Charles Mwewa
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Charles Mwewa's, "Struggles of My People" Helps Zambia

GODFREY KUNDA KAOMA, STUDENT, UNZA LAW SCHOOL

   

INTRODUCTION


This assignment discusses thoroughly the conception of the criminal legal network system in crime and criminal law. To achieve that aim the paper shall first endeavour to define criminal law and what a crime is. It will be discussed that criminal law is the body of rules and regulations that defines and specifies punishments for offenses of a public nature or for wrongs committed against the state or society.[1]Human beings are social beings by nature, therefore interactive. There is therefore need for law to govern the way human beings interrelate in the society. However, each individual has rights and when the rights are violated criminal law asserts that the offender must pay for the offence. Concurrently, every individual’s rights end where he or she violates another individual’s rights. In Charles Mwewa’a book[2], under Part IV which includes chapter 11, 12, 13 and 14 inter alia he addresses the relationship of Law and Rights, additionally in chapter 32 the author provides a dual approach to discussing the prosecution’s and the defence’s side. In due regard of the foregoing, this essay is an attempt to convey a critical analysis of criminal law as practiced in courts, parliament and elsewhere, and on its limitations and strengths in relation to the views of Charles Mwewa in his book Zambia: Struggles of my people (Western Contribution to Corruption and Underdevelopment in Africa in chapters 11, 12, 13, 14 and 32. The essay will be undertaken by making reference to different sources of law including local and foreign legislation, judicial decisions, books, journals and other relevant publications. 

Having discussed the above, the paper shall proceed to give a conclusion.


UNDERSTANDING THE RATIONALE OF CRIMINAL LAW


A crime is defined as an act (or sometimes a failure to act) that is deemed by statute or by the common law to be a public wrong and is therefore punishable by the state in criminal proceedings.[3]From the definition, the nature of criminal law is that it is punitive. Criminal law defines the acts, omissions or state of affairs which amount to crime. According to Allen,[4] criminal law, limits and controls the legitimate exercise by the State of its coercive power to investigate crime and prosecute, convict and punish criminals. This means that criminal law also places limits on what the state can do. This entails that if something is not provided for in the law, the state will be acting illegally if it goes ahead with such an action as to punish

Secondly, the rationale of criminal law is that it should be written down, as asserted in Article 18 (8) of the Constitution of Zambia, no person shall be convicted of a criminal offence unless that offence is defined and the penalty is prescribed in a written law:


Provided that nothing in this clause shall prevent a court of record from punishing any person for contempt of it notwithstanding that the act or omission constituting the contempt is not defined in written law and the penalty therefore is not so prescribed.[5]


Criminal offences in Zambia are, as a general requirement of constitutionalism, statutory offences. They are statutorily defined with specific penalties.[6] It also means that a person should not be prosecuted for a conduct which was not previously made criminal and for which no penalty had been provided for. Therefore, the rationale and nature of criminal law is that it should be written down and that it is punishable by law.


PURPOSE AND FUNCTIONS OF CRIMINAL LAW


The purpose of criminal law is; to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individuals or public interests.[7]Secondly, to subject to public control persons whose conducts indicate that they are disposed to commit crimes. Thirdly, to safeguard conduct that is without fault from condemnation as crime. It gives warning of the nature of conduct declared to be an offence and differentiates on reasonable grounds between serious and minor offences.[8] 


The main function of criminal law is to punish, nonetheless, the main purpose of punishment is retribution; the person if found guilty by courts of law must be made to pay for his or her actions. Hence, retribution and moral blame worthiness.[9]According to Allen, the punishment inflicted, must not represent a blind act of vindictive retaliation; it must be both reasoned and reasonable. The punishment the criminal deserves must bear some relationship to the harm he has caused. Punishment can only be considered reasonable where the courts respect the concept of proportionality.[10]


Justice and equality, is another function of criminal law; the judge seeks to do justice by imposing the sentence the criminal deserves. Nevertheless, he also strives to be just in another and sometimes conflicting way, that is, by treating the criminal before him equally with others who have an equal degree of guilt.[11]Equality of treatment is very important and seen as fundamental to justice.


On another hand, criminal law seeks to protect the public; the main objective of criminal law is to protect the general public from harm. It is the deterrence aspect of punishment which is prominent here; and there is no doubt that judges do believe in the value of punishment both as a deterrent to the person sentenced, to would be offenders and to the general public.[12]


One major aspect of criminal law is the reformation of the offender; much of the Penal legislation is directed at rehabilitating the offender. Reformation is not the main object of sentencing, deterrence also comes in.

  

SUMMARY OF THE CHAPTERS UNDER REVIEW

SUMMARY OF CHAPTERS UNDER REVIEW


Chapter Eleven introduces the Rule of Law in Zambia and answers the question of whether law rules in Zambia. In Chapter Twelve, human rights are discussed. The chapter reminisces on what has historically been considered human wrongs and why they have ascended to human rights in the 21st Century. Chapter Thirteen lays bare the issue of repression in Zambia. Real victims are allowed to retell their ordeals and from their account lessons are learned that future Zambian leaders should take to heart in their quest to create a strong, free and democratic nation. Chapter Fourteen discusses criminal justice in Zambia and the state of Zambian prisons.[13]

Chapter Thirty-Two is a detailed look at what is called the Chiluba Matrix. The author provides a dual approach to discussing the Matrix. The prosecution’s side is explored and the defence’s side is discussed later. The author draws upon the reasoning of the two camps to give an objective analysis of the Matrix.[14]



STRENGTHS AND WEAKNESSES OF CRIMINAL LAW


In chapter 11, the author addresses the notion that law is said to perpetuate disparities that keep the poor where they are and elevates the rich and powerful to an even loftier glory.[15]Thereby, suggesting that criminal law protects the elite, the governors. Mwewa contends that; in developing countries, there exists an economic chasm between the governors and the governed. The governors are said to belong to an elitist club while the majority of the ruled grope into the very jaws of poverty. The ruling class, or the politicians, usually in power, enjoys all the economic benefits of the land while the ruled are eluded by wealth. They struggle to earn and keep a living and are subjected to oppressive and demeaning working conditions. Most are unemployed and are used as capitalistic pawns.[16]


To survive, the poor tend to commit what are known as crimes of poverty. This is cogent with most crimes that are highlighted in the penal code[17]such as aggravated robbery and theft which are committed by the poor. Additionally, as averred in section 316 of the penal code; any person who willfully procures or attempts to procure for himself or any other person any registration, license or certificate under any Act by any false pretense, is guilty of a misdemeanor and is liable to imprisonment for one year.[18]This is an offense that can only be committed by an individual who has no money. 


Poverty, and the subsequent crimes arising from it, undermines the Rule of Law. As a Zambian statesman has succinctly put it, “An empty stomach knows no law.”[19]Muhammad Yunus, founder of Grameen Bank and winner of the 2006 Nobel Peace Prize, argues:


Poverty is perhaps the most serious threat to world peace, even more dangerous than terrorism, religious fundamentalism, ethnic hatred, political rivalries, or any of the other forces that are often cited as promoting violence and war. Poverty leads to hopelessness, which provokes people to desperate acts. Those with practically nothing have no good reason to refrain from violence.[20]


It is lucid to note that crime is as a result of poverty; consequently, criminal law seems to be for the governed and not for the elites. Therefore, in Zambia, the Rule of Law must move in tandem with the fight against poverty. People are reluctant to obey good laws when such laws bring them no benefit. Mwewa[21]adds that what does it profit a poor soul to obey all the laws and still lose this world?


“There is no liberty, if the Judiciary power be not separated from the Legislature and Executive.”[22] Chapter 11 also addresses the aspect of the independence of the Judiciary. Mwewa[23]states that the idea of an independent Judiciary should be a vital presence in Zambian politics and should be part of its constitutional order. In reality, there is no such a thing as an independent Judiciary because by definition independence means, “not subject to control of any person…free to act as one pleases.”[24]The Judiciary,[25]especially the judges and justices, is so constrained by administrative and procedural requirements that it is not feasible to be said to be independent. This was argued in the case of Kambarage Kaunda vs The People[26] that the Judiciary is not independent of interference.


Implicit in President Chiluba's statement is the view that the verdict has far-reaching implications for the independence of the judiciary and for public confidence in the system. The gist of the public outcry was that it was paradoxical for the Supreme Court to dismiss evidence of several prosecution witnesses on the ground that they were close to the deceased while the Chief Justice was close to the Kaunda family, not only through his membership of Kenneth Kaunda's David Universal Temple, a mystic organization ostensibly dedicated to peace, but through marriage as well.


The Minister of Legal Affairs has even accused him of "hand-picking" the appeal panel,[27]and thus excluding the Deputy Chief Justice, who, as Judge President of the Supreme Court, is supposed to select judges to hear appeals. Further, soon after the trial judge sentenced Kambarage to death, Silungwe, CJ., is said to have personally taken charge of the preparation of court records which was done at the offices of the appellant's counsel instead of the High Court.

This has raised questions as to the interest of the Chief Justice in the matter. Questions have also been raised as to the speed with which the appeal was heard by the Supreme Court.[28]

One of the functions of criminal law is Justice and equality; the judge seeks to do justice by imposing the sentence the criminal deserves. However, this is not achieved when the judiciary as the epitome of justice is interfered with.


Chapter 12 discourses respect of human rights and dignity. One of the functions of criminal law as elucidated above is protection of the public; the main objective of criminal law is to protect the general public from harm.[29]All humans need to be treated with respect and dignity. Even the servant in your house deserves respect.[30]As a result, offences such as criminal defamation,[31]unlawful assault and sedition inter alia have been created in order to protect the public and their dignity from harm.[32]Criminal law therefore covers affairs that protect human rights.

In chapter 13, it is stated that between 1991 and 2002, there were a spate of suspicious deaths and murders of high profile political figures in Zambia. All cases remain politically, and to some extent, legally, unsolved.[33]The author asserts that criminal law has in this case failed to uphold its purpose which is to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individuals or public interests.[34]

Wezi Kaunda, the son of former president Kaunda, and at the time of his murder, a political leader in the opposition UNIP was killed on November 3rd,1999 by Moses Mulenga and Amon Banda. “Mulenga told the Supreme Court sitting in Ndola that he robbed and murdered Major Kaunda and that he…did it out of banditry.”[35]However, Kaunda, Penza,[36]and Tembo[37] died under similar circumstances: armed men went to their homes at night and killed them in the presence of their wives. In each of the cases, if the wife was somewhere in the house, the husband was forced to the area where the spouse could witness the killing. What are the odds on chances that these killings were done by different people?[38]This articulation alleges that there is connection between politics and criminal law and that criminal in this aspect failed to uphold a free and safe democratic nation.


Chapter 14 addresses the criminal law reformation and one so apparent is the state of Zambian prisons and the immediate and pressing need to reform them. Geloo states that,

“It is no longer the insane or social misfits that inhabit the cells. People in other countries have been known to acquire degrees and other forms of education while in cells – this means they access books and write and their minds are kept alive.”[39]


Prisons, therefore, can be centers for reformation and knowledge enhancement. However, the Zambian prisons lack such facilities like books to reform the prisoners. One might ask, are prisoners only for punishment and not reformation. Further, explicated the reformation of the offender; much of the penal legislation should be directed at rehabilitating the offender.

The Human Rights Watch in April 2010 conducted a survey of six of the Zambian prisons namely; Lusaka Central Prison, Mukobeko Maximum Security Prison, Kamfinsa State Prison, Mumbwa Prison, Mwembeshi Commercial Open Air Farm Prison and Choma State Prison. The results showed that the prisons are overcrowded, for instance, Lusaka Central Prison’s capacity was designed in 1964 for 200 prisoners but as of April 2010, the prisoners were 1145.[40]


Is was further discovered for the detainees in the Zambian prisons, a third of them have never been convicted of any crime, are held behind bars and have life threatening consequences. Zambian prisons are death trap due to overcrowding, malnutrition, rampant infectious diseases, grossly inadequate medical care, and routine violence at the hands of the prison officers and fellow inmates.[41]


Mwewa charges that; the Zambian criminal justice system continues to be a big worry both in terms of access to justice and justice delivery.[42]Cogently, the research conducted by the Human Rights Watch highlighted that Prisoners who have yet to face trial routinely held at every facility with convicted prisoners in violation of international and Zambian law are held on remand for extended periods, exacerbating prison overcrowding. Interviews with inmates, prison officials and NGOs found such problems as police investigation failures, lack of bail, and lack of representation for accused persons keep individuals unnecessarily, and often unlawfully, incarcerated for extended periods of pre-trial detention. The large number of remand prisoners is a result of failures in the criminal justice system as a whole, including the Zambian Judiciary, Police, and Prisons services.


At Mukobeko Maximum Security Prison, one prisoner stated that he spent three years and seven months awaiting even an initial appearance before a magistrate or judge; another prisoner, now convicted and living at Lusaka Central Prison, said that he had spent 10 years not a convicted prisoner awaiting resolution of his case.[43]


The incarceration of not convicted detainees is clearly a major contributing factor to the prisons’ extreme overcrowding: At Lusaka Central Prison, 601 of the 1145 inmates more than half are remandees. Overall, 35 percent of the Zambian prison population is composed of remandees. Even given Zambia’s grossly inadequate prison conditions, the current cost to the government of incarcerating remand detainees unnecessarily for extended periods is not insignificant, and savings could likely be generated by increasing the use of bail instead of pre-trial detention.[44]

If democracy must work in Zambia, issues of this magnitude ought to be approached from a concrete, objective and pragmatic basis without the allowance for the venting of individuals’ personal vengeance.[45]In chapter 32, Mwewa posits that the government or the governors use criminal law in order to punish another’s’ conduct. Chapter 32, which addresses the Chiluba Matrix, explores the prosecution and defence’s side in the case of Chiluba.


Preliminary observations reveal that all the people involved in the so-called Chiluba Matrix, were either former Cabinet Ministers or close friends to both the Kaunda’s and Chiluba’s administrations. Most of them had kept silent for years before they decided to come out in the open. Some of them were drivers of the departments mentioned in the Matrix, such as finance, intelligence and foreign affairs. Although the analysis does not pour scorn on evidentiary issues, it, however, maims the credibility of the moving parties and their accusers.[46]


In the case of The People vs Hakainde Hichilema and five others,[47] it is argued that the state used criminal law to get at the opposition leader; this is because there was no criminal offence committed but traffic offence as averred in the case. This is coherent with the argument by Mwewa that issues of this magnitude ought to be approached from a concrete, objective and pragmatic basis without the allowance for the venting of individuals’ personal vengeance.[48]


CONCLUSION


In conclusion, it has been conveyed that modern societies such as Zambia consider themselves as democratic and their citizens as responsible women and men whose rights and freedoms must be respected. This concern is explicable by reference to the rule of law. To be enabled to safeguard individual rights and freedoms, the criminal law must concern itself with the established norms on the basis of which individuals or groups are prosecuted, and either found guilty and subjected to punishment or adjudged not guilty and acquitted, as the case may be. Some of the criminal law norms contain substantive rules of conduct and how criminal liability should be attributed and graded. 


From the discussion, it is seen that, the main aim of criminal law, is the protection of human person (against intentional or reckless violence, cruelty, molestation), the protection of property against theft, fraud or criminal damage), and the prevention (and deterrence of criminal behaviour).[49]As analyzed one way of curbing criminal behaviour is to curtail poverty levels in Zambia as has been affirmed in Chapter 11 of Charles Mwewa; poverty, and the subsequent crimes arising from it, undermines the Rule of Law.


The preposition may be expanded to include another fundamental reason for status having criminal law. It is that those who commit offences must be punished because they deserve punishment (retribution) for the offences they have committed. However, as expounded the criminal justice system has not been expedient in carrying out justice, because, as discussed; the judiciary lacks independence and matters are not dealt with on time especially of the poor. Furthermore, the governors tend to use criminal law in order to get at the opposition or that are no longer in power as averred in Chapter 32 of Charles Mwewa. Nonetheless, criminal law seeks to protect the rights and dignity of citizens. This needs to be clearly respected.

   

BIBLIOGRAPHY

STATUTES REFERRED TO:

The Constitution of Zambia, Cap 1 of the Laws of Zambia Penal Code Cap 87 of the Laws of Zambia

CASES REFERRED TO:

Lingens v Austria (1986) 8 EHRR 407 Kambarage Kaunda vs The People 1991

The People vs Hakainde Hichilema and five others 2017/HP/0888

BOOKS REFERRED TO:

Allen, M. J. Text Book on Criminal law. Oxford University Press, 2007 Oxford law dictionary, 5th Ed. 2003.

Hatchard, J. and Ndulo, M. Readings in Criminal Law and Criminology in Zambia. Lusaka: Multimedia Publications, 1994.

Kulusika, Simon. Text, Cases and Materials on Criminal Law. Lusaka: UNZA Press, 2006. Montesquieu, The Spirit of the Laws, 152 (Hafner, 1949).

Mwewa, Charles. Zambia: Struggles of my people (Western Contribution to Corruption and Underdevelopemnt in Africa) Maiden Publishing House, Lusaka, 2011.

Yunus, Muhammad. Creating a World Without Poverty (New York: PublicAffairs, 2007), Zulu, G., Memoirs of Alexander Grey Zulu,

ARTICLES REFERRED TO:

Geloo, Zarina Zarina “Time to Break Out of Old Prison Ideas,” The Guardian Weekly, December 3rd – 9th, 2005.

Human Rights Watch, Zambia: Unjust and Unhealthy HIV, TB, and Abuse in Zambian Prisons April 2010.

The CNN on July 7th, 2001

THESIS REFERRED TO:

Sakala, Ernest L. Autonomy and Independence of the Judiciary in Zambia: Realities and Challenges (LL.M Thesis, 2000), University of Zambia.

NEWSPAPERS REFERRED TO:

The Weekly Post, 27 March-6 April, 1992.

Lusaka Times,“Wezi Kaunda’s Killer Confesses,” Wednesday, September 8th, 2010. The Post, (November 9th, 1998).

  
   

[1] Hatchard, J. and Ndulo, M. Readings in Criminal Law and Criminology in Zambia. Lusaka: Multimedia Publications, 1994.


[2] Charles Mwewa, Zambia: Struggles of my people (Western Contribution to Corruption and Underdevelopment in Africa) Maiden Publishing House, Lusaka, 2011.


[3] The Oxford Dictionary of Law p. 128.


[4] Michael J. Allen. Text Book on Criminal law. Oxford University Press, 2007


[5] The Constitution of Zambia 1996


[6] Section 24 of the Penal Code, CAP 87 of the Laws of Zambia.


[7] John Hatchard and Muna Ndulo, A Casebook on Criminal Law: Institute for Public Policy Research 2008.


[8] Ibid.


[9] Kulusika, Simon. Text, Cases and Materials on Criminal Law. Lusaka: UNZA Press, 2006.


[10] Allen. Text Book on Criminal law.


[11]Kulusika, Simon. Text, Cases and Materials on Criminal Law. 


[12] Ibid.


[13] Charles Mwewa, Zambia: Struggles of my people (Western Contribution to Corruption and Underdevelopment in Africa) Maiden Publishing House, Lusaka, 2011.


[14] Ibid.


[15] Mwewa, Zambia: Struggles of my people (Western Contribution to Corruption and Underdevelopment in Africa) page 302.


[16] Ibid.


[17] CAP 87 of the Laws of Zambia.


[18] Section 316 of the Penal Code, CAP 87 of the Laws of Zambia.


[19] Zulu, G., Memoirs of Alexander Grey Zulu, p. 290.


[20] Muhammad Yunus, Creating a World Without Poverty (New York: Public Affairs, 2007), p. 105.


[21] Mwewa, Zambia: Struggles of my people (Western Contribution to Corruption and Underdevelopment in Africa) p. 302.


[22] Montesquieu, The Spirit of the Laws, 152 (Hafner, 1949), p. 1.


[23] Mwewa, Zambia: Struggles of my people (Western Contribution to Corruption and Underdevelopment in Africa).


[24] Ernest L. Sakala, Autonomy and Independence of the Judiciary in Zambia: Realities and Challenges (LL.M Thesis, 2000), University of Zambia, p. 119.


[25] The roles or core functions of the Judiciary include the following: dispute resolution; interpretation of the Laws of Zambia ; promotion of Order and the Rule of Law; protection of human rights; and safeguarding of the Zambia Constitution (source: http://www.judiciary.gov.zm/tiki-index.php, retrieved: May 12th, 2011.


[26] 1991, Kambarage Kaunda was driving a car through one of the low-cost areas of Lusaka (Kamanga township) after midnight on 3 September, 1989. He drove past a group of people who were walking in the same direction and stopped immediately after them. One of the passengers in the car got out and fired a shotgun in the air. The appellant then got out and fired four shots in the air with a pistol, followed by three more shots above and close to the heads of the people so that one shot killed the deceased, Tabeth Mwanza. The evidence of the appellant was to the effect that people in the groups were slow to give way and the appellant drove slowly past them. Whilst he was doing so there was a bang on the rear passenger window and another on the rear windscreen. This caused the appellant to swerve the car to the left and the car came to a stop because there was a slight embankment. Fearing that they were being attacked, one Raffick Mulla, a passenger in the car got out and fired one shot in the air with a shotgun. The appellant, for the same reason, left the car and fired four shots in the air.


[27] The Weekly Post, 27 March-6 April, 1992, at 3.


[28] Ibid, p.3.


[29] Kulusika, Text, Cases and Materials on Criminal Law.


[30] Mwewa, Zambia: Struggles of my people (Western Contribution to Corruption and Underdevelopment in Africa) p. 333.


[31] Lingens v Austria (1986) 8 EHRR 407.


[32] Penal code, CAP 87 of the Laws of Zambia.


[33] Mwewa, Zambia: Struggles of my people (Western Contribution to Corruption and Underdevelopment in Africa) p. 355.


[34] Kulusika, Text, Cases and Materials on Criminal Law.


[35] Lusaka Times, “Wezi Kaunda’s Killer Confesses,” Wednesday, September 8th, 2010.


[36] Penza was gunned down on November 6th, 1998. See Anthony Kunda, “Penza's Slaying: Was it Murder?” New

African, February 1999; and Fred M’membe, “Speculation Follows Penza's Death,” The Post, (November 9th, 1998).


[37] The CNN on July 7th, 2001 “State behind Murder, Says Opposition,”:Paul Tembo, who resigned from the MMD where he was the Deputy National Secretary and then joined a new and powerfully threatening (to the ruling party) party called Forum for Democracy and Development (FDD).


[38] Mwewa, Zambia: Struggles of my people (Western Contribution to Corruption and Underdevelopment in Africa)

p. 356


[39] Zarina Zarina Geloo, “Time to Break Out of Old Prison Ideas,” The Guardian Weekly, December 3rd – 9th, 2005.


[40] Human Rights Watch, Zambia: Unjust and Unhealthy HIV, TB, and Abuse in Zambian Prisons April 2010. p. 4.


[41] Ibid, p.4.


[42] Mwewa. Zambia: Struggles of my people (Western Contribution to Corruption and Underdevelopemnt in Africa)

P.373


[43] Human Rights Watch, Zambia: Unjust and Unhealthy HIV, TB, and Abuse in Zambian Prisons.


[44] Ibid.


[45] Mwewa, Zambia: Struggles of my people (Western Contribution to Corruption and Underdevelopment in Africa)

p. 752.


[46] Ibid.


[47] 2017/HP/0888.


[48] Mwewa, Zambia: Struggles of my people (Western Contribution to Corruption and Underdevelopment in Africa)

p, 752.


[49] Kulusika, Text, Cases and Materials on Criminal Law.


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uNIVERSITY OF ZAMBIA QUESTION

  

Criminal law involves not only its study in the classroom and library but also its action in courts, parliament and elsewhere. Based on your understanding of the strengths and limitations of criminal law as written in the books and practiced in Zambia, do you think Charles Mwewa’s views in chapter 11, 12, 13, 14 and 32 of his book are cogent. Isolate a few ideas for your commentary giving critical analysis for your choice.