ARE WE PROTECTING VICTIMS OR PUNISHING THE ACCUSED TOO EARLY? – Simon Mulenga Mwila

By Simon Mulenga Mwila

ARE WE PROTECTING VICTIMS OR PUNISHING THE ACCUSED TOO EARLY?

I appreciate the progress in enacting the Criminal Procedure Code (Amendment) Act No. 4 of 2026, which has now made rape a non-bailable offence. It shows that as a country, we are taking gender based violence seriously and that we are willing to act.

That must be acknowledged.

But at the same time, this law has quietly pushed us into a very risky space.

Let me speak from experience.

I have been in the justice system since 2011, starting as a registry clerk and now practicing as a lawyer. I have seen things many people don’t get to see.

I have seen people hold the Bible, swear before God that they will tell the truth… and then lie straight after.

So when we are dealing with serious criminal allegations, we must never pretend that every accusation is automatically the truth.

That is where my concern comes in.

Bail was never meant to be punishment. It was simply there to make sure someone comes back to court while their case is being heard.

Now imagine this.

Someone is accused of rape. The case has not yet been proven. But because the law says no bail, that person is locked up immediately.

The case takes one year. Sometimes two.

In the end, the court says the allegation was not proved.

But by then, the person has already lost everything. Time. Work. Reputation. Stability at home.

You can’t rewind that kind of damage.

And let’s be honest with each other.

Not every case is straightforward. Some of these matters depend on what really happened between two people, and sometimes the story is not as simple as it sounds at first.

That is why courts were given discretion in the first place, to look at each case properly.

Now that discretion is gone.

Everything is treated the same.

A strong case. A weak case. A misunderstanding. A lie. All of it leads to the same result at the beginning.

That’s where the problem is.

We all want to protect victims. That is not even up for debate.

But we also have to make sure the system does not create new victims along the way.

There were better ways to handle this:

• Tough bail conditions
• No contact with the complainant
• Protection for victims
• Faster courts so cases don’t drag

That way you deal with real risk without locking up everyone automatically.

Because at the end of the day, the system must be able to deal with both truths:

Some people are guilty and must be punished.

And some people are accused and later found to be innocent.

Both of those realities exist.

Food for thought. 💭🚶‍♂️

Simon Mulenga Mwila
(DBA Student, MBA, LLM, LLB, Legal Practitioner, Commissioner for Oaths, Notary Public)