ABOUT A DANGEROUS PIECE OF LEGISLATION
George Nkhuwa
The Criminal Procedure Code (Amendment) Act No. 4 of 2026, which has, inter alia, made rape a non‑bailable offence, is a piece of legislation that has set us on a very dangerous path.
Why is it dangerous? Because it has effectively taken away the presumption of innocence for persons charged with the offence of rape, as enshrined under Article 18(2)(a) of the Constitution of Zambia.
Bail is not, and should not be, a device for punishing people. Rather, it is a mechanism that allows an accused person to be released from custody while awaiting trial. The main purpose of bail is to ensure that a defendant appears for their required court dates, not to serve as punishment. Moreover, the courts have an undisputed capacity to ascertain, based on the circumstances of each case, whether bail should be granted or denied.
However, following the enactment of this law, the discretion of the court has been taken away, and some unscrupulous women may use it as a form of punishment. You see, with offences such as rape being non‑bailable, unscrupulous women may use accusations of rape as a weapon against men. Such accusations may be used to settle scores—real or imaginary.
How does this happen? A man and a woman have differences; the woman then deliberately and dishonestly makes a false allegation and files a complaint alleging rape; the man is locked up for the duration of the trial without bail; the trial takes one or two years to conclude; the man is eventually acquitted because the complaint was false.
The end result is that the man would have spent one or two years in prison on the basis of a totally false and malicious complaint. In effect, bail has been used as a weapon.
That man might be yourself, your spouse, your son, your brother, your father, or even a Member of Parliament—it could be anyone.
This danger of false implication and false complaints is so real that it has been widely recognised and acknowledged in this jurisdiction, to the extent that it culminated in the development of the cautionary rule (which has become virtually a rule of law). Under this rule, a person cannot be convicted on the uncorroborated evidence of a rape complainant unless there are special and compelling grounds to do so. See Katebe v The People (1975) Z.R. 13 (S.C.).
This danger of false implication is ever‑present, and it is only a matter of time before an innocent person is burnt by this purportedly progressive legislation.