A BRIEF DISCOURSE ON THE PROPOSED AMENDMENTS TO THE SUBORDINATE COURT ACT CHAPTER 28
By Jonas Zimba
Introduction
The law being a set of rules that govern any society is always a necessary tool for the effective policing and governance of any society or country.
Zambia as a country is governed by the law and there are various laws that deal with many aspects. One of such laws is the Subordinate Court Act.
The process by which a law comes into being is well set out in the Constitution and in particular Article 62 to 67 of the Constitution!.
The Court system is also a creation of the Constitution as provided under article 120 (1) (a), (b), (c) and (d).
The above provisions provides as follows:
The Judiciary shall consist of the superior courts and the following Courts:
(a) Subordinate Courts (b) Small claims courts (c) Local courts and
(d) Courts as prescribed”
The Courts provided for include the Subordinate Court which is provided for and contained by Chapter 28 of the Laws of Zambia known as the Subordinate Courts Act.
There is now the proposed amendment to the said Act by way of what is known as the Subordinate Courts (Amendment) bill 2023.
The Subordinate Court (amendment) Bill 2023
The Subordinate Court amendment bill 2023 has among its salient features the following:
(i) It provides for divisions of the Subordinate Court
(ii) Revise the provisions relating to civil jurisdiction of the Courts
(iii) Provide for holding of sessions in the subordinate Court
(iv) Provides for matters connected with or incidental to the foregoing
1 Act No. 2 of 2016
One of the features that seems to stand out in the said bill is the desire to have sessions in the Subordinate Court.
The Effect of section 33 of The Criminal Procedure Code on the proposed “sessions”.
It will be noted that the proposed section 3A of the subordinate Courts (Amendment) bill creates divisions.
This issue was an issue of debate and in fact the matter is pending judgment before the Constitutional Court in the matter involving Bowman Lusambo V Attorney General
Whether this is a realisation of some wrong done or a concession is another issue and not the focus of this paper.
The Subordinate Court in criminal matters is the Court of first instance and all criminal matters except those set out in the schedule to section 11 of the Criminal Procedure Code3 and triable in the Subordinate Court.
The Effect of section 33 of The Criminal Procedure Code on the proposed “sessions”.
It will be noted that the proposed section 3A of the subordinate Courts (Amendment) bill creates divisions.
This issue was an issue of debate and in fact the matter is pending judgment before the Constitutional Court in the matter involving Bowman Lusambo V Attorney General?
Whether this is a realisation of some wrong done or a concession is another issue and not the focus of this paper.
The Subordinate Court in criminal matters is the Court of first instance and all criminal matters except those set out in the schedule to section 11 of the Criminal Procedure Code and triable in the Subordinate Court.
If a person commits an offence today, say an offence of assault. Once they are charged and arrested, section 33 of the Criminal Procedure codet requires that they be taken to Court within twenty four hours from the time of being charged.
This position was confirmed in the case of Maxwell Chongu v The Peoples.
In the case of a session, the law is that the session must have a cause list, depositions must be exchanged and a date must be set for it.
The Criminal Procedure Code has provisions for what should happen in a session in the High Court but has no provision for sessions in the Subordinate Court. Sections 241 to 252 of the Criminal Procedure Code provides for matters relating to a session in the High Court.
The meaning of the proposed amendment if it became law is that people will be in police cells for a long time waiting to have their matters cause listed resulting in concession in police cells.
The wheels of justice will be very slow and in fact the said amendment will be in conflict with other lawS such as the Criminal Procedure Code and in this case section 33 of the said Act.
Even if there was so much efficiency which I must state there isn’t, there will be no cause listing that will happen every twenty four hours and there will be no man power to push this process.
2 2023/CCZ/001 Chapter 88 of the Laws of Zambia ibid 5 2021/HPBA/23
Conclusion
Looking at the issue of the proposed amendment, it is clear that the manner in which the law is proposed is ill conceived and it is clear that it is meant to deal with opponents as opposed to being progressive.
The idea seems to be that what the proposed legislation is to achieve is that once arrested, opponents of the current regime will be in custody and they will be advised that their matter is yet to be cause listed while police bond is denied and bail not granted.
There is no explanation or sensitisation on how this law will work anywhere and clearly the conflict between the proposed legislation and the Criminal Procedure Code remains eminent and unresolved. Code remains eminent and unresolved.
Recommendations
Premised on the foregoing, it is recommended that when amending the law, focus must shift from persons to a holistic approach of how to better the system.
The law on theft of motor vehicles as amended in 2005,6 is a clear example and it does come back to bite those that want to abuse the law.
Legislative power is to be exercised with foresight and not a nose view approach.
In making these proposed amendmnents, it is important to have in mind that the statute book is read as one and there is therefore no need to have conflicting provisions such as has been observed above.
The law should therefore be amended with caution and the proposed amendment does not sit well and is ill conceived and should be withdrawn until such a timne when we have effected amendments to all the laws that may be affected by such provisions.
Put simply, synchronise the law with other existing laws and build capacity before you amend. There can be no selfishness in the process of amending