The Law on Detention: Why the DPP Must Cite Authority
By Dr Lewis Musokotwane Snr
The recent remarks attributed to the Director of Public Prosecutions (DPP), Gilbert Phiri, suggesting that suspects may be detained for extended periods without being taken to court, have sparked a wave of concern across Zambia. Lawyers, civil society organizations, and ordinary citizens are questioning the legality of such a positio
The Law Association of Zambia (LAZ) has already clarified that the law does not permit detention purely for investigative purposes. This raises a fundamental challenge: if the DPP insists otherwise, he must cite the specific law that authorizes prolonged detention. Without such citation, the statement risks undermining constitutional guarantees and the rule of law.
The Constitution of Zambia provides the bedrock of liberty. Article 13 is unequivocal in its protection of personal freedom. It states that no person shall be deprived of liberty arbitrarily and that anyone arrested must be brought before a court within twenty‑four hours unless released
This provision is not a mere technicality; it is a safeguard against abuse of state power. The framers of the Constitution recognized that unchecked detention could easily become a tool of oppression.
That is why the twenty‑four‑hour rule exists to ensure that the judiciary, not the police or prosecution, determines whether continued detention is lawful.
The Criminal Procedure Code reinforces this principle. Once a person is arrested, the police must either charge the suspect and present them before a magistrate or release them if investigations are incomplete.
There is no clause in the Code that allows indefinite detention simply because an offence is complex. Complexity of investigation does not suspend constitutional rights.
The law is clear: liberty is the default, detention is the exception, and judicial oversight is mandatory. To suggest otherwise is to misinterpret the very foundation of criminal justice.
The position of LAZ has been consistent and firm. The association has cited the law prohibiting detention for investigative purposes, reminding both the public and state institutions that rights are not negotiable. If suspects are held beyond twenty‑four hours without charge, such detention is unlawful and unconstitutional. LAZ’s intervention is crucial because it underscores the principle that justice must be administered within the bounds of the law, not outside it. Their stance is not political; it is legal, rooted in the Constitution and statutory provisions.
The burden now rests on the DPP. If Gilbert Phiri believes otherwise, then he must cite the specific law that authorizes prolonged detention. This is not a matter of opinion; it is a matter of legal authority. The DPP’s office is one of the highest custodians of justice in Zambia. Its pronouncements carry weight. Therefore, when the DPP suggests that suspects can be detained indefinitely, he must back that assertion with clear statutory or constitutional references. Without such citation, the statement risks misleading law enforcement officers and eroding public trust in the justice system.
Detention beyond twenty‑four hours without judicial oversight violates fundamental human rights. The right to liberty is guaranteed by the Constitution. The right to a fair trial is undermined when arraignment is delayed. Protection against arbitrary detention is recognized under international law, including the International Covenant on Civil and Political Rights, to which Zambia is a party. Prolonged detention without trial is not only unconstitutional but also a breach of Zambia’s international obligations. It places the country at odds with global standards of justice and human rights.
The practical implications of allowing suspects to be detained indefinitely for investigative purposes are severe. It opens the door to abuse of power, where police could detain individuals without sufficient evidence, using detention as punishment. It erodes trust in the justice system, as citizens lose faith when rights are disregarded. It bypasses the judiciary’s role as guardian of liberty, undermining the separation of powers. It sets a dangerous precedent for oppression, where prolonged detention could be used against political opponents, activists, or ordinary citizens. In short, it transforms detention from a legal measure into a political weapon.
Comparative perspectives from other jurisdictions highlight the universality of this principle. In South Africa, suspects must be brought before a court within forty‑eight hours. In Kenya, the Constitution requires arraignment within twenty‑four hours. In the United Kingdom, detention without charge is limited and subject to judicial authorization.
Zambia’s twenty‑four‑hour rule is therefore not unusual; it is part of a global standard designed to protect liberty. To depart from this standard would be to regress into authoritarian practices that disregard human rights.
The rhetorical question“Nanga vuto ili pati?” or “Where is the problem?” captures the essence of the debate. The law is clear. The Constitution is clear. The Criminal Procedure Code is clear. LAZ has clarified. The only ambiguity arises from the DPP’s statement. If the DPP believes suspects can be detained indefinitely, then he must cite the law. Without citation, the statement is legally baseless. The problem is not with the law; the problem is with the interpretation being advanced. And when interpretation contradicts the text of the law, it is the interpretation that must yield, not the law.
The debate over detention is not academic; it is about the lived reality of suspects who may be deprived of liberty unlawfully. The Constitution and the Criminal Procedure Code provide clear safeguards. LAZ has reminded the nation of these safeguards. The DPP, as custodian of justice, must either cite the law that authorizes prolonged detention or withdraw the statement. Anything less undermines the rule of law. Justice must not only be done; it must be seen to be done. And justice cannot be seen to be done when suspects are held indefinitely without trial.
In conclusion, the law in Zambia is clear: suspects must be taken to court within twenty‑four hours of arrest or released. There is no law that permits indefinite detention for investigative purposes. The Constitution and the Criminal Procedure Code safeguard liberty. LAZ has clarified this position. The DPP must now cite the law that supports his assertion or acknowledge that no such law exists. The rule of law demands clarity, accountability, and respect for constitutional rights. Prolonged detention without trial is unlawful, unconstitutional, and unacceptable. Nanga vuto ili pati? The problem lies not in the law, but in the misinterpretation of it.