INSTITUTION OF CRIMINAL PROCEEDINGS
In criminal cases, the starting point is the investigation and then an arrest where a
person is charged with an offence and then brought to court. In addition Section 90 of
the Criminal Procedure Code (CPC) empowers individuals who feel aggrieved by
behavior they perceive as criminal to file a complaint before a magistrate. This
complaint can be either verbal or written and it also provides for bringing before a
magistrate of a person who has been arrested without warrant.
In either case it falls upon the magistrate to ascertain whether the complaint outlines an
offense and subsequently decide whether to issue summons or a warrant against the
accused. Prior to the issuance of a warrant, a formal charge must be formulated,
detailing the circumstances surrounding the alleged offense, as established in the case
of R v Musango Brothers (5 Northern Rhodesia Law Reports 599).
Upon lodging the complaint, the magistrate may issue either summons or a warrant. As
per Section 91(1) of the CPC, a warrant of arrest is only issued if the complaint was
made under oath. If the complaint is not sworn but is provided in writing or verbally,
the court will issue summons instead. If the accused fails to appear in court despite
being served summons, the court can issue a warrant for their arrest, even if the initial
complaint was not made under oath, as exemplified in the case of Mulaisho v The
People (1969) ZLR 124.
In the scenario of a private prosecution, the individual who filed the complaint can
personally conduct the prosecution, regardless of whether they are a qualified advocate
(as per Section 90). However, if they are unable to prosecute, only a qualified advocate
can do so on their behalf, as established in the cases of Paul Jeremiah Lungu v The
People (1978) ZLR 298 and The People v Chaponda (1973) ZLR 175. The person on
whose behalf the lawyer prosecutes is identified as the complainant (Section 90).
In cases where the police bring the accused to court, the State is considered the
complainant, and the victim becomes a witness.
INTRODUCTION TO ARREST
In criminal proceedings, the initial step involves the apprehension of the individual,
who is then formally accused of an offense and subsequently brought before a court.
DEFINITION OF ARREST
According to Obsorns concise law dictionary 10th Ed, page 37, “To arrest a person is to
deprive him of his liberty by some lawful authority, for the purpose of compelling his
appearance to answer a criminal charge, or as a method of execution. An arrest may be
lawfully made by a person authorised to make it by warrant which is lawfully issued
and signed by a justice of the peace or other judicial authority.”
Further Obsorns concise law dictionary 10th Ed, page 37 state that there are different
types of arrest:
1. Summary arrest (arrest without warrant)
2. Powers of arrest attached to an occupation order made under family Law Act
Section 26 of the Criminal Procedure Code (CPC) outlines the offenses for which a
person can be apprehended by a police officer, either when the offense has been
committed, is about to be committed, or is currently being committed. Such offenses are
termed as cognizable offenses. The definition of a cognizable offense is provided in
section 2 of the CPC, which refers to the first schedule of the CPC were a police officer
can arrest without a warrant. However, for certain offenses, a police officer necessitates
a warrant from the court before effecting an arrest.
Section 30 of the CPC mandates that an individual arrested without a warrant must be
promptly presented before a court. Recognizing the practical limitations, section 33
allows the police to conditionally detain such individuals. As exemplified in the case of
Mutemwa v AG (1979) ZLR 251, the urgency of the offense determines the duration of
detention without a warrant. For less serious offenses, individuals must be brought
before a court within 24 hours; otherwise, they may be released on police bond. For
more severe offenses, detention may extend beyond 24 hours.
Additionally, the law permits private citizens to apprehend individuals for certain
specified offenses (as per section 31 and 32 of the CPC).
Furthermore, sections 35 and 36 of the CPC provide provisions for arrest by a
magistrate, albeit these provisions are seldom employed.
According to S 18 (1) CPC the arrest must be by touch or the body of the person must
be confined. Subsection (2) of the same provision states that if the person is resisting
arrest, force can be used. S22 CPC provides that an arrested person will be searched
and all his articles kept in safe custody. Further S24 CPC provides that an arrested
women will be searched by a fellow woman.
Regarding arrests, reasonable suspicion, rather than proof beyond a reasonable doubt,
is sufficient evidence. This principle was established in the case of Daniel Chizoka
Mbandangoma v The Attorney General (1979) ZLR 45. To be lawful, the person
effecting the arrest must inform the suspect of the reason for their detention, as outlined
in The Attorney General v Sam Amos Mumba (1984) ZLR 14. The law permits the use of
reasonable force during an arrest, and the arresting officer is authorized to enter
premises where the suspect was located immediately before the arrest, even without a
warrant, as per Section 22 of the CPC.
Section 118 of the CPC provides for investigators to obtain search warrants from a
court, as established in Liswaniso v The People (1976) ZLR 277. Despite the rule of law
regarding the admissibility of involuntary confessions, illegally obtained evidence may
still be admissible if relevant, irrespective of whether it violates constitutional
provisions. This was upheld in Liswaniso v The People (1976) ZLR 277, where evidence
obtained from an irregular search warrant was deemed admissible because it was
relevant to the case.
Bail
Section 33(1) of the Criminal Procedure Code (CPC) permits the detention of
individuals suspected of committing an offense at a police station for a reasonable
duration. Furthermore, this provision stipulates that if a person is arrested for a minor
offense and cannot be brought before a court within 24 hours, they must be released by
the officer in charge. This was demonstrated in the case of Re Siuluta and 3 Others
(1979) ZLR 14, where applicants were detained by the police for further inquiries
without being formally charged.
During the bail application, counsel for the applicants argued against the practice of
detaining individuals for investigation purposes and opposed the denial of bail to
individuals without formal charges. The court ruled that the police are authorized to
arrest individuals only for offenses and lack the authority to detain individuals solely
for inquiry purposes.
Section 123 of the CPC enumerates offenses that are non-bailable, including treason,
misprision of treason, murder, aggravated robbery, offenses punishable by death, theft
of motor vehicles for repeat offenders, and espionage (unless the Director of Public
Prosecutions issues a certificate of non-admittance to bail).
Additionally, under the Narcotic Drugs and Psychotropic Substances Act, Section 43
designates certain offenses as non-bailable. However, in Lanton, Edwards and Thewo v
The People (1998) selected judgments 30, it was determined that importation of drugs is
a bailable offense despite being initially considered non-bailable under the Act.
Section 123(2) specifies that individuals seeking bail must furnish a bond, either
individually or with sureties. The law does not prescribe a specific amount or
conditions for bail, although Section 126(1) mandates that the bail amount must not be
excessive. Bail can be provided through one's own undertaking, a deposit of money, or
property. In case of a breach of bail conditions, as illustrated in Hiteta v The People
(1976) ZLR 21, the prosecution must prove beyond reasonable doubt that the surety was
negligent or intentionally failed to fulfill their responsibilities to ensure the accused's
court attendance.
Police bail/bond
This type of bail, known as police bond and authorized by Section 33, is granted directly
by the officer in charge of the police station without the need for a formal application
process. To secure this, the individual must sign a bond agreement, which may require
the presence or guarantee of a surety. The granting officer retains the authority to
revoke police bail at any time prior to the suspect's appearance in court.
Additionally, Section 124 of the Criminal Procedure Code (CPC) empowers the
releasing officer to impose supplementary conditions. Typically, these conditions
include the provision of one or two sureties and an agreement to pay a specified sum of
money. Common additional conditions might include requirements for the suspect to
report to the police station daily at a designated time or to refrain from leaving the town
without prior notification to the police. In cases involving foreigners, the surrender of
the passport may also be mandated.
Bail pending trial
Section 123(1) of the Criminal Procedure Code (CPC) enables individuals accused of
bailable offenses to seek bail before the commencement of their trial. This application
can be made orally or through the submission of a summons accompanied by an
affidavit. The affidavit must be sworn by the applicant, although in exceptional
circumstances, such as when the applicant is a minor, it may be sworn by a third party.
The considerations for a bail application were outlined in the case of Oliver John Irwin
v The People (1993/4) ZLR 54, which include:
The nature of the charge and the potential punishment
The type of evidence against the applicant
The likelihood of the case being prejudiced if the applicant interferes with
witnesses, absconds, or commits another offense
Whether the accused would suffer prejudice if not remanded
Initially, the bail application must be made in the subordinate court. If bail is refused,
the application can be renewed in the High Court as per Section 123(3). This provision
also covers bail renewal in the High Court for matters being tried in the subordinate
court. The court is obligated, per The People v Benjamin Sikwiti Chitungu and Others
(1990/92) ZLR 190, to inquire into the reasons for the cancellation of the accused's bond
by the police and grant bail if not satisfied with the reasons.
Under Section 18(1) of the Court of Appeal Act, the Court of Appeal only entertains bail
applications if there is a pending appeal. Therefore, if the High Court rejects a bail
application during the trial, there is no recourse. Section 126(3) empowers the High
Court to amend or reduce bail conditions imposed by the subordinate court, as
illustrated in Faustin Kabwe and Another v The People (2011) 2 ZLR 186.
Section 137 allows for the variation of bail conditions in cases of mistake or fraud
during the initial bail grant. A surety guarantees the accused's court attendance until
judgment. Section 128 permits a surety to be discharged, with the court issuing an arrest
warrant, but only when the accused is present. Section 131 provides for the forfeiture of
pledged amounts by the accused or surety in case of breach, as discussed in R v Ritary
and Another 2 NRLR 67, clarifying that forfeiture is discretionary, not mandatory.
*for criminal matters, you cannot appeal on interlocutory matters.
Bail pending confirmation of sentence
S13 CPC allows a person who has been convicted by a magistrate who's sentence
requires confirmation, to apply for bail pending the confirmation of that sentence. It is
limited to a situation where the magistrates sentence requires confirmation.
Bail Pending Appeal
Section 332 of the Criminal Procedure Code (CPC) allows individuals who have been
convicted by the Subordinate Court and have appealed to the High Court to seek bail
while awaiting the appeal hearing. The prerequisite is that the individual must have
been convicted and sentenced by the Subordinate Court and subsequently appealed to
the High Court.
In the case of Valentine Chula Musakanya and Another v The People (1983) ZLR 96, it
was established that an appeal cannot be lodged before sentencing has been
pronounced. Similarly, Mayonde v The People (1976) ZLR 129 stipulates that before
applying for bail pending appeal, the appellant must file a notice of appeal.
Section 332 pertains to appeals from the Subordinate Court to the High Court.
Additionally, Section 336 of the CPC addresses situations where an individual has been
convicted by the High Court and has appealed or applied for leave to appeal to the
Court of Appeal. Appeals from the Subordinate Court to the High Court are automatic,
while appeals from the High Court may require leave to appeal to the Court of Appeal,
depending on whether the case originated in the High Court or was appealed to it.
When an individual is convicted in the Subordinate Court and sentenced in the High
Court, no leave to appeal is necessary, and the appeal proceeds to the Court of Appeal.
However, when a conviction is affirmed in the High Court, leave to appeal is required.
Section 336 also allows a court that denies bail to treat the appellant as an unconvicted
prisoner, as established in Mariot Katenga Jamu v The People (1981) ZLR 99.
Nevertheless, the appellant will not be considered to have served their sentence.
Under Section 18(1) of the Court of Appeal Act, bail can only be granted by the Court of
Appeal if an appeal is pending before it. Similarly, Section 22 of the Supreme Court Act
stipulates that the Supreme Court will only grant bail if the Court of Appeal refuses to
do so, as illustrated in Kambarange Mpundu Kaunda v The People (1990-92) 18 ZR 215.
In the case of Stoddart v The Queen (1) 1954 NRLR 288, it was established that bail
pending appeal should be granted only in exceptional circumstances. The court
considers two factors in determining exceptional circumstances: the likelihood of the
appeal succeeding and whether the appellant would have served a significant portion
of the sentence by the time the appeal is heard. Therefore, the granting of bail largely
depends on the grounds of appeal.
Moreover, bail is more readily granted for shorter sentences, as demonstrated in Titus
Zulu and Another v The People (2010) 1 ZLR 450. The likelihood of success can be
shown by casting doubt on the correctness of the conviction or arguing that the
sentence is manifestly contestable, as per Anuj Kumar Rathi Krishna v The People
(2011) 2 ZLR 1. The court examines the grounds of appeal to determine whether they
are arguable, particularly regarding the lack of evidence supporting the conviction or
the manifest contestability of the sentence.
Constitutional bail
The Constitution stipulates that individuals who have been arrested and charged with a
criminal offense must be charged within a reasonable period. If a trial cannot be
conducted within a reasonable time, the individual should be released on bail. This type
of bail, known as constitutional bail, is derived directly from the constitution.
Historically, applications for constitutional bail have been exclusively made to the High
Court. This practice is grounded in the fact that such situations constitute a breach of
the constitution, and Article 28(2) vests jurisdiction in the High Court for such matters.
Article 13(3) supersedes any laws that impose restrictions on offenses that are deemed
non-bailable. Therefore, even individuals charged with serious offenses such as murder
may be granted constitutional bail.
In the case of Chentankumar Shantal Parekh v The People (1995-97) ZR 98, it was
determined that bail may be granted when there has been an unreasonable delay in
proceedings, for which the accused is not responsible. The determination of what
constitutes reasonable or unreasonable delay is a matter of fact, and it is influenced by
the gravity of the trial. It's important to note that a bail application is considered an
interlocutory application, and no appeal can be lodged against a decision made in such
an application.
Charges and Information
Statement of Offence
Sections 134-137 of the Criminal Procedure Code (CPC) outline the procedures for
drafting the charge sheet and information. There are primary components of the charge
sheet:
1. Commencement: This section provides details regarding the location of the trial,
the court's jurisdiction, and, in the case of a subordinate court, particulars of the
accused individual, including name, gender, residential address, age, occupation,
village, chief district, postal address and tribe. It also specifies whether the
accused was arrested with or without a warrant and the location of the arrest.
2. Statement of Offence: According to Section 137(a)(i) of the CPC, the statement of
offense must specify the offense with which the individual is charged and the
relevant sections under which it was established. In cases where an offense is
defined by multiple sections, such as Sections 390 and 294 resulting in attempted
aggravated robbery or Sections 272 and 275 for cattle theft, the charge sheet
typically cites the section creating the offense and the section prescribing the
punishment.
3. Particulars of Offence: Section 137(a)(iv) requires adherence to the format
outlined in the second schedule of the CPC. The charge sheet should include the
full name(s) of the accused without abbreviation. Additionally, if a wrong name
is included, it does not invalidate the charge. Section 137(d) permits the
description of an unknown person as "person unknown" and allows for the
indication of multiple names or aliases.
In cases involving businesses, the charge may specify the business name, as
illustrated in R v Musango Brothers 5 NRLR.
4. Date of Offence: The charge sheet should include the date of the offense,
preferably with the month and year if known. In cases where the precise date is
unknown, it may state "on or about" a particular date or provide a range. Only
one date can be listed, representing the date the offense occurred. For instance, in
homicide cases, the date of the victim's death is considered the date of the
offense, as established in Salumema v The People (1965) ZR 4. Time becomes
significant in offenses such as selling alcohol before certain hours or burglary,
where the time of the offense must be specified.
5. Place of Offence: It is customary to include the town, district, province, and
country where the offense occurred. For offenses like causing death by
dangerous driving, the specific road may be indicated. When multiple
individuals are involved, their specific roles may not be detailed; instead, the
charge may state that they acted jointly. Section 21 of the Penal Code addresses
parties to the offense.
Section 137(c) mandates that in cases involving property ownership, the owner of the
property must be named. Therefore, in theft cases, the charge must identify the owner
of the stolen property, which can present challenges in cases involving property
ownership disputes.
The rule against duplicity
The ideal scenario is for a charge sheet to encompass only one offense. When a charge
sheet includes more than one offense, it is considered defective due to duplicity, as
established in the case of Shamwana and 7 Others v The People (1985) ZR 41. Duplicity
occurs when a single count contains multiple offenses. This can happen in two ways:
(i) Combining two offenses in one count: For instance, in The People v Makhokha (1967)
ZR 173, the defendant was charged with smuggling through an undesignated point,
resulting in duplicity. An exception to this rule is seen in cases involving burglary and
theft, where both offenses can be included in one count, as affirmed in R v Kantolombo
White and Copper Kalungula 4 NRLR 217.
(ii) Repeating the same offense within one count: Cases such as Patel v The People
(1969) ZR 132, Nsama and Others v The People (1976) ZR 171, and R v Donald Phiri 4
NRLR 82 demonstrate instances where duplicity arises from including identical offenses
within a single count.
Duplicity is evident when there are multiple offenses, dates, items stolen, or victims
listed within a single charge. When a charge is deemed defective due to duplicity, it can
be challenged, and one can seek to have it quashed. However, the court may decline to
quash the charge if it can be rectified through amendment.
Joinder of Counts
Section 135 permits the inclusion of two offenses committed by the accused person in a
single charge sheet or information under certain conditions:
1. The offenses must be based on the same set of facts. For example, offenses such
as hunting without a license, accompanied by a dog, and using an unlicensed
firearm can be combined as they are all related to the same incident.
2. The offenses must constitute a series, meaning they are the same offense
committed on different occasions but are part of a connected sequence.
3. The offenses must be of a similar character, indicating a pattern or similarity in
behavior, as illustrated in the case of R v Goldman.
According to Section 135(2), when multiple offenses are included, each offense should
be delineated in a separate count and listed consecutively. This practice was reinforced
in the case of Fluckson Mwandira v The People (1979) ZR 174.
Joinder of Accused Persons
Section 136 of the Criminal Procedure Code (CPC) permits the charging of two
individuals in a single count, as illustrated in the case of R v Sukuni Kangombo and 2
others 4 NRLR. This provision typically involves the inclusion of the terms "jointly" and
"whilst acting together" in the charge sheet. It can be applied in two scenarios: either by
charging two accused persons in one count, or by including two counts with different
accused persons in a single charge sheet or information. For instance, if three
individuals plan to commit theft and, upon reaching the location, two of them steal
from one house while the third steals from another, the charge sheet may contain two
counts: one involving accused persons A and B stealing from X, and another involving
accused person C stealing from Y.
The conditions for utilizing this provision include:
The accused persons committing the same offense under similar circumstances.
Different offenses being committed within the same transaction.
Aiding or abetting the commission of an offense.
Sections 135(3) of the CPC grants an accused person jointly charged with another the
right to apply to be charged separately if they believe it would be challenging to defend
themselves jointly. This provision aims to address concerns related to the defense
strategy. For instance, in the case of R v Chakopa Maulu Nelson Chembela 5 NRLR 208,
the accused sought separate trials to enable them to call their co-accused as a witness.
It's important to note that while an accused person cannot be compelled to give
evidence, separate trials may afford them the opportunity to do so.
Objections to the Charge sheet/Information
A charge may be deemed defective if it violates sections 134-137, such as when multiple
offenses are included in a single count. Additionally, objections can be raised if a charge
is filed beyond the statutory time limit for prosecution. Section 219 of the Criminal
Procedure Code (CPC) stipulates that offenses carrying a maximum penalty of six
months' imprisonment and/or a fine not exceeding 1000 penalty units must be
prosecuted within 12 months of the offense being committed. Similarly, the Electoral
Act sets a one-year time limit for charging individuals with election-related offenses,
while the Road Traffic Act requires prosecution within specific timeframes for certain
traffic violations.
It's important to note that the violation of these time limits can potentially be remedied
with the consent of the Director of Public Prosecutions (DPP). However, Zambia lacks a
statute of limitations for criminal offenses, meaning there's no time limit within which
charges must be filed.
Another ground for objecting to a charge is if the alleged misconduct wasn't a criminal
offense at the time it occurred. Article 18(4) of the Constitution clarifies that criminal
offenses do not have retroactive effect. Moreover, if the penalties for a crime change, the
individual will be sentenced based on the penalties in place at the time of the offense.
Additionally, objections may arise if the charge is based on a non-existent offense, such
as when the accused is charged under a repealed law or a provision that doesn't
constitute a criminal offense. However, ongoing prosecutions are generally unaffected
by the repeal of a law, as specified by constitutional and statutory provisions.
Jurisdictional issues can also lead to objections to charges. Section 11 of the CPC
delineates which offenses fall under the jurisdiction of the High Court or the
Subordinate Court, and objections can be made on these grounds.
Furthermore, objections may be raised if the accused enjoys immunity from criminal
prosecution. This immunity can apply to individuals such as the President, Vice
President, minors under the age of 8, and diplomats under the Diplomatic Immunities
and Privileges Act.
When objections are raised against a charge sheet or information, the court may either
quash the document or allow for its amendment. Quashing occurs when a charge is
found to be fundamentally flawed, leading to the discharge of the accused. However,
charges can be amended to rectify deficiencies, with the court considering factors such
as potential prejudice to the accused.
While there's no limit to the number of counts that can be included in a charge sheet or
information, excessive counts may lead to practical issues and unfairness to the accused.
Prosecutors are therefore advised against overloading charge sheets or informations to
ensure fair proceedings.
