ABOUT THE APPETITE FOR NON-BAILABLE LAWS: A CASE OF LACK OF UNDERSTANDING OF THE CONCEPT OF JUSTICE OR JUST RETRIBUTION?
By Sean Tembo – PeP President
1. I was not aware that the New Dawn administration had amended the Anti-Terrorism Act and made the offences under it to be non-bailable. If l had become aware of this Bill before it was passed, l would have vigorously campaigned against it because it is retrogressive and is not in tandem with our national values and principles as espoused in the Constitutional Amendment of 2016.
2. When President Hakainde Hichilema abolished the death penalty, l thought that it was based on his belief in justice and fair punishment. But the enactment of a non-bailable law that seeks to punish accused persons with imprisonment even when they have not been convicted of any crime, quickly erased any hopes that l had that the President was a firm believer of justice and fair punishment. It soon became evident that his removal of the death penalty was merely designed to muddy the waters so that he could get away with the enactment of unjust laws.
3. For almost 30 years now ever since the FTJ Chiluba Administration made motor vehicle theft a non-bailable offense to add to the three other non-bailable offenses that existed at the time; being murder, aggravated robbery and treason, this country has not enacted any law that makes an alleged offense non-bailable, until President Hakainde Hichilema and his New Dawn administration introduced the Anti-Terrorism Act in 2023. We all know that the FTJ administration made motor-vehicle theft a non-bailable offense because the President at the time wanted to punish a particular individual called McTribouy because of an alleged social dispute that the President had with the individual, but it is surprising that this law has remained on our statute books up to this day.
4. The Constitution of Zambia, which is the supreme law of the land clearly says that a person is presumed innocent until proven guilty by a court or tribunal of competent jurisdiction, after being afforded a right to defend themselves. This means that before a person is convicted, they have not committed any crime. The same Constitution further says that a punishment must fit the crime, but since an accused person who has not been convicted has not committed any crime, it follows that they must not be punished until such a time that they are convicted, if at all.
5. The enactment of laws that seek to punish accused persons before they are convicted, under the banner of “non-bailable” offenses, not only flies in the teeth of the presumption of innocence until proven guilty, but is a blatant violation of the Constitution of Zambia. If we are going to comply with the Constitution, then all crimes should be bailable. The right to bail should be left to the discretion of Judicial Officers who must weigh the individual circumstances of a case and determine the likelihood of an accused person to avail themselves before Court when required to do so. The right to bail for any offense must not be unconstitutionally taken away by the legislature.
6. I have no doubt in my mind that a President who believes in justice and fair punishment is supposed to be advocating for the removal of all non-bailable laws instead of introducing new ones. In fact, l was alarmed when l heard President Hakainde Hichilema a few weeks ago saying that he intends to make stock theft a non-bailable offense. To me, this is evidence of the President’s lack of understanding of the tenets of justice and fair punishment. As a leader, you are supposed to feel hurt when an innocent citizen is punished, the way Hon. Mumbi Phiri was incarcerated for more than a year, only for the State to withdraw the charges a day before judgement day. If as a President, you are okay with depriving bail from innocent citizens who end up being incarcerated for years before a Court exonerates them, then it speaks volumes about your true character. You are most likely a sadist.
7. If l was President of Zambia, l would advocate for Parliament to make all offenses bailable so that the onus to give or deny bail is left in the hands of individual Judicial Officers. I would also compensate any citizen who was incarcerated on a non-bailable offense and was not convicted of the offense, such as Hon. Mumbi Phiri. It is not necessary to wait for such individuals to sue the State. There is a fine line between justice and retribution. A President who is willing to incarcerate citizens regardless of whether they are guilty or innocent is practicing retribution. A President who is only willing to punish guilty citizens is practicing justice.
8. I have no doubt in my mind that President Hakainde Hichilema and his New Dawn administration enacted the Anti-Terrorism Act specifically to harass the opposition in general and the former ruling Patriotic Front party in particular. When you look at Section 2 of the so-called Anti-Terrorism and Non-Proliferation (Amendment) Act No. 6 of 2023, you will note that terrorism has been given an extremely wide definition. Even two people fighting in the streets can easily be charged with terrorism instead of assault. If you have an axe or machete in your house, you can easily be charged with possession of articles of terrorism and can be incarcerated without bail like Dr. Christopher Zumani Zimba.
9. In fact, when you look at the case of President Lungu’s former Political Advisor who is currently held without bail for a possession of articles of terrorism charge under Section 25 of the Act, you will note that the halothane chemical that him and his colleagues are alleged to have been in possession of has hundreds of commercial and industrial applications and is not a restricted chemical. That means Police can come and search your property and find fertilizer and charge you with possession of articles of terrorism under Section 25, since fertilizer can be used to make a bomb. The bottom line here is that the wording of the so-called Anti-Terrorism and Non-Proliferation (Amendment) Act No.6 of 2023 is too frivolous and subjective to be used as a basis for holding citizens without bail. This law is not only unconstitutional but is a direct threat to Zambia’s democracy, and must be challenged in the Constitutional Court at the earliest opportunity.
10. It is also evident that President Hakainde Hichilema lacks a sense of justice and fair punishment. Instead of improving the efficiency of Zambia’s criminal justice system, especially at Subordinate Court level, so that cases can be disposed of on a timely basis, the President is instead on a drive to make as many alleged offenses non-bailable as possible. It would be interesting to get the President’s reasoning on how he believes justice would be served by incarcerating a person who has not been convicted of any offense. The fact that the President is now advocating for stock theft to be made non-bailable means that he has a high appetite for extra-judicial punishment. He does not believe that a person can be wrongly accused. He believes that if the Police arrest someone, then the person is definitely guilty. He sees the court system as a waste of time. He believes that accused persons should be taken straight to prison, locked up and the keys thrown away. This should be a source of worry to all well-meaning citizens. Only blind praise singers like the British High Commissioner to Zambia; the Despicable Nicholas Wooley can support this ongoing nonsense.
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SET 15.07.2023