inspectorate that will report directly to the Chairman of the Professional Ethics and Conduct Committee (Vice President of ZIA). The Inspectorate teams per region shall include;
I. Minimum of 3 Registered Architects (Corporate Members);
II. 1 Lawyer registered by the relevant professional body;
III. 1 Public health specialist duly registered by the relevant professional body;
Member of:
• Commonwealth Association of Architects
• International Union of Architects
• SADCC Union of Architects
• Africa Union of Architects
IV. 1 Town and Country Planner duly registered by the relevant professional body;
V. 1 Civil and Structural Engineer duly registered by the relevant professional body;
VI. 1 Mechanical Engineer duly registered by the relevant professional body;
VII. 1 Electrical Engineer duly registered by the relevant professional body.
9. Provide for the Joint venture requirements to be included in the act (Currently under Clause 28 (2)). It should be very clear that foreign Architects should partner with local Architects in a mutually beneficial Joint Venture arrangement. Fees for said agreement are to be set by Council from time to time.
10. Provide for Councils and other Planning Authorities to receive applications for planning permission only from Architects duly registered with the Zambia Institute of Architects whose membership is current.
11. Remove Exemptions from Registration (Currently under Clause 31). All Students, Graduates, Draughtsmen, Technicians Architects and Architectural Firms shall register with The Zambia Institute of Architects.
12. Align ZIA calendar to government calendar (refer to Clause 32(1) in Cap 442).
13. Review the penalty units outlined in the act for offenses and align them with the more current ones approved and specified by the government of the republic of Zambia.
14. Provide for a more detailed and elaborate Professional code of ethics and conduct in line with international best practice of Architects.
15. Provide for the Zambia Institute of Architects Professional Centre of Excellence which will be responsible for the Professional Competence Courses & Examinations of the Institute and the Continuous Professional Development Programmes for Members of the Zambia Institute of Architects. The Centre of Excellence will report Directly to the Registration & Membership Committee.
Professional Fees
a. Change the “Maximum” cap in the Statutory Instrument 106 of 1999 to “Minimum”.
b. Membership and Practice Fees;
c. a. Fees to be paid on or before the start of the Institutes’ financial year. Late payments will attract a penalty as determined by council from time to time.
d. b. Members or firms that have not paid for a period should pay arrears with interest upon resuming unless an application for leave was made and granted.
e. c. Life and Honorary Member MAY not pay any membership fees
f. d. A person registered to a class of membership during the course of a financial year will pay a prorated fee for that class
g. e. Fellow and life member to be differentiated. Fellow to pay higher subscriptions. Fellow to be based on an ascribed minimum number of years.
16. Under Preliminary, add the following to the definition of Architectural Services:
a. Provision of Project Management on Construction Projects
b. Landscaping and interior design
c. Preparation of Common Leasehold documents
d. Estate Planning
e. Architectural valuation
f. Any other related services
17. Add Definitions of the following
a. Architecture; The profession of planning, designing, and reviewing the construction of buildings. The provision of services in connection with the design of buildings and the space within the site surrounding the buildings, that have as their principal purpose, but not limited to, human occupancy or use.
b. Architect; A person registered with the Zambia Institute of Architects, in accordance with section……. of the act, who Plans, designs and reviews the construction of buildings, infrastructure, the built environment, coordinates and may superintends other consultants on a building project. Corporate Member definition to be tied to payment of subscriptions. An architect can only practice if subscriptions are paid up.
c. JV; means a partnership of Zambian registered Firm with a foreign firm, amalgamated temporarily, and registered with ZIA, to execute a single project in Zambia.
d. Associate: A partnership of two or more Zambian Registered Firms, amalgamated temporarily to execute a project in Zambia.
e. Registrar:
f. Specialist consultant
g. Ex-official to be defined and indicate holds no voting right
18. Composition of Council;
a. Two trusties to be replaced by Immediate Past President and a Past President (nominated by sitting president and approved by council)
b. Two honorary members to be replaced with two corporate members
c. Two allied professionals to be replaced by two members who may be technicians or technologists or both. Technician/technologist to be elected by a general meeting of technicians/technologists. To be Ex-official In council.
d. Replace Academic Architect with two additional corporate members
19. It was recommended that for the qualifications of Technologists and Technician, the Act should make provision for all registration of members to be done through exams.
20. Appeals shall to the Appeals Committee’ and not to the minister.
21. ZIA to have the mandate to close down a site/ suspend works, and fine offenders, if the project has no registered architect on the project or a valid Joint Venture Agreement Sanctioned by ZIA. Project developer to apply to ZIA for this to be lifted once all cited irregularities are resolved.
22. All members of ZIA to be required to attend CPD organized by ZIA. CPD to be tied to membership renewal.

On 5th January, 2016 his Excellency President Edgar Chagwa Lungu signed into law the constitution of Zambia Act No. 1 of 2016 and the Constitutio of Zambia (Amendment) Act No. 2 of 2016.

The Constitution of Zambia is the fundamental law in Zambia from which all other laws derive existence. The amendment of the Constitution therefore necessitated law and policy reform to bring to life the various provisions the constitution now provides. The reforms resulting from the amended constitution also require to bring existing legislation into conformity with the provisions of the constitution as amended.

The Zambia Law Development Commission therefore commissioned a law reform audit on constitutional conformity to determine what laws required amendments and what new laws required enactment following the constitutional amendment. The law reform audit focused on the governance framework provided by the Constitution (Amendment) Act No.2 of 2016 and aimed not only to identify new areas requiring legislation but also ensuring that the frameworks and systems therein are harmonised.

The audit was conducted from January to April 2017, it sought to:

  1. Identify governance and human rights-related laws that require law reform;
  2. Identify reform processes that are already taking place and have stalled for one reason or another and document the processes;
  3. Make appropriate recommendations with regard to (a) and (b) above;
  4. Identify law reform processes that can be supported by various actors or partners in their specific intervention areas:
  5. Better fulfil the ZLDC mandate with regards revision and reforming of laws by tracking reforms, making recommendations to ongoing reform processes and by implementing reforms which have more considered analysis.

The Methodology for the legislative exercise involved:

  1. Recruiting a consultant for the purposes of leading the research and training the research staff in methodology and best practices in law reform; understanding the Zambian Constitutional framework; and evaluation of data collection tools.
  2. Conducting a desk review to determine the impact that the Constitutional amendments have had on the legislative and institutional frameworks within government but also more specifically on human rights and Governance structures and policies.
  3. Conducting field research which involved stakeholders from government ministries and departments, statutory bodies and civil society organisations who are key to the execution of the legislative audit.
  4. Conducting a stakeholder consultative meeting to validate a report of the research findings. The validation meeting presented a chance for stakeholders to further make submissions and cross reference common shortfalls among the institutions present occasioned by the constitutional developments. Meeting participants were drawn from institutions that participated in the field research.
  5. In April 2017, the Commission completed the final report and incorporated findings from the field work, the desk review and submissions from the stakeholder validation meeting.
  6. On 5th May, 2017 the Commission handed over a final project report on the Legislative Audit for Constitutional Conformity to the Minister of Justice at a ceremony attended by government ministries and departments, statutory bodies and civil society organisations.

The legislative audit was undertaken with the financial support of the European Union and the Federal Republic of Germany in implementation with GIZ through a consultant working with a team of the Commission’s researchers.

Summary of the legislative audit key findings and recommendation

  1. Laws that DO NOT require any further reforms or legislative interventions

    1. Gender Equity and Equality Act
      The interpretation section of the Act must be amended to align its definition of “child”, and therefore that of “boy” and “girl” to the constitutional definition of “child”. Further, section 10(5) of the Act must be amended to exhaustively list the qualifications of persons eligible for nomination to the Gender Equity and Equality Board in accordance with Article 240 of the Constitution as amended. Lastly, Section 10(7) must equally be amended to align its provisions to that of Article 240(c) of the Constitution.

    2. Persons with Disabilities Act
      The Constitution discriminates against persons with disabilities hence there is need for harmonization in the legislation.

    3. Electoral Process Act
      The Act conforms to the Constitution as amended.

    4. Judiciary Administration Act
      The Act conforms to the Constitution and therefore there are no recommendations for legislative interventions.

    5. Ministers (Prescribed Number and Responsibilities) Act
      The regulations to the Act must be enacted to make the Act fully operational.

    6. Supreme Court Act
      There is no recommended legislative intervention as the Act conforms to the Constitutional amendments.

    7. High Court Act
      There is no recommended legislative intervention as the Act conforms to the Constitutional amendments.

    8. Constitutional Court Act
      There is no recommended legislative intervention as the Act conforms to the Constitutional amendments.

    9. Parliamentary Service Act
      There is no recommended legislative intervention as the Act conforms to the Constitutional amendments.

    10. Service Commission Act
      The provisions of the Act conform to the Constitution as amended hence there are no recommended legislative interventions.

  2. Laws that require MINIMAL BUT NECESSARY reforms/further legislative interventions

    1. Citizenship of Zambia Act
      There is need for regulations to ensure to be made to ensure that the provisions of the Act are actually implemented.

    2. Court of Appeal Act
      The Court of Appeal Act has to be amended to remove from its jurisdiction appeals on subject matter of Article 28.

    3. Public Audit Act
      The public Audit Act Conforms to the Constitutional amendments of 2016. However, the regulation of the Act must be enacted to make the Act fully operational.

    4. Human Rights Commission Act
      To ensure that the Human Rights Commission Act fully complies with the constitution, the Act has to be amended to expressly reflect the new functions assigned to it by the Commission.

    5. The Penal Code
      Sections 11 and 12A of the Penal Code and the gender biased language used in the penal code does not conform to the Constitutional standard. The aforementioned provisions of the Penal Code and any other such provisions must be redrafted to ensure that they are not derogatory in and of themselves, and that they are not gender biased.

    6. The Anti- Corruption Act
      The qualifications stipulated in section 2(4) and 5 of the schedule to the Anti- Corruption Act must be amended to bring it in conformity with Article 240 of the Constitution as amended.

  3. Laws that require MAJOR reforms

    1. Mental Disorders Act
      The Act must be repealed and replaced to be brought into conformity with the Constitutional provisions

    2. Chiefs Act
      The Chiefs Act needs to be amended to bring it in conformity with the Constitution with regards to the selection and revocation of chieftaincy and traditional leaders as well as by prescribing the operation of the House of Chiefs.

    3. Juveniles Act
      The definition of child, juvenile and juvenile adult are contrary to the constitutional definition of child and adult and therefore have to be amended to align them to the Constitution.

      The Act also has to be amended to abolish the Juvenile Court as the Constitution now makes provision for the Children’s Court in the High Court.

      The Act further needs to be amended to ensure that all derogatory language against person’s mental disabilities and children who come in conflict with the law are deleted from the statue book.

    4. Lands Act
      The lands Act must be amended to ensure that the administration of Land is vested in the Lands Commission and that the powers assigned to the president in the Act are exercised by the lands Commission.

      The Amendment must also clearly describe or apportion roles to the different administrative organs established under the Act, Subject to Article 233.

    5. Criminal Procedure Code
      The Criminal Procedure Code needs to be amended to enhance its provisions and guarantee greater protection to those who interact with the criminal justice system to ensure that justice is served and that it adequately gives effect to the spirit, purport and objects of the Constitution as amended.

    6. Narcotic Drugs and Psychotropic Substances Act
      It is necessary for the Act to define the composition of Commission as provided in Article 242 as it only provides for the Commissioner, Deputy Commissioner and Acting Commissioner. If all investigative commissions are intended to operate in the same fashion as the Human Rights Commission, then the Commission envisaged under the Act is different from the Commission envisaged under the Constitution and this would therefore have to be amended. It may then be necessary to enact a Drug Enforcement Commission Act to provide for the details contained in Article 238-242 of the Constitution. Further, the qualifications of the commissioners identified in the First Schedule of the Act need to be amended to bring them in conformity with the Constitution. From the reading of the Act these commissioners are not officers of the Commission and therefore fall in the realm of commissioners envisaged under Article 240. The Schedule must also be amended to ensure that alternates appointed under Paragraph 3 also meet the qualifications stipulated in Article 240.

    7. Prisons Act
      Parts I and II of the Act would have to be amended to reflect the changes contained in the constitution as discussed above and align the provisions to the spirit, purport and objects of the Constitution as amended. Further, the Act has to be amended to include rights of prisoners so as to adhere to the entire spirit of the Constitution. The rights of prisoners must seek to protect human dignity and equality.

A full report on the Legislative audit for Constitutional Conformity can be obtained from the Zambia Law Development Commission offices or website www.zldc.org.zm . A full report covers several pieces of legislation and highlights the following: Constitutional amendments affecting the legislation; Comments on Constitutional Conformity of the legislation; recommended legislative intervention; and the impact of constitutional changes on public institutions.

National Consultative Process on the draft Political Parties Bill 2017.

In April, 2017 Cabinet Office approved in principle, the need to introduce a Bill in Parliament to govern public funding for political parties and the regulation of campaign financing and to provide for matters connected or incidental to the foregoing. Following this approval, the Ministry of Justice embarked on drafting a working document titled the “Political Parties Bill 2017.

The Hon. Minister of Justice on 8th August 2017 launched the process of stakeholder engagement on the development of the Political Parties Bill, 2017. This opened up the Bill for public scrutiny by a cross section of stakeholders including political parties, Civil Society Organisations (CSOs), Faith Based Organisations (FBOs), Government institutions, academia and private individuals.

At the conclusion of the stakeholder engagement, the Ministry of Justice tasked the Zambia Law Development Commission to facilitate the National Stakeholders Consultative Forum. The purpose of the forum was to provide a platform for stakeholders to make final submissions on the draft Political Parties Bill, 2017. The stakeholders were drawn from all registered political parties, civil society organisations, faith based organisations, academia, government ministries and departments as well as the House of Chiefs. The Objectives of the stakeholder consultative forum were to:

  1. Critically review and analyse the contents of the Political Party Bill 2017.
  2. Generate a comprehensive document reflective of recommendations from the consultative process.
  3. Make recommendations on administrative and institutional reforms related to implementation of the draft legislation vis-à-vis enhancement of existing mechanisms or establishment of new ones.
  4. Submit a written report to MOJ of the consolidated final submissions from the stakeholders and other pertinent inputs.

A report was thereafter developed from the consultative stakeholder submissions and other submissions made by stakeholders at previous consultations. The report further presents findings of a desk study on international best practices that was carried out by the ZLDC.

A stakeholders’ validation meeting is scheduled for early 2018 before the process and related documents are handed over to the Minister of Justice. Provisions of the Political Parties draft Bill that attracted the most interest include the provision on Appointment and composition of the board of political parties; Records of political parties including financial reports and audited accounts; Funding of political parties i.e distribution of the fund and funding eligibility; and the formulation of regulations under the Act.

“A citizen who has attained the age of eighteen years is entitled to be registered as a voter and vote in an election by secret ballot”.
Article 46, Constitution of Zambia


Prior to the 2016 constitutional amendment persons in lawful custody or whose freedom of movement was restricted under a written law were precluded from registering as voters and from voting in an election.


“Every citizen of Zambia who has attained the age of eighteen years shall, unless he is disqualified by Parliament from registration as a voter for the purposes of elections…..be entitled to be registered as such a voter under a law….. (2) Every person who is registered in any constituency as a voter for the purpose of elections…..unless he is disqualified by Parliament from voting in such elections on grounds of his having been convicted of an offence…..on the grounds of his having been reported guilty of such an offence by the court trying an election petition or, on the grounds of his being in lawful custody at the date of the election, be entitled so to vote in that constituency in accordance with the provisions made by or under an Act of Parliament…..
Article 75, 1991 Constitution of Zambia as amended in 1996.


In 2016 Prisons Care and Counselling Association (PRISCCA) instituted an action in the Constitutional Court on the right of persons’ incarceration to vote.

GODFREY MALEMBEKA (Suing as executive Director of Prisons Care and Counselling Association) V THE ATTORNEY GENERAL AND THE ELECTORAL COMMISSION OF ZAMBIA 2016/CC/0013

BRIEF FACTS: The petitioner, the Executive Director of the Prisons Care and Counselling Association (PRISCCA), requested the Attorney General (1st Respondent) through the Ministry of Home affairs to issue National Registration Cards to eligible persons awaiting trial in prisons and convicted persons who had appealed against conviction but were not on bail. He further requested the Electoral Commission of Zambia to register them as voters. In response, the 2nd respondent stated that persons awaiting trial and convicted persons on appeal who were in lawful custody did not qualify to be registered as voters under Section 7(1)(e) and 19(c) of the Electoral Act No. 12 of 2006 which was then in force and therefore denied to register them as voters.

ISSUE: Whether or not Sections 8 and 9(1)(e) of the Electoral Process Act No.35 of 2016 read together with Section 47 of the said Act contravenes the provisions of Article 46 of the Constitution as amended.

DECISION: Delivered by Justice A.M. Sitali The Constitutional court held that Sections 9(1)(e) and 47 of the Electoral Process Act, No. 35 of 2016 contravened Article 46 of the Constitution as amended and thus void. Therefore, Article 46 of the Constitution has since extended the right to vote to persons in lawful custody, or whose freedom has been restricted under a written law in force in Zambia and as such they qualify to be registered as voters and to vote as per constitutional provision. A declaration was then granted that Section 9 (1)(e) and 47 of the Act contravenes the constitution and should be expunged from the statute book.

REASONING: The courts cited Article 1(1) of the Constitution and acknowledged that the Constitution is the supreme law of Zambia and any written law which is inconsistent with the Constitutional provisions is void to the extent of its inconsistency. They further stated that Constitutional provisions must be construed according to the plain and ordinary meaning of the words, citing the case of General Nursing Council of Zambia V Inutu Milambo Mbangweta and the case of Matilda Mutale v Emmanuel Munaile. The courts also stated that under Article 46, the right to vote which is guaranteed to citizens is not qualified save for setting the age limit at 18 years thus, parliament has not been given the power to impose limitations as to who is qualified to vote. The Judge therefore concluded that Section 9(1)(e) and Section 47 of the Act were provisions which were carried over from the provisions of section 7(1)(e) and 19(c) of repealed Electoral Act No. 12 of 2006 which disqualify persons in custody from registering as voters and from voting. These provisions were in accordance with Article 75(1) and (2) of the Constitution prior to the amendment. However, in view of the change in the Constitutional provision relating to the franchise stated in Article 46 of the Constitution as amended, Parliament cannot disqualify a person who is in lawful custody or has their freedom of movement restricted under a written law at the date of the election.

In September 2017 the Minister of Home Affairs Hon. Stephen Kampyongo M.P. instructed the Zambia Law Development Commission to undertake a review of the legal and policy framework with a view to facilitate the process of ensuring that inmates exercise their right to participate in the democratic governance of the country as decided by the Constitutional Court.

A working group comprising the ZLDC, Zambia Correctional Services, Electoral Commission of Zambia and PRISCCA, Prison Future Foundation and other relevant government departments was constituted in the fourth quarter of 2017 to undertake this assignment. Initial planning and budgeting activities were undertaken and project implementation is expected to commence in early 2018.

In our 3rd issue we shared the activities the Commission has undertaken in this review process from its inception in 2014.

In 2017 we successfully completed phase 1 of the review of the Prisons Act and its allied legislation.

NOTE!
The project objectives for this law reform process were:

  1. To review the prisons Act and related legislation so that laws respond to the needs of prisoners ; and
  2. To promote effective and sustainable prison reforms in Zambia which are in compliance with international and regional human rights standards.

Under phase 1, the Commission undertook a desk review of the Prisons Act and related legislation, international and regional human rights and prisons standards and a review of literature. The review was intended to identify areas requiring reform in the domestic legislation and to identify and document best practices in the region and at international level.

During the review process, the draft Correctional Services Bill that had been developed under the auspices of the Zambia Correctional Services and the Ministry of Home Affairs was also appraised to gauge it against the best practices and findings under the desk study undertaken by the Commission.

During the third and fourth quarter of 2017, the Commission’s draft review report findings and appraisal of the draft Correctional Services Bill were subjected to review by a working group set up to oversee and guide the latter part of this process. The working group comprised members drawn from the Zambia Correctional Services, United Nations Office on Drugs and Crimes, Prisons Care and Counselling Association, Ministry of Gender and the Human Rights Commission.

The report and findings were also subjected to a stakeholder validation meeting held during the same period whose participants were drawn from relevant government departments and ministries, civil society organistions, statutory bodies and the Zambia Correctional Services.

Phase 1 of the review came to a close with the handover ceremony of the project report and appraised draft Correctional Services Bill (with comments and recommendations from ZLDC) to the Minister of Justice Hon. Given Lubinda in October 2017. The Handover was attended by cooperating partners: European Union Delegation to Zambia, United Nations Development Programme, United Nations Office on Drugs and Crime; senior government officials from government institutions, civil society organisations and media houses.

During the handover ceremony ZLDC chairperson, Madam Justice Roydah Kaoma in her remarks emphasised the need to promote effective and sustainable prison reforms in Zambia which are in compliance with international and regional standards and good governance. She further recommended the need to respond to the needs of vulnerable groups such as circumstantial children, juveniles, the special needs of women and elderly inmates, and persons with disabilities.

European Union Ambassador to Zambia Alessandro Mariani in his remarks said the handover of the review of the Prisons Act and allied legislation is another important step in the Zambian path towards prison reform and protection of prisoners’ rights.

United Nations Development Programme Country director Mandisa Mashologu reiterated the United Nation’s commitment to continue supporting the government in domesticating international stands in the administration of correctional services.

The Minister of Justice, Honourable Given Lubinda, M.P. reaffirmed Government’s commitment to reducing the number of people incarcerated in the country. He noted that overcrowding is one of the biggest challenges the Correctional Service is facing as a result of inter alia delays in confirmation of sentences by the High Court and listing of appeal cases, long remand periods due to delays in case flow within the justice system and low number of inmates granted parole. Further, he reiterated that Government will take all necessary measures to support the efforts of the ZLDC and the Zambia Correctional Service in this reform process.

In the third and fourth quarter of 2017, the Commission commenced implementation of the second and final phase of the review process. The second phase commenced with stakeholder consultations in Copperbelt, Luapula and Northern Provinces. The year ended with a comparative study visit to the Namibia Correctional Services (NCS). The visit to Namibia was intended to draw lessons and best practices for Zambia as it transitions from a punitive system to a correctional system. Other institutions visited were the Faculty of Law – University of Namibia (UNAM), the Law Reform and Development Commission, Namibian Police, Office of the Prosecutor-General, Legal Assistance Centre (LAC), Windhoek Correctional Facility, Electoral Commission of Namibia, Directorate Legal Aid, Judiciary (High Court) and Office of the Ombudsman.

The purpose of the in-depth study visit was to consult the various key players in the criminal justice system of Namibia and document best practices on the institutional and legal framework of the correctional system, the form and content of the correctional legislation, the procedures followed in handling cases of offenders particularly rights of women and circumstantial children, the powers exercised by various by various players in the criminal justice system and to understand the conceptual framework of the corrections system in Namibia.

A notable finding of the visit was the case management, rehabilitation and reintegration programme being applied by the Namibian Correctional Service. Case management is a principle of Unit Management and is a process of demarcating the correctional service system into smaller units for easy management. The Namibia Correctional Service has also adopted a philosophy of dealing with offenders by employing a strategy known as the Offender Risk Management Correction System (ORMCS). The ORMCS is a tool utilised for management, control, rehabilitation and reintegration of offenders. The underlying ORMCS principle is that all offenders are unique and should be treated as such under the corrections and rehabilitation systems.

This review project has been supported by the European Union, the United Nations Development Programme, United Nations Office on Drugs and Crime and USAID Discover Health.

The project’s completion is set for May 2018.

REVIEW OF THE ELECTORAL PROCESS ACT NO. 35 2016


State Parties shall:

  1. Recognize the crucial role of women in development and strengthening of democracy;
  2. Create the necessary conditions for full and active participation of women in the decision-making processes and structures at all levels as a fundamental element in the promotion and exercise of a democratic culture;
  3. Take all possible measures to encourage the full and active participation of women in the electoral process and ensure gender parity in representation at all levels, including legislatures.

Article 29 of the African Charter on Democracy, Elections and Governance.


Zambia is continuously making strides to ensure women’s equal access to and full participation in power structures and decision making. In this regard, in 2017 the Ministry of Gender in collaboration with the Electoral Commission of Zambia (ECZ) working with the Zambia Law Development Commission (ZLDC) commenced a process to review the Electoral Process Act No. 35 of 2016 and allied legislation. The overarching objective of this project is to engender the electoral laws for the purpose of promoting and facilitating the participation of women in the electoral process and in the governance of the country.

This objective is founded on Article 45 of the Constitution which sets out the principles of the electoral system and process. These include, among others, the fair representation of the various interest groups in society and gender equity in the National Assembly or council. The review process therefore seeks to identify best practices and standards for women’s political participation, identify the legal and administrative/institutional frameworks for women’s political participation in Zambia, identify the key drivers and inhibitors for women’s participation in politics and to make recommendations for reform to domestic legislation.

The review process commenced with a desk review meeting in September 2017, which was facilitated by the ZLDC. In attendance at the meeting were representatives from the Non-Governmental Organisation Coordinating Council (NGOCC), Women and Law in Southern Africa (WLSA), National Women’s Lobby Group, Ministry of Gender, Human Rights Commission, and Zambia Centre for Inter-Party Dialogue (ZCID). This activity culminated in the production of an Issue Paper. The Issue Paper provided information with regards to the international, regional and domestic legislation that has an influence on the levels of female participation in politics; the institutional and administrative framework influencing the participation of women in politics. It also outlined the challenges faced by women wishing to participate in politics, and highlighted potential areas of concern in the domestic laws. The Issue Paper will serve as a guide for discussions and stakeholder consultations the first of which was held in October 2017.

Workshop participants included representatives of relevant government ministries and departments, statutory bodies, civil society organisations, political parties, National Legal Aid Clinic for Women, academia and ZLDC.

The participants of the meeting made recommendations for the enhancement of the participation of women in politics. This review process continues in 2018.

In the recently amended Constitution of Zambia a renewed commitment by the Zambian people is expressed to ensuring that their values relating to family, morality, patriotism and justice are maintained and all functions of the State are performed in their common interest. To this end the Constitution in order to safeguard the interests of the family, among others establishes the Family Court as a division of the High. Following the establishment of this new division of the High Court, a committee was established to look into how to operationalise the system. Among the activities conducted to operationalize the system were study visits to other jurisdictions which revealed the legislation governing the family law divisions and the judicial and other structures created pursuant to this legislation. Subsequently, the Zambia Law Development Commission(ZLDC) in line with its mandate to research and make recommendations on new areas of the law that should be developed which are responsive to the changing needs of the Zambian society, undertook a project named “ Review of the Laws relating to the Family” in order to :

    1.
  1. Review the law relating to the family in Zambia, with a view of enhancing the provisions pertaining to the welfare of the family.
  2. 2.
  3. Develop a comprehensive, legal framework for the effective administration of the law relating to the family in Zambia.

The objectives of the review process in the abovementioned project were established as follows:

    1.
  1. To identify the laws pertaining to the family applicable in Zambia.
  2. 2.
  3. To identify shortfalls in the provisions of the laws pertaining to the family in Zambia.
  4. 3.
  5. To consider laws relating to the family in other jurisdictions.
  6. 4.
  7. To consider regional and international standards and best practices.
  8. 5.
  9. To establish if there are new areas of legislation that needs to be developed pertaining to the family in Zambia.
  10. 6.
  11. To consider whether the existing family law framework be collapsed into one or into fewer pieces of legislation? If so, which one or ones? If not, why not?
  12. 7.
  13. To establish how the on-going reform processes may be utilized and maximized to develop adequate family law for Zambia.
  14. 8.
  15. To consider matters pertaining to the administration of the law relating to the family in Zambia.

The project on the Review of the Laws relating to the Family commenced with a stakeholder consultative meeting convened by ZLDC and the Judiciary on 1st September, 2017 at the Judiciary. At this meeting preliminary research finding were discussed and the way forward proposed. Meeting participants were drawn from relevant line ministries, the judiciary, civil society organisations and UN agencies.

The stakeholder meeting resolved and recommended:

  1. That the laws relating to intestate should be consolidated into one pieces of legislation;
  2. That the draft marriage bill should be separate matters of contracting a marriage and its obligations, responsibilities and entitlements from matters of divorce as the objects of the two were in conflict and could not therefore comprise one piece of legislation; the Matrimonial Causes Act as it is should therefore not be repealed;
  3. That the Children’s Code Bill as proposed should be finalized;
  4. That legislation identified as archaic or inapplicable be reviewed and/or repealed;

Following the initial consultative meeting, ZLDC conducted desk research on the subject of the review process, the findings of which were compiled in an issues paper. The issues paper outlined: the objectives of the research; institutional and administrative framework for the law relating to the family in Zambia; laws relating to the family in Zambia; projects on laws relating to the family in Zambia undertaken by ZLDC; laws relating to the family in other jurisdictions; and regional and international best practices.

The issue paper was presented at a consultative meeting jointly hosted by ZLDC and the Judiciary, which was held at Intercontinental Hotel in Lusaka from 14th to 15th December 2017.Participants included representatives from the pertinent Government departments, CSO’s and academia. The meeting provided a platform for stake holders to:

    1.
  1. Make recommendations for the review of laws relating to the family;
  2. 2.
  3. Subject to comments, the key recommendations arising from the Review of the Marriage Act, the Children’s Code Bill, the Review of the Intestate Succession Act, and the Criminalization of Early and Forced Child Marriage.
  4. 3.
  5. Review the UK Family Law Act (1996) with a view to developing a Zambian Family Law Act.

The Judge in Charge of the Family Division of the High Court also participated in the Workshop. She submitted that in this process it would be important to establish a system of support for the protection of the rights of women and children, and that a starting point would be by the formulation of a legal framework that is all-inclusive and consistent. The Judge averred that this in turn would assist the Judiciary in living up to its Mission Statement to Provide effective and efficient administration of justice accessible to all people in Zambia through impartial and timely adjudication without fear or favour.

The participants in general submitted that the best method of developing adequate family law for Zambia was by consolidating related Acts and not the entire body of laws relating to the family into one Act. It was also agreed that the comments made by participants concerning the key recommendations arising from the projects under taken by ZLDC on issues pertaining to the family, are also incorporated as findings of the respective studies.

Some of the comments made by the participants in regard to the Review of the Marriage Act Project, were that section 9 of the draft Bill which stipulates that a person shall not marry unless that person has attained the age of eighteen years, should be applied to both boys and girls as it is only applied where the girl child is concerned; procedural issues for marriage such as giving notice to the Registrar-General must apply to all the marriages not only Christian marriages; and under section 82 both parties to a customary marriage must be allowed to petition the court for dissolution of the marriage on the ground of adultery, not just the male party.

In regard the Children’s Code Bill, participants submitted that: under section 108 there should be no time limit to file the affiliation order; where costs arise, the court should have discretion on who pays or bears the cost of an application; and under Section 228 the jurisdiction of adoption orders should be left to the High Court.

For the project on the Review of the Intestate Succession Act , participants submitted that: under section 20(4) where an administrator may with the approval of the court, invest any monies of the beneficiaries who is a minor, which is not urgently required to meet the needs of the minor. The court must attach conditions to the investment of the estate; under section 20 a timeframe within which administrator shall complete the administration of estate expeditiously should be specifically provided 12 months was suggested to be the maximum limit, applications for extensions where justified could be made through the Court.

Going forward with the Criminalization of Early and Forced Child Marriage Project, participants submitted there must be more sensitization on issues of early marriages and the effects of early pregnancies in communities, schools and hospitals. It was also submitted that good cultural practices must be retained in both rural and urban settings and harmful cultural practices be proscribed. To this end local courts must also be sensitized on handling customary marriage cases.

The remaining key activities in the review process include: Stakeholder Consultations in three other provinces where inputs will be obtained from the pertinent stakeholders. Following this a consolidated report of the findings shall be prepared which shall guide on the final steps to be taken which will entail the drafting of appropriate legislation and or/recommendations. Validation meetings with the stakeholders will follow to ensure that the final output is reflective of what had been submitted during the consultative process.