…ZLDC’S PRIMARY FUNCTION IS LAW REFORM
Months ago, the mainstream media and social media networks were awash with stories of the Zambia Law Development Commission’s report and recommendations on the review of Zambia’s principle criminal laws the Penal Code Act (PC) and the Criminal Procedure Code Act (CPC). Public reactions and sentiments on the recommendations were varied, interesting and misleading.
Let’s start with how the law reform process commences and who can commence it. Without delving into a constitutional or administrative law lecture,- in our system of government the responsibility to develop legislation is the legislature’s (Parliament); in actuality and practice, law reforms are initiated by the Executive arm of government through line ministries responsible for administering a particular piece of legislation or sector, by civil society organisations through advocacy and lobbying or as a result of a judicial decision.
All these forms of initiating law review identify a gap or challenge in the law or in practice that requires be addressing, clarifying or resolving. For instance, review of the PC and CPC was initiated by the Ministry of Justice , development of the Persons with Disabilities Act was a result of successful advocacy and lobbying by the disability movement and the removal of corporal punishment from the Penal Code, Prisons Act (now repealed and replaced with the Zambia Correctional Service Act) and the Education Act, loss of seats by members of Parliament who cross the floor and amendment of electoral legislation to facilitate voting by persons in incarceration were a result of judicial decisions.
The Role of ZLDC
The Zambia Law Development Commission is a public body established by an Act of Parliament - the Zambia Law Development Commission Act Chapter 32 of the laws of Zambia. The Commission’s primary function is law reform. The Commission recommends the revision and reform of the law and the codification of unwritten laws, reviews and considers proposals for law reform referred to it by the Minister of Justice or members of the public, holds seminars and conferences on legal issues and translates legislation into local languages. The Commission also conducts research and makes recommendations on the socio-political values of the Zambian people that should be incorporated into legislation, the anomalies or archaic provisions that should be removed from the statute book, new and more effective methods of administration of the law and the dispensation of justice that should be adopted and legislated and new areas of the law that should be developed which are responsive to the changing needs of the Zambian society.
In 2011, the then Minister of Justice late Honourable George Kunda, SC instructed the ZLDC to review the Penal Code Act and the Criminal Procedure Code Act, Chapters87 and 88 of the Laws of Zambia. The instruction was prompted by calls from stakeholders in the sector who observed that, the two Acts have never been comprehensively reviewed since they were enacted in 1931 and 1933 respectively, and as a result, they have archaic provisions that reflect a colonial legacy, do not reflect contemporary times and it was time for the country to replace such laws with home grown legislation. It was further observed that over the years, specialised Acts that contain criminal offences and penalties have been enacted, and this has resulted in inconsistent penalties for similar criminal conduct.
The review objectives were to:
- Develop comprehensive criminal legislation;
- Address the question of whether or not to consolidate all offences in the Penal Code Act and all criminal procedure in the Criminal Procedure Code Act;
- Iidentify and remove archaic provisions;
- Iidentify lacunae in order to introduce suitable provisions; identify and recommend the adoption and domestication of international and regional best practice and provisions.
To undertake this review the Commission used its established methodology which is largely the qualitative method. This consisted of a desk study to review international and regional human rights and criminal law treaties, protocols and other standards, the Constitution, various acts of Parliament, judicial precedents and policies; comparative study visits to countries that were identified as having progressive criminal law systems and practices. During the stakeholder consultative process, stakeholders identified Canada, Hong Kong, Australia, Uganda, South Africa and Zimbabwe as countries from which Zambia could adopt best practice. Comparative study visits to these countries were subsequently undertaken in 2015, and researchers conducted interviews with the relevant officials at key institutions. Later, during the desk review the comparative study was extended to Kenya, Lesotho and Rwanda being African countries identified to have best practices in relation to specific aspects of criminal law and similar socio-economic environments as Zambia.
The ZLDC Act requires that a law review process include stakeholder consultations in order to ensure that legislation is reflective of the socio-political values of the Zambian people. Indeed, any law reform or law development process requires the participation and involvement of every citizen/person if the process is to yield legitimate, applicable and acceptable legislation.
In this regard, the ZLDC conducted a stakeholder mapping exercise to identify key actors in the criminal justice system, held stakeholder consultative meetings in Lusaka, Central and Southern provinces in 2014 and a national consultative and validation meeting on a virtual platform in 2021. The stakeholders that participated in the meetings included representatives from regional organisations, government ministries and departments, the Judiciary, the Law Association of Zambia, civil society organisations, and academia. A call for submissions from members of the public was also made.
The stakeholder engagements were designed to provide a platform for stakeholders to deliberate on problematic areas of the law and to propose solutions. The later part of the review process was overseen by a Technical Committee of experts in criminal law appointed by Cabinet office in 2016.
Our key findings and recommendations whose details we will share in the coming weeks centre on the removal of derogatory, archaic and colonial provisions, enhancing certainty, predictability and fairness in the administration of criminal law, and incorporating human rights principles.
Our article next week is titled ‘Sex and the law’ - Don’t miss it!
If there is a law you think is outdated and no longer relevant to Zambia or you think can be improved, or if there is a new area of law you think we should develop we would be happy to hear from you.
‘Till then, stay safe, social distance and mask up!
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Email us: Research@zambialawdevelopment.org or info@zldc.org.zm
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