Institutional development
The criminal justice system in Zambia. enhancing the delivery of security in Africa
The need for interaction between the customary criminal justice system and the formal system in Zambia
Authors:
Publisher:
Institute for Security Studies, South Africa, 2009
This paper reviews the Zambian criminal justice system and draws attention to the need for reforms in that will enhance human security. It notes that Zambia has made great progress since the re-establishment of a multiparty democracy since 2002 - but there are still serious gaps in its criminal justice law reforms. Capacity gaps remain serious and so do corruption and human rights violations in the treatment of prisoners.
The paper finds that the most distinctive feature of Zambia’s legal system is its duality, comprising common law and customary law. These systems, which exist parallel to each other, create a troublesome paradox. Although general law is the constitutionally recognised law, it is known and accessed by a minority of the population. The majority of Zambians know, understand and access customary law which is informal, flexible and geared to the needs of the people it serves. And yet, the traditional courts that administer customary law are not recognised by statute as part of the judiciary. Even their existence is not acknowledged. This dualistic and asymmetric legal system creates problems in the delivery and administration of criminal justice in the country.
The authors recommend that:
- The government should strengthen and intensify projects already under way to implement human rights standards, guard the independence and impartiality of the judiciary, and improve infrastructure and conditions of service of adjudicators.
- Zambia should place an immediate moratorium on the use of the death penalty. This would also align Zambia with international and regional trends towards abolition of the death penalty.
- Governmental and non-governmental legal aid institutions require resources and support to improve access to justice by the poor.
- The training of paralegal personnel should be formalised and guidelines developed to ensure a professional standard of work.
- The management of cases within the judiciary should be improved.
- It is essential to improve coordination and networking of agencies involved in the delivery of criminal justice and to strengthen partnerships between the government and NGOs.
- Legislation relating to juvenile justice should be reviewed and modernised
- Customary law is based on oral traditions and as such is subject to misinterpretation. It is therefore necessary to properly document the system.
- The customary criminal justice system should be reformed by restoring the position of chiefs.
- Records should be kept of customary tribunal proceedings.
- Officials (headmen and chiefs) should receive training in basic human rights principles.
- The interaction between the customary criminal justice system and the formal system needs to be improved.
