Pastor Daniel Musonda Kaira Shares Mixed Feelings Over New Non-Bailable Law
Here’s what he said:
MY MIXED FEELINGS AND REFLECTIONS ON THE 2026 AMENDMENT TO THE CRIMINAL PROCEDURE CODE ON BAIL AND BOND ON RAPE, DEFILEMENT AND CHARGES FOR GOLD AND COPPER THEFT
I have mixed feelings about the recent amendment to Zambia’s bail provisions; and I say that after careful, deliberate reflection.
When calls for reform first arose, I was quiet. Not because I lacked an opinion, but because the demand for change was not without genuine merit. It was driven, in large part, by real public concern. I mean, families and victims distressed by the release on bail of suspects accused of serious offences, sometimes before a trial date had even been set. That emotional and human reality cannot simply be argued away. It deserves to be taken seriously. And one hand, I am glad it has.
But law, if it is to remain law and not merely reaction, must be anchored in something more durable than just how we, as citizens feel. It must be anchored in principle, in balance, and in a commitment to justice that can be trusted, even when justice is inconvenient.
For avoidance of doubt. The position before the amendment to
Section 123 of the Criminal Procedure Code has historically governed bail in Zambia.
In its original form, it provided, and I will paraphrase, that any person arrested or brought before a court could be admitted to bail at any stage of proceedings, subject to providing sufficient sureties.
However, there were exceptions. These included: murder, treason, misprision of treason, treason-felony, and aggravated robbery.
Once a person is charged with any of these, they remained in custody until trial. No discretion. No bond. No bail.
Now, here is the change. What the 2026 amendment does
By Amendment Act No. 4 of 2026, Parliament has significantly expanded that category. Among the newly designated non-bailable offences are:
1. defilement,
2. rape, incest,
3. theft of critical resources including copper, gold, and medical supplies
4. and damage to critical infrastructure.
This is a major shift in Zambia’s criminal justice policy, and to me, warrants serious scrutiny.
For the purposes of this discussion, I want to focus on the sexual offences, and specifically on why treating defilement and rape identically under this amendment may end up biting us as a society.
Defilement and rape are not the same offence
The distinction is not merely semantic. It is fundamental, and our courts have consistently treated it as such.
Under the Penal Code, defilement under Section 138 involves sexual intercourse with a child, and consent is legally irrelevant, as the Court affirmed in cases such as Chimanga v The People.
On the other hand. Rape under Section 132 involves non-consensual sexual intercourse with an adult, and the absence of consent must be proved beyond reasonable doubt, as Court confirmed in cases such as The People v Chisenga.
These are different offences, with different legal complexities, different victims, and different evidentiary demands.
In my humble and considered view, treating them identically for the purposes of bail ignores those differences in a way that could produce real injustice.
On defilement, I am largely in agreement and I will say plainly: I am, to a large extent, in agreement that defilement ought to be non-bailable. The vulnerability of children, the strict liability character of the offence, the heightened risk of interference with young and impressionable witnesses. Such factors collectively justify a firm approach.
The public interest in the protection of children is not an idea expressed in a vacuum. It is urgent and real.
On rape, the position is more complex
You see, let’s begin by agreeing that Rape is undeniably a grave offence. Its consequences for victims are devastating, lasting, and frequently underacknowledged by the African society and the justice system alike.
Nothing in what follows should be read as minimising that reality.
But our courts have also long recognised that the evidentiary terrain in rape cases is, by its nature, intricate and contested. Allegations frequently arise in private settings with no independent witnesses.
Evidence is often reduced to one person’s word against another’s. I was looking at the case of Chila v The People, where the Court held that in sexual offences, it is dangerous to convict without corroboration unless the court warns itself of the danger and proceeds with great caution.
Also, in Mweemba v The People, the Court cautioned against blind reliance on uncorroborated testimony where circumstances suggest possible ulterior motives. Or what we refer to as personal vendetta.
This judicial caution is not an attack on complainants. It is the foundation of a system that protects everyone including the person potentially wrongly accused.
History, including history far older than Zambian jurisprudence, illustrates the point.
I am, at this point, remeinded of the biblical account of Joseph, not merely a spiritual narrative, but as a case study in what happens when an accusation is treated as proof.
Joseph was imprisoned on the word of a woman whose account was false. He had no trial, no surety, no recourse. The system failed him because it confused allegation with fact.
An accusation, however serious, is not proof. Zambian law is built on the presumption of innocence, and that presumption must remain non-negotiable, even in cases that disturb us, perhaps especially in those cases.
The practical and economic dimensions There is a further concern that the legal community has not discussed loudly enough. We have, in recent times, engaged in serious conversations about decongesting prisons and police cells; about the conditions in which unconvicted persons are held while awaiting trial.
The expansion of non-bailable offences will increase pre-trial detention. That is not a criticism of the amendment’s intent. It is a consequence that must be planned for and addressed, not ignored.
I will touch on the gold and copper realm as well. As one who has practiced widely in this area, experience in that space teaches that allegations involving copper, gold, and critical resources often arise quickly, investigations take significant time, and disputes that are fundamentally commercial in nature are sometimes criminalised prematurely.
The risk of a person spending months or years in custody on allegations that ultimately cannot be proved is not hypothetical. It is real, and it carries economic consequences for investment, for business, and for the individuals concerned.
Let me be unambiguous about what I am not saying. Lol… I am not advocating for impunity.
Those who commit serious crimes must face the full force of the law. Victims deserve to be believed, taken seriously, and protected. The justice system has historically failed them in too many ways to count.
But look, bail is not an acquittal.
Instead, it is a recognition of the presumption of innocence. It is a mechanism that allows courts, which are best placed to assess flight risk, the risk of interference with witnesses, and the relative strength of evidence at any given stage, to exercise judgment in individual cases.
A blanket denial of bail removes that judicial discretion, and with it, one of the most important safeguards a fair system possesses.
In my view, defilement may justifiably remain non-bailable.
Rape, given the complexity of its evidentiary demands, should retain the possibility of judicial discretion. The courts are not incapable of making that determination carefully. They have done it before, and they can be trusted to do it again.
Law must protect victims. But it must also protect the innocent. If we are not careful, in trying to secure justice for one, we risk denying it to another.
The amendment need not be rejected outright. But it should be revisited, refined, and applied with the precision that the complexity of these offences demands. That is not a radical proposition. In my view, it is what justice requires.