In this week’s article, we look at how the ZLDC project on the review of the Penal Code Act (PC) and Criminal Procedure Code Act (CPC) sought to enhance criminal procedure through, among others, increasing the efficiency of the Court and ensuring that the rights of accused persons and victims are protected.
Let’s look at some of the key recommendations that were made:
Discovery: A person who is accused of committing a crime should know what the charge is and the evidence that the prosecution will present to prove the charge, in order to defend themselves adequately. The process by which the prosecution and the accused person exchange information that is relevant to the case is known as “discovery”. The CPC provides for discovery in the High Court, but it does not provide for the same in the Subordinate Court. This results in what is commonly referred to as “trial by ambush” in the Subordinate Court. “Trial by ambush” is inconsistent with the Constitution of Zambia, which protects the right of an accused person to adequate time and facilities to prepare his defence. The Commission therefore recommended that discovery be introduced in the Subordinate Court.
Victim impact statement: In countries like South Africa and America, when an accused person is convicted of having committed a crime, the victim of the crime, their family members or their friends have the option to submit an oral or written statement to the court explaining how the crime has affected them. This statement is known as a victim impact statement, and is meant to aid the court in determining what the appropriate sentence should be. Stakeholders submitted that victim impact statements are a positive way for victims to participate in the process of sentencing. The Commission recommended that victim impact statements be introduced in the CPC.
Age limit for intelligence test for child witness: Whilst there is no age limit for one to give evidence as a witness in court, the Juveniles Act states that where that person is below the age of 14 years, that person must first pass a test of intelligence. The test of intelligence is meant to determine whether the child understands the difference between right and wrong and the duty to tell the truth. Stakeholders submitted that the age be reduced to 10 years, as it would be safe to assume that a child of 10 years is of sufficient intelligence. The Commission therefore recommended that the age be reduced from 14 years to 10 years in accordance with submissions.
Use of information communication technologies: The Commission was of the view that it was necessary to incorporate technological advancements into the law. It therefore recommended that the CPC be amended to allow for the parties to a matter to appear in court through video conferencing facilities where the Court permits it. The reasons for permitting it may include the need to comply with Covid 19 guidelines that restrict physical meetings, and where attending court in person would result in inordinate expenses. Video conferencing facilities have been used pursuant to the Anti-Gender Based Violence Act for the trial of gender based violence related offences, in order to protect the victims of a crime from being re-traumatised by being in the physical presence of the perpetrator.
Jurisdiction of courts to try foreigners: The PC provides that the Zambian courts may try a foreigner for an offence committed partially or wholly in Zambia. However, stakeholders submitted that there was need to extend the jurisdiction of the court to enable them to try a foreigner who commits an offence against a Zambian national outside Zambia, similar to what is provided for in the Anti-Terrorism and Non-Proliferation Act. The Commission therefore recommended that the jurisdiction of the court be extended in accordance with the submissions.
Preliminary inquiry (PI): Some serious criminal offences like murder and treason can only be tried in the High Court. Before the High Court can try the matter, the Director of Public Prosecutions (DPP) is required to issue a certificate committing the case to the High Court for trial. Alternatively, the Subordinate Court may hold a PI, which is a hearing that is used to determine whether the evidence assembled by the prosecution is sufficient to proceed with trial in the High Court. The Commission recommended that the PI be removed from the CPC as the issuance of the certificate by the DPP is adequate. This recommendation was supported by stakeholders who submitted that the PI extended the time that accused persons were held in remand as it is a lengthy process; it is an unnecessary expense on the state and witnesses as it operates like a mini trial; and that it was rarely resorted to.
Our article next week is titled “The beginning and the end of criminal proceedings”. Don’t miss it!
Email us: Research@zambialawdevelopment.org