CRIMINAL PROCEDURE LECTURE NOTES

A. JURISDICTION OF THE COURTS

B. PUBLIC PROSECUTIONS: POWERS AND DUTIES OF THE DIRECTOR OF
PUBLIC PROSECUTION
C. ARREST
D. SEARCH WARRANTS
E. REMAND, BAIL, POWER IN PARTICULAR CASES
F. CHARGES AND INFORMATIONS
G. ADMISSION OF GUILTY PROCEDURE
H. THE TRIAL PROCESS GENERALLY
I. THE PLEA
J. SUBORDINATE COURT TRIAL (CPC)
K. COMMITAL FOR SENTENCE TO HIGH COURT
L. TRIAL BEFORE THE COURTS MARTIAL (DEFENCE ACT
M. TRIAL BEFORE THE HIGH COURT
N. PRELIMINARY INQUIRY
O. SUMMARY COMMITTAL PROCEDURE
P. THE TRIAL
Q. JUDGMENT
R. MOTION IN ARREST OF JUDGMENT
S. THE TRIAL IN DETAIL
T. MENTAL DISABILITY
U. TRIAL WITHIN A TRIAL
V. VOIRE DIRE
1.JURISDICTION OF THE COURTS

A. The courts (Criminal Jurisdiction) their functions, Jurisdiction and

Power
B. The term jurisdiction refers to the authority of a court to:

 Accept one to present a case before it

 To decide on maters presented before it
 and in Zambia it is set out in the legislation establishing the
court; MIYANDA V THE HIGH COURT 1984 ZR 62

 Section 5 Penal Code Cap 87- courts jurisdiction extends to

every place in Zambia
 Section 6 Penal Code - also have extraterritorial jurisdiction
where:
 Subsection (1) Zambian does something which is a
crime in Zambia - NGATI AND OTHERS V THE
PEOPLE 2003 ZR 100

 Subsection (2) foreigners who partly commit the offence

in Zambia - THE PEOPLE V ROXBURGH 1972 ZR 31

 LIPIMILE AND ANOTHER v MPULUNGU HABOUR

MANAGEMENT 2008 ZR 252

 Subsection (3) cannot be tried if convicted or acquitted

 Section 14 of the PC as amended by Act No. 13 of 2023–

provides for criminal responsibility as follows: “A child under the age of
twelve years is not criminally responsible for an act or omission.”

Page 2 of 59
  Section 20 PC-person not to be prosecuted twice except where
death occurs

C. Four main courts

 Established by provisions of Constitution of Zambia (Amendment)
Act No.2 of 2016 and acts of parliament respectively;
 The Subordinate Court-Cap 28, and all its Rules made thereunder;
 The High Court-Cap 27, and all its Rules made thereunder;
 The Court of Appeal of Zambia (CAZ)-The Court of Appeal Act No. of
2016 and its attendance rules;
 The Supreme Court of Zambia (SCZ)-Cap 25 and all its Rules made
thereunder;
 Some criminal cases can be tried before;
o the local courts and
o the Court martial – Defence Act, Cap 106

D. SUBORDINATE COURTS
 Set out by Article 91(1)(d) of Constitution
 Established by the Subordinate Courts Act, Cap 28 and all its
attendant rules
 Established by section 3-
 There shall be and are hereby constituted courts subordinate to the
High Court in each District as follows:
- Subordinate Court of the first class to be presided
over by a principal resident magistrate, a senior
resident magistrate, resident magistrate or a
magistrate of the first class;
- Subordinate Court of the second class to be
presided over by a magistrate of the second class;
- Subordinate Court of the third class to be presided
over by a magistrate of the third class.

Page 3 of 59
 Section 7 Subordinate Courts Act-magistrates equal power,
authority and jurisdiction,

 Section 7 of the CPC providing for sentence as follows;

Subject to the other provisions of this Code, a subordinate court of the
first, second or third class may try any offence under the Penal Code or
any other written law, and may pass any sentence or make any other
order authorised by the Penal Code or any other written law:
o a senior resident magistrate shall not impose any sentence of
imprisonment exceeding a term of nine years;
o resident magistrate shall not impose any sentence of
imprisonment exceeding a term of seven years;
o magistrate of the first class shall not impose any sentence of
imprisonment exceeding a term of five years;
o Magistrate of the second and third class, shall not impose any
sentence of imprisonment exceeding a term of three years.
 Section 9 CPC –sentences requiring confirmation by High Court
o first class (other than a Senior Resident Magistrate or a
Resident Magistrate) exceeding two years' imprisonment with
or without hard labour shall be carried into effect in respect of
the excess and fine exceeding three thousand penalty units,
or imprisonment in default thereof, (can levy without
confirmation by the High Court; but such court shall
immediately transmit)

o No sentence imposed by a subordinate court of the second

class, exceeding one year's imprisonment with or without
hard labour and fine exceeding one thousand and five
hundred penalty units, or imprisonment in default thereof,

Page 4 of 59
 o No sentence imposed by a subordinate court of the third
class, exceeding six months' imprisonment with or without
hard labour, shall be carried into effect in respect of the
excess, and no fine exceeding seven hundred and fifty
penalty units

o Section 15(2) CHOMBA V THE PEOPLE (1975) ZR 245

Where the aggregate of consecutive sentences imposed is
above the limit a case must be sent for confirmation of
sentence as it is treated as one sentence
o In practice will wait until appeal period expires before
submitting case for confirmation.

 Section 217 CPC – committal for sentencing

 Section 19 subject to CPC or other legislation in exercise of

criminal jurisdiction

 Section 4 jurisdiction and powers as set by act and within limits of

district
 Section 6 two or more presided over by different magistrates
 Section 69 general rule where offence committed
 section 66- where apprehended in another district
 section 70 where act done or where consequences felt
 section 71 where connected with another offence in
another jurisdiction
 section 72 where district is uncertain
 section 73- where near boundary
 section 75- where doubt
Page 5 of 59
  Section 11 CPC- chief Justice by statutory order specify cases tried
by HC or SRM

 Section 12- practice and procedure in CPC or as set out in other

Act

 Can transfer to other subordinate court

 Section 13-Can transfer to local court

 Part VII of CPC Holds preliminary inquiries for cases triable in High
Court

 Section 63 of Juveniles Act Cap 53- constitutes itself as a

juvenile court
 Section 3 Inquests Act Cap 63- magistrate where violent or
unnatural death , coroner

E. COURTS MARTIAL
 Section 86 of Defence Act Cap 106 court martial power to try
person subject to military law under act
o Section 121 limitation of time for trial
 Trial must begin within three years of the commission of
the offence except mutiny and failure to suppress
mutiny
 No more than three months after leaving service
o Section 73 can be charged with civil offence in addition to
offences under the Act

Page 6 of 59
  But cannot be tried for offences like treason, murder,
manslaughter, treason-felony, rape and section 8 of the
Suicide Act when committed in Zambia
F. HIGH COURTS
 Established by section 3 of the High Court Act chapter 27
 Established by Article 94 of the Constitution-
 There shall be a High Court for the Republic which shall
have, except as to the proceedings in which the
Industrial Relations Court has exclusive jurisdiction
under the Industrial and Labour Relations Act, unlimited
and original jurisdiction to hear and determine any civil
or criminal proceedings under any law and such
jurisdiction and powers as may be conferred on it by
this Constitution or any other law.
 ZAMBIA NATIONAL HOLDINGS LIMITED AND UNIP
V ATTORNEY GENERAL 1994 ZR 22- unlike Industrial
Relations Court and Subordinate and local Courts with
limits in penalties and geographical limit, unlimited but
not limitless
 Section 11 CPC-sets out cases triable by High
Court
 The High Court shall be divided into such divisions as
may be determined by an Act of Parliament.
 Article 94(3) The Chief Justice shall be an ex-officio
judge of the High Court.
 Article 94(4)The other judges of the High Court shall be
such number of puisne judges as may be prescribed by
an Act of Parliament. (Supreme Court And High
Court (Number Of Judges) Act- Chapter 26 – 30
Judges)

Page 7 of 59
  The High Court shall be a superior court of record
and, except as otherwise provided by Parliament, shall
have the powers of such a court.

 Article 94(7) The High Court shall have jurisdiction to supervise any
civil or criminal proceedings before any subordinate court or any
court-martial and may make such orders, issue such writs and
give such directions as it may consider appropriate for the purpose
of ensuring that justice is duly administered by any such court.
o Part XI CPC-appeals, revision and case stated
o Section 136 of Defence Act cap 106- appeal to court of
appeal which is supreme court
o Section 80 of CPC High Court has power to change venue of
hearing before Subordinate Court where:

 Fair and impartial trial cannot be had in any subordinate

court
 Question of law of unusual difficulty likely to arise
 Need to view scene of crime for satisfactory trial
 Where will be convenient to parties and witnesses
 Expedient to the ends of justice
 May order;
 Other court to try or
 One of higher jurisdiction
 Accused person be committed for trial before
itself
 Every application by motion and affidavit, except by
DPP
 Must give DPP notice

Page 8 of 59
  The Chief Justice may make rules with respect to the practice and
procedure of the High Court in relation to the jurisdiction and power

 Section 4 –High Court Act judges have equal power, authority and
jurisdiction. RAHIM OBAID V THE PEOPLE AND HADEHIM
QUASMI V THE PEOPLE 1977 ZR 119
o MUNDIA SIKATANA V THE ATTORNEY GENERAL 1982 ZR
109-a High Court Judge cannot adjudicate on a matter in civil
case that has been dealt with in a criminal case
 Section 6 CPC may pass any sentence authorized by law
 Section 9 of the HC Act, HC is a superior court of record
 Section 10 High Court Act, practice and procedure as set out in
CPC in default that by High Court of Justice in England-RAHIM
CASE

 Section 19 High Court Act, sits in sessions by the Chief Justice’s

statutory order-currently Lusaka, Ndola, Livingstone, Kitwe, Kabwe,
Mongu, Chipata, Mansa, Kasama and Solwezi.
 Section 22 can transfer cases
 Section 23 and 24- transfer to other judge, Subordinate and Local
Courts
 Appeals from the Subordinate Courts

G. SUPREME COURT
 Established by Article 92 of the Constitution-
 There shall be a Supreme Court of Zambia which shall
be the final court of appeal for the Republic and shall
have such jurisdiction and powers as may be conferred
on it by this Constitution or any other law.

 The judges of the Supreme Court shall be-

Page 9 of 59
  (a)the Chief Justice;
 (b)the Deputy Chief Justice;
 (c)seven Supreme Court judges or such greater
number as may be prescribed by an Act of
Parliament.-Cap 26 -11

 The Supreme Court shall be superior court of record,

and, except as otherwise provided by Parliament, shall
have all the powers of such a court.

 When the Supreme Court is determining any matter,

other than an interlocutory matter, it shall be composed
of an uneven number of judges not being less than
three except as provided for under Article 41.

 The Chief Justice may make rules with respect to the

practice and procedure of the Supreme Court in relation
to jurisdiction and powers of the Supreme Court.

 Section 3 -composition uneven number but not less for matters

other than interlocutory
 Section 4 Cap 25 Cap 25 -single judge sits appeal to full court
 Section 7 Cap 25-Jurisdiction in criminal cases- appeals
 Section 12 Cap25 first appeals- high court and confirmation or
sentence by High Court-al on interlocutory matters KAMBARANGE
MPUNDU KAUNDA V THE PEOPLE 1990-1992 ZR 91

 Person convicted by HC can appeal on point of fact or

law
 DPP excess in jurisdiction on point of law

Page 10 of 59
  No appeal on sentence fixed by law

 Section 14 Cap25 second appeals

Any party to an appeal to the High Court may appeal to the Court
against the High Court judgment with the leave of that court if given
at the time when judgment is pronounced, or with the leave of the
Court.

 Section 8 Cap 25 -practice and procedure in act or rules in default

Court of Criminal Appeal in England

2.PUBLIC PROSECUTIONS: POWERS AND DUTIES

OF THE DIRECTOR OF PUBLIC PROSECUTION:

 Established by Article 56 of the Constitution .

 appointed by the President subject to ratification by the National
Assembly
 Qualified to be appointed to the appointment of a Judge of the High
Court with experience biased towards criminal law.

 DPP has power in any case which he considers it desirable to -

o to institute and undertake criminal proceedings against any

person before any court(other than court-martial) in respect
of any offence
 MUMBA V THE PEOPLE (2006) ZR 93
 Section143 of the Defence Act Cap 106- Attorney
General handles cases where one convicted by courts
Martial appeals

Page 11 of 59
 o to take over and continue criminal proceedings that may have
been instituted or undertaken by any person or authority; and

o to discontinue, at any stage before judgment is delivered, any

criminal proceedings instituted or undertaken by himself or
any other person or authority.

 Section 81 CPC-nolle prosequi; either filling in court or

stating(subsection 1) or under subsection 2 filling before
the registrar or clerk
Case: DIRECTOR OF PUBLIC PROSECUTIONS v
MBAYO MUTWALA AUGUSTINO (1977) Z.R. 287
(S.C.)

 Section 88 CPC-withdrawal before the subordinate

court consent of the court or on the instruction of the
DPP- if after defence will result in acquittal

 powers may be exercised by him in person or by such public

officer or class of public officers in accordance with general or
special instructions:
o section 82 delegation to Solicitor General and State
Advocates- power to enter nolle –section 81 and committal
proceedings(summary committal ss 253-259 and proceedings
after committal 241-247)
o Section 86 CPC appoint public prosecutors who exercise
delegated powers see section
 Section 87 CPC-powers of the public prosecutor; to
appear and plead without any written authority in a
public prosecution or were private person instructs a

Page 12 of 59
 lawyer, public prosecutor may conduct and lawyer
operates under him

 not subject to the direction or control of any other person or

authority except Attorney General for general consideration of
public policy,
 also by a legal practitioner.
 powers to take over and discontinue exclusive
 DPP has discretion to prosecute not bound by coroner or police
findings-KAMBARANGE MPUNDU KAUNDA v THE PEOPLE
(1990 - 1992) Z.R. 215 (S.C.)
 in some cases law requires that consent of DPP
o Penal Code Cap 87
 wrongfully inducing a boycott- section 92
 seditious practices section 57- section 58 requires
consent
 expressing hatred, ridicule or contempt for persons due
to race, tribe and place of origin-section 70
 proposing violence or breaches of law to assemblies-
section 91
 defaming a dead person section 192
 incest- under sections 159 and 161 required by section
164
 abuse of authority of office –section 99(2)
 possession of offensive weapon or material-section
85(3)
 obscene material-section 177(5)
o National Assembly (Powers and Privileges) Act cap 12-section
27

Page 13 of 59
 o Contempt of Court (Miscellaneous Provisions) Act cap 38-
section 4(3)
o Suicide act cap 89 section 8(3) complicity in another’s suicide
o Offences committed by Zambians outside jurisdiction section
59(2) of the Extradition Act cap 94
o Prohibition of uniforms and flags in connection with political
objects- section 3(2) of the Public Order Act cap113
o The Societies Act cap 119- section 32
o Section 31 of the Citizens Act cap124
o ACC Act- section 46
o State Security Act cap 111-section 14
o Preservation of Public Security Act cap 112-secion 12
o Trading with the Enemy Act cap 114-section 3(6)
o The Rent Act cap 206 section 6(2)
o The Agricultural credits Act cap 224- restrictions on
publication of agricultural charges-section 9(3)
o Attempting to influence decision of local government appeals
board-section 104-by section 106 Local Government Act
chapter 281
o Prosecution for offences committed on an aircraft (other than
offences under the Act)-section 23 of Safety of Civil Aviation
Act cap 445
o Cooperative Society Act cap 397 -false returns section 143
and 171 misdealing with property
o The Standards Act cap 33
o Section 11-unauthorised activities cap 469 The
Telecommunications Act
o Chiefs Act cap 287- section 13
 Section 32 of Societies Act consent by DPP or delegate of Dpp;
Solicitor General or state advocate

Page 14 of 59
  CLARKE v THE PEOPLE (1973) Z.R. 179 (C.A.) –effect of
absence of consent
 Section 85 CPC-where law requires DPPs consent a person can be
arrested and remanded in custody or granted bail but no further
action will be taken until consent is obtained
 Section 321A CPC - power to appeal
 OTHER POWERS OF THE DPP
o Section 47 ACC Act- can serve notice to the Commissioner
of taxes to provide information for affairs

3. ARREST

 Section 18 CPC must touch and confine

 Elements of an arrest-SILUNGWE v THE PEOPLE (1974) ZR 130-
o Physical restraint (actual or conduct suggesting force will be
used to prevent departure) and
o Inform suspect that is arrested
 Does not necessarily mean will be followed with the arrest charging
of a person
 However must be exercised for the right reasons
 Not right when there is no intention to charge
 Justified by the breach of the law

 There must be reasonable cause-

o That has committed offence
o Is committing an offence or
o Is about to commit an offence-

Page 15 of 59
 o IN RE SIULUTA 1979 ZR 14- a person must not be arrested
for the purpose of facilitating investigations
 Reasonable cause is dependant on facts known by the officer at the
time
 Reasonable existence of facts
o LAURENT v WILLIAMS (1963-1964) Z AND NRLR 4- arrest
not illegal where no warrant as long as has reasonable cause
to believe that offence committed
 Test- reasonable man acting without passion or prejudice would
fairly have suspected one to be committing an offence
 Standard lower than evidence to establish a prima facie case
o DANIEL CHIZOKA MBANDANGOMA v THE ATTORNEY
GENERAL (1979) ZR 45- sufficient to show that arresting
officer has reasonable suspicion that person has committed
offence
 Can rely on hearsay evidence
 Must communicate reasons either;
o At time of arrest or when reasonably practicable-
o ATTORNEY GENERAL v SAM AMOS MUMBA 1984 ZR 14-
must inform of reasons unless impeded by suspect and failure
to inform amounts to false imprisonment
o No precise language
 Can use force where;
o There is resistance to arrest
o To prevent escape from arrest
o To prevent violent breach of peace
 Person can resist unlawful arrest but cannot use excessive force to
resist
 Police have right to search on arrest to;
o To ensure does not have implements to facilitate escape

Page 16 of 59
 o Prevent injury to oneself
 Can also enter premises where suspect was immediately before
arrest without warrant
 Person must be taken to police as soon as possible after arrest
 Section 22 CPC –power to search on arrest and take away
property except necessary apparel
 Section 24 CPC search of a woman

ARREST WITHOUT WARRANT

 Section 26 CPC – Police officers may arrest without warrant for listed
offences and cognizable offences
 Section 31 CPC- arrest by private persons
 Section 2 CPC- defines cognizable offences as those set out in First
Schedule of CPC or as defined in particular law
 Mainly preventative
 Offences under section 27 CPC included
 Arrested person to be presented to court- section 30 and 32
 Section 33 CPC-detention of persons arrested without warrant
o M.MUTEMWA V ATTORNEY GENERAL (1979) ZR 251-person
arrested without warrant must be taken to court within 24 hrs or
released on bail if offence not punishable with death

 .Section 35 and 36 CPC – arrest by magistrate
o Section 35 only in cases where offence committed in presence
of magistrate
o Section 36 will only direct where offence is committed in
presence of magistrate

ARREST ON WARRANT

Page 17 of 59
  Section 90 CPC- allows one to institute proceedings by lodging a
complaint
 THE PEOPLE v MWEEMBA (1972) ZR 292
o Criminal proceedings can only be instituted by making a
complaint or bringing to court person arrested without warrant
o Warrant only issued after charge drawn up
 Section 91(1) – proviso warrant will only be issued where complaint
is on oath
 PAUL JEREMIAH LUNGU v THE PEOPLE (1978) ZR 298- only
advocate can prosecute on behalf of complainant
 THE PEOPLE v MUTACHILA (1976) ZR 96-A person can be arrested
for additional offences

SEARCH WARRANTS
 Section 119 CPC- proved on oath that suspects that evidence
proving commission of offence can be collected
 LISWANISO v THE PEOPLE (1976) ZR 277- also that evidence
will become available

4. REMAND, BAIL, POWER IN PARTICULAR CASES.

 Bail can therefore be granted in the following;

o Police bond
o Bail pending trial
o Bail pending appeal and
o Constitutional bail.
 Section 33(1) CPC– allows the detention of persons arrested
without a warrant for a reasonable time
o Officer in charge must release if cannot present to
court within 24hrs
o Only offences not punishable by death

Page 18 of 59
 o And offences of a serious nature
o Release on bond with or without sureties
o IN RE SIULUTA AND THREE OTHERS (1979) ZR 14
Section 33 must be complied with when evidence has
been collected
 Section 123 CPC
 Treason, Murder offences carrying mandatory
capital penalty
 Misprision of treason or treason felony
 Aggravated robbery
 Theft of motor vehicle and
 Espionage- where DPP places certificate
POLICE BOND

 Granted by the officer-in-charge(section 33)

 To appear in court on specific date
 Must execute bond-section 126
 With conditions like sureties or on own recognisance
 Not be granted where arrested on warrant unless there is
provision section 103 CPC
 THE PEOPLE v BENJAMIN SIKWITI CHITUNGU AND
OTHERS 1990-1992 ZR 190
o Police can cancel it before court date
o Court can increase conditions-Section 127 CPC
o Does not cease where one appears in court
 Section 124 officer before whom bond is executed or the
court d may demand additional conditions that are reasonable
in a particular case

BAIL PENDING TRIAL

Page 19 of 59
 Section 123(1)-apply before trial court
 Application ether by summons supported by affidavit or viva
voce
 Main test is the likelihood to attend court
 OLIVER JOHN IRWIN v THE PEOPLE 1993-1994 ZR 54-
factors
o Nature of accusation and severity of punishment
o Nature of evidence
o Independence of sureties
o Prejudice to accused person
o prejudice to state
 Factors in general
o Likelihood to attend trial
o Likelihood to interfere with witnesses
o Risk of committing other offences
 Standard is that substantial grounds exist and that court must
be satisfied that will-factors
o Nature and seriousness of offence
o Character and antecedents of offender
o Previous conduct in relationship to bail and
o Nature of evidence against one
 Application is before the trial court
 Can renew application to the High
Court(supervisory power) where denied by the
Subordinate Court
 THE PEOPLE v BENJAMIN SIKWITI CHITUNGU
AND OTHERS 1990-1992 ZR 190
Where denied bail by police can under section 123(3)
apply before High Court it is not an appeal- in

Page 20 of 59
 practice only allowed when denied in the subordinate
court.

 Cannot appeal to the Supreme Court where denied by High

Court-BUKASA PELU SEKELE v THE PEOPLE 1990-1992
ZR 5
Supreme Court will only entertain application if there is
appeal pending before it
 Section 124- court may demand additional conditions
 Section 126-High Court may reduce or vary conditions
imposed by Subordinate Court or police officer
 Section 137- court may demand additional if first insufficient
because of mistake or fraud
 Section 128- surety may apply to be discharged

BAIL PENDING CONFIRMATION OF SENTENCE

 Section 13(1) CPC allows for bail pending the confirmation

of sentence-under section 9

BAIL PENDING APPEAL

 Section 332 CPC after lodging appeal Subordinate Court

may grant bail
 Section 336-CPCwhere one appeals or applies for leave to
appeal High Court may grant bail
 Section 22 Supreme Court Act where High Court refuses to
Supreme Court may grant bail
 Section 123(5)-MAYONDE v THE PEOPLE 1976 ZR 129-
must lodge appeal

Page 21 of 59
  KAMBARANGE MPUNDU KAUNDA v THE PEOPLE 1990-
1992 ZR 215-bail cannot be granted on appeal for cases to
which section 123 CPC applies

 STODDART v THE QUEEN (1)1954 NRLR 288

o Can only be released if there are exceptional
circumstances-
 Likelihood that will have served sentence by
the time appeal heard
 The likely hood of success

CONSTITUTIONAL BAIL

 Only made in High Court because Article 28(2) of

Constitution ; High Court has jurisdiction where there has
been, there is, there is likely to be a breach of Articles 11 to
26 alleged
 Article 13(3) Constitution-person arrested or detained on
court order or on suspicion of committing offence when not
released shall be brought before court without delay if not
released and if not tried within reasonable time be released
on bail
 Overrides provisions in CPC restricting bail
 CHENTANKUMAR SHANTAL PAREKH v THE PEOPLE ZR
1995-where unreasonable delay through no fault or
stratagem of accused will be released

5. CHARGES AND INFORMATIONS

Page 22 of 59
  Person arrested and charged with a criminal offence when
presented to court must take plea. Document setting out
offence:
o Called charge in the Subordinate Courts
o Called information in the High Court
o Also referred to generally as an indictment

FRAMING OF CHARGES AND INFORMATIONS

 Sections 134 to 137 CPC set out how both charge and
information should be drawn

 Section 134 CPC- both documents will have a-e

o The commencement
o Statement of offence
o Particulars of offence

THE COMMENCEMENT
 Contains information of-
o Which court trying
o Where trial being held
STATEMENT OF OFFENCE

 Section 137(a)(i) nature of the offence, example murder

 Section 137(a)(ii) section or sections creating the

offence

 JOSEPH NKOLE v THE PEOPLE 1977 ZR 351

Page 23 of 59
 o Reference to wrong section when particulars are correct
makes charge defective but not bad
o Does the accused person suffer any prejudice

PARTICULARS OF OFFENCE

 Section 137(a)(iv)-Examples of format in Second Schedule

CPC
 Immediately after the statement of offence
 Contents;
 Names of accused person(s)
o Error in name does not affect the validity of the charge
o Where name not known can be described as “a person
unknown”-section 137(d)
o Also “alias....”
 Date of offence;
 State in so far as it is known
 Practice- day, month and year
o Where date not known
 “On or about the …..”
 “On a date unknown but between the…. And the…..”
o Can be crucial in certain cases
 Legislation may have not come into force
 defilement cases-prosecutrix may have turned 16

o Must be on single date but for continuing offences can be

on several dates
 In non compliance cases- “ on and since the…..” and
 Conspiracy cases- “on divers dates between the…..”

Page 24 of 59
 Time not necessary but essential in some cases like
burglary
o Section 301- burglary is house breaking during the day
time
o Section 42 of the Liquor Licensing Act Cap 167 prohibits
sale of alcohol during permitted hours; section7(2) bar can
only sale between 10 in morning and half past 10

 Place where offence committed

 Practice town, district, province and country
 CDDD- road essential-section161 of Road Traffic
Act offence must be committed on public road
 Section 42 of Liquor Licensing Act prohibits
holder of restricted licence from having sprits on
premises without reasonable excuse; section 16
holder cannot have spirits

 Role of parties not indicated as accomplices or principles or

aiding or abetting
o Section 21-counsel, procure, aid, abate or omits to do for
the purpose of enabling
 Intent section137(g) not necessary to state intent to defraud,
deceive or injure unless s ingredient of offence
 Age of victim unless is an ingredient of offence
o defilement

RULE AGAINST DUPLICITY

o SHAMWANA AND SEVEN OTHERS v THE PEOPLE 1985

ZR 41

Page 25 of 59
  Duplicity matter of form and not evidence
 Section 52 of the penal Code allows offences under
chapter 12 to be proved by overt acts
o THE PEOPLE v MAKHOKHA 1967 ZR 173
 Two sections creating separate offences in statement
of offence
 Burglary and theft exception
 Conspiracy and attempt different

o NSAMA AND OTHERS v THE PEOPLE 1976 ZR 171

 Should not charge with conspiracy where one
charged with actual offence
o each count must contain only one offence

o if it alleges more than one then it is bad for duplicity

o bad for duplicity where

 more than one offence
 more than one date
 more than one item stolen
 more than one victim
o where the is duplicity one can apply to quash but courts
will not where it can be amended

JOINDER OF COUNTS

 section 135 CPC

o in some cases lawful to join two more counts against one
accused person in a single information or charge sheet
o this the case where

Page 26 of 59
  charges founded on the same facts
 they form a series of offences
 are offences of a similar character

 Section 135(2)-a statement is set out in a count where more

than one offence is charged
o FLUCKSON MWANDILA v THE PEOPLE (1979) ZR 174
o Where more than one count they shall be marked
consecutively

 Section 135(3)- can apply to be tried separately if accused

person will be embarrassed
o R V CHAKOPA MAULU AND NELSON CHEMBELA 5
NRLR 208-ALFRED KALUMBA- wanted to call co accused as
witness but could not compel to do so. similar to current section
157 CPC

JOINDER OF ACCUSED PERSONS

 section 136 CPC
o this may either be by
 naming two accused persons in one count or
 accused persons individually in separate counts
o words “jointly and whist acting together”
o these are
 persons who commit the same offence in same
circumstances
 persons who commit the offence and those who
abate
 different offence in course of same transaction
 theft related offences chapter XXVI to XXX of penal
Code

Page 27 of 59
  counterfeiting offences chapter XXXVII of Penal Code

OBJECTIONS TO A CHARGE OR INFORMATION (INDICTMENT)

 indictment preferred in breach in breach of sections 134, 135,

136 and 137 CPC
 where there are time limits for preferring charges
o Section 219 CPC-offences with maximum punishment of
six months and or fine not exceeding one thousand five
hundred penalty units in the subordinate court must be
charged within 12 months.
 charge not known by the law
 court has no jurisdiction
o section 11 CPC- cases triable in High Court
o section 85(1) CPC-where consent not obtained
o section 138 CPC- where already convicted or acquitted
 section140 not where consequences are unknown
 Penal Code- allows for murder charge even
after prosecution for assault
 section 141 CPC where acquitting is not competent
court
THE PEOPLE VS PETROL ZAMBWELA 2002 ZR
45-subordinate court has no power to acquit when
conducting PI
o charges a person immune from prosecution
 Articles 43(2) and (3) Constitution person
holding or a person who held office of President
 Section 14 Penal code –immature age

Page 28 of 59
  Diplomatic Immunities and Privileges Act
cap20
Section 3 make article 31 of the Vienna
Convention on Diplomatic Relations applicable to
Zambia. – Immunity from criminal jurisdiction of
receiving state
o Where objections court can
 Quash or
 amend

QUASHING A CHARGE OR INFORMATION (INDICTMENT)

 section 274 CPC only where charge or information does not
disclose offence punishable by the law and cannot be amended
to state offence
 convicted or acquitted
 immune

AMENDMENT OF A CHARGE OR INFORMATION (INDICTMENT)

 section 273 CPC Information

 section 213 CPC Subordinate Court at any stage before
accused is required to make defence
 court can upgrade, substitute or include new count
 KAMBARANGE MPUNDU KAUNDA v THE PEOPLE 1990-
1992 ZR 215
o Court, prosecution or defence can apply to amend
o Nature of amendment and when

 SHAMWANA AND OTHERS v THE PEOPLE 1985 ZR 41

Page 29 of 59
 o Amend in line with evidence
o No injustice if given opportunity to recall witnesses
 purpose-
o to correct a formal defect or
o as a result of evidence
o dependant on-
 timing of amendment and
 risk of injustice
 procedure on amendment
o JOHN BANDA v THE PEOPLE 1970 ZR 14
 Where there is amendment plea should be retaken
and right to recall witnesses explained
 The effect of the omission of material particulars( where no
objection or amendment during trial)

o ALAKAZAMU v THE PEOPLE 1973 ZR 31

Charged with theft with another but the words “jointly and
whilst acting together with other persons unknown”- lack
of reference did not make particulars defective as is not
ingredient of offence

o HARRISON ZIMBA v THE PEOPLE 1970 ZR 101

Charged with attempted house breaking, omitted the
words “with intent to commit a felony”- found to be
material defect as particulars did not disclose offence

o MUTALE v THE PEOPLE 1973 ZR 15

Espionage charge omitted the words “for purposes
prejudicial to the safety or interests of the Republic”-

Page 30 of 59
 indictment did not disclose an unknown offence but it
described a known offence with incomplete particulars

OVERLOADING OF A CHARGE OR INFORMATION (INDICTMENT)

 MULWANDA V THE PEOPLE 1976 ZR 133

o Not fair for accused or court to charge with 37 counts, call
87 witnesses and 89 exhibits

6. ADMISSION OF GUILTY PROCEDURE

 Section 221 of the Criminal Procedure Code makes provision for a
person charged with a criminal offence to admit guilty when:
o Informed by a police officer that proceedings will be
instituted(charged) or
o Or where summoned
 Applicable in cases where offence is punishable by-
(i) a fine not exceeding one thousand and five hundred
penalty units or imprisonment in default of payment of such
fine; or
(ii) a fine not exceeding one thousand and five hundred
penalty units or imprisonment not exceeding six months; or

(iii) a fine not exceeding one thousand and five hundred

penalty units or imprisonment not exceeding six months, or
both; or
(iv) is an offence specified by the Chief Justice, by statutory
notice,
- (offences are set out in the first schedule of section 221)
- Those to which schedule does not apply are in second
schedule( there are none in that schedule)

Page 31 of 59
 Section 178 Penal Code Idle and disorderly- 1 month and sixty
penalty units

 Accused must be served with a concise statement, in such form as

may be prescribed of the facts constituting and relating to the offence
 Such person may, before appearing in court to answer the charge
against him, sign and deliver to the prescribed officer a document,
Admission of Guilt Form, admitting that he is guilty of the offence
charged

 such person shall deposit with the prescribed officer

o the maximum amount of the fine which may be imposed by the
court or such lesser sum as may be fixed by such officer; or
o furnish such security, by way of deposit of property, as may be
approved by such officer for the payment within one month of
any fine which may be imposed by the court;
 such person shall not be required to appear in court to answer the
charge made against him unless the court, for reasons to be recorded
in writing, shall otherwise order.
o MUSHUNGA v THE PEOPLE 1968 ZR 85
Accused person must be informed of date on which court will
hear case
o appearance in court may be enforced by summons, or if
necessary, by warrant.

 A copy of the statement of facts and the Admission of Guilt Form is

transmitted to the court before which such person will appear
 A person who has signed and delivered an Admission of Guilt Form
may, at any time before the fixed day, transmit to the clerk of the
court-
Page 32 of 59
 o An intimation in writing that he wishes to withdraw the
admission or
o a submission in writing of matters in mitigation of sentence.

 On receipt of an intimation of withdrawal the clerk of the court shall

forthwith inform the prosecutor thereof.

 MUKUBESA v THE PEOPLE 1976 ZR 78

The hearing like in any criminal case must be in open court

 On the fixed day the court may proceed to hear and dispose of the
case in open court as follows:

o Deliver judgment as if a person had appeared in court and

pleaded guilty after the charge, statement of facts and any
written submission in mitigation have been read out in
court(mitigation can be done in court if not sent)
o If the accused person has withdrawn the admission of guilt and
appears in court, the court shall try the offence
o If the accused person has withdrawn his admission of guilt and
does not appear in court, the court shall issue summons
commanding attendance

 During trial of an accused person who has withdrawn his admission of

guilt, the court shall not permit any evidence to be led or any cross-
examination of such accused person in any way relating to his
Admission of Guilt Form.

 no punishment other than a fine shall be imposed on any person

convicted under this section., the exception being Traffic offences, the
court may, in addition to any fine imposed, exercise the powers of
Page 33 of 59
 suspension, cancellation, disqualifying and endorsement conferred
upon courts by the said Act.

 The provisions of this section shall not apply-

o where the accused person is a juvenile
o in respect of such offences or classes of offence as the Chief
Justice may specify by statutory notice.

7. THE TRIAL PROCESS GENERALLY

 TRIAL
o Calling the case
 Open to public excerpt
o Section 76 CPC interlocutory, prejudice to public
safety or trial of a juvenile
o Section 121 Juveniles Act –juvenile witness offences
against morality
o Section 120 Juveniles children not allowed(other than
infant in arms), except witness
o Section 15 of the State Security Act
 Case called-section 191 CPC; must proceed in
presence of accused
 Prosecutor and defence counsel put themselves on record
 Accused asked language he intends to use if not English
interpreter provided-section 195 evidence given in
language not understood must be interpreted
 Accused asked to confirm name and address
 Charge read out: both statement and particulars of
offence

Page 34 of 59
  Section 356 CPC In the case of a corporation appears by
a representative

o THE PLEA
 Accused invited to respond after each and every count is
read
 section 160 CPC where accused does not respond court
must enquire whether accused is capable of making a
defence
 section 161 CPC court to enter plea of not guilty
o Section 17 CPC accused medically examined-

 MALITA BANDA v THE PEOPLE 1978 ZR 223-incapacity

to make a defence under section 161(1) cannot result in
special finding under section 167
 where accused incapable of taking plea enter plea of not
guilty
o MUSITINI v THE PEOPLE 1975 ZR 53-plea of
not guilty where mute of malice or visitation of
God
 MBAYE v THE PEOPLE 1975 ZR 74- compliance
mandatory whenever it arises under section 160 and court
cannot send accused for treatment must proceed
 THE PEOPLE v NJOVU 1974 ZR 60-deaf mute must be
represented.
 THE PEOPLE v BANDA 1972 ZR 307 and THE PEOPLE
v MWABA 1973 ZR 271-the question of insanity can arise
even in cases where one is capable of making a defence
 STEWART v THE PEOPLE 1973

Page 35 of 59
 If case requires consent of DPP certificate presented
to court or case adjourned for presentation of
certificate
 Where more than one each and every one must respond to
each count
 Accused must personally plead not sufficient for counsel to
indicate that his client intends to plead guilty
 Court records plea of guilty or not guilty
 Where represented lawyer indicates whether it is according
to instructions
 Accused can plead guilty to some counts and not
guilty to others

o PLEA OF GUILTY
 Can plead on own volition or as a result of a plea
agreement –
 section 7 of the Plea Negotiations and Agreements Act
no 20 of 2010 Section 4 –plea negotiations can be
initiated by a public prosecutor or the accused person at
any time before judgment
o The accused person undertakes to plead guilty to an
agreed offence and fulfill other obligations
o Section 19 grant of legal aid to a person
wishing to negotiate a plea

o Section 5- sets out the prosecutors obligations are

to
o withdraw or discontinue the original charge
o To accept the accused persons plea to lesser
charge

Page 36 of 59
 o Section 6 the prosecutor is also obliged to inform
the accused person of the right to legal
representation and will only negotiate through the
lawyer.
o section 9 when ever an agreement has been
entered into the court must be informed in open
court or in chambers were good cause exists
 Accused invited to confirm particulars of offence
o SHAMPETA AND ANOTHER v THE PEOPLE
(1979) ZR 168
for a person to plead guilty they must appreciate the
nature of the offence and admit sufficient facts.
 Where there is statutory defence and accused is
unrepresented rule of practice is that court must explain
MWABA v THE PEOPLE (1974) ZR 264
 Prosecutor invited to present statements of fact
o includes medical reports
o public analysts report
o ballistics report
o post-mortem report
 Section 7 Pre Negotiation Agreements Act the plea
agreement Will be in writing and will contain the following
information
o The original charge
o The new charge
o The statements of facts
o A statement that the accused had been
informed of his rights
o The rights and obligations of the state and the
accused persons under the agreement

Page 37 of 59
 o It will also be signed by public prosecutor, the
accused and his lawyer

 statement of facts only on those where pleaded

guilty
 accused asked if facts true and correct
o THE PEOPLE v JOHN KAPALU KANGUYA 1979
288
a plea must not be equivocal. Each and every fact
must be admitted. Admission of the facts will not
validate equivocal or imperfect plea especially
where not represented
 confirms and /or indicates which ones not correct
 court considers whether disputed facts go to the root of the
admission
o if they do not court still records a plea of guilty
o may actually amend the facts to take care of the
disputed facts
o if goes to the root of the admission records a plea of
guilty
o THE PEOPLE v MASISSANI 1977 ZR 324
 Where facts vital to a conviction disputed
plea of not guilty should be entered. But
does not matter if not vital
 court considers whether statement of facts discloses an
offence , where does not enters plea of not guilty
o THE PEOPLE v PATEL 1968 ZR 167
facts must support the charge, where they do not
prosecutor must clarify or amend or court enter plea
of not guilty

Page 38 of 59
 section 10 Pre Negotiations Agreements Act the court
is not bound to accept a plea agreement except where non
acceptance would be contrary to the interests of justice
 Sections 11 and 12 Pre Negotiations Agreements
Act sets out the factors the court should consider before
accepting the agreement and the grounds on which an
agreement can be can refused
o The accused person has not been induced
o The accused person understands subsistence,
nature and consequences of the plea
agreement
o There is factual basis on which the agreement
has been made
o Acceptance of plea would not be contrary to
the interests of justice and public interests.
o An agreement that is contrary to interests of
justice will not be accepted
o An agreement whose facts do not disclose an
offence will not be accepted
o Where the accused person does not confirm
the agreement it will not be accepted
o Rejection of an agreement does not prevent
the parties from negotiating another one
o Where the agreement is not accepted trial
proceeds on the original charge
 on recording a plea of guilty court also convicts
 prosecutor invited to indicate if there are previous
conviction
 accused lawyer invited to mitigate

Page 39 of 59
 court passes sentence usually indicating why has arrived at
particular sentence
o THE PEOPLE V CHOTOO LALA 1974 ZR 201
Plea can be withdrawn at any stage before sentence
after which becomes functus official
o TITO MANYIKA TEPULA v THE PEOPLE 1981 ZR
304
o Within discretion of court to allow but for good and
sufficient grounds
 Section 15 and 16 Plea Negotiations and
Agreements Act - a party to a plea agreement can
withdraw from it where,
o The accused person was improperly induced,
has breached the terms of the agreement or
has made a misrepresentation
o The Prosecutor was misled on material fact by
accused person or his lawyer or where accused
was induced
 Pre Negotiations Agreements Act EXTRACTS
o section 8 requires the state to inform the victim of
the reason why the agreement was entered into and
its substance as soon as practicable
o The victim is also entitled to be present in
court when the agreement is considered
o Section 16Evidence made available in a plea
negotiation agreement cannot be used in any
criminal or civil proceedings
o Section 17 an application can be made to seal
records of a plea negotiations or agreement

Page 40 of 59
o PLEA OF NOT GUILTY
 prosecutor calls first witness
 there may be object to competence of witnesses-section
151 CPC and section 128 of Juveniles Act cap 53- spouse
being called as witness
 other witnesses remain outside
o MWABA v THE PEOPLE 1969 ZR 61-
A witness will not be disqualified from testifying
merely because they were in court during the
testimony of other witnesses
 witness sworn or affirmed-PHIRI V THE PEOPLE (1975)
ZR 30- where witness is non believer can affirm
o if child of tender years voire dire
o Procedure in section 122 of the Juveniles Act
 Summoning witnesses section 143 CPC
o Section 144 CPC can issue warrant were ignores or
145 CPC where has information that is unlikely to
attend
 witness led in evidence
o evidence in chief
o cross examined accused or defence counsel( counsel
cross examine in the order of the accused persons
they represent in the absence of agreement)
o SIKOTA v THE PEOPLE 1968 ZR 42
Accused persons in the order that they appear
cross examine
o re-examined on issues raised in cross examination
o court may ask to clarify during or after
 no order in which witnesses must be called but danger of
hearsay

Page 41 of 59
  all expert witnesses must be called except medical
o Section 191A document by medical officer can be
produced without the maker
o Section 192 affidavit of public analyst
 Court can issue a commission for the examination of a
witness- section 152
o Magistrate can apply for the commission section 154
 Can also produce affidavit using mutual legal assistance
 witness not limited to oral testimony may also refer to
things and documents-identifies exhibit during testimony
o by describing features
o if author or person whose has had custody can
produce exhibit
TRIAL WITHIN A TRIAL
 To determine admissibility of confession statement
 Accused cannot elect to remain silent

o submission of no case to answer

 defence makes the first speech
NGOMA v THE PEOPLE (1972) ZR 42- court should not
allow state to close its case and address the court before
defence has submitted on case to answer
 followed by prosecution
 defence reply
o RULING ON CASE TO ANSWER
 can find with case to answer
o same offence
o lesser offence
o different offence- invite or recall witness
 court can acquit

Page 42 of 59
 o no case to answer
o THE PEOPLE V WINTER MAKOWELA AND
ANOTHER (1979) ZR 290
o THE PEOPLE v JAPAU 1967 ZR 95
submission of no case to answer properly made and
upheld where
o essential elements of offence not proved
o prosecution evidence discredited in cross
examination
o a reasonable tribunal cannot convict
o CASE FOR THE DEFENCE
 accused advised on rights
o sworn statement
o unsworn statement
o can remain silent
o call witnesses

 where accused person is unrepresented court has duty to

explain statutory defence- CHANDA v THE PEOPLE
(1968) ZR 58

 SICHOTE v THE PEOPLE (1975) ZR 32-but can not do so

on the ground that counsel is inexperienced.
 accused first to give evidence
o SHAW v THE QUEEN 1963-64 ZR 167
o BARROW AND YOUNG v THE PEOPLE 1966 ZR
43- The accused person must give testimony before
his witnesses
o SIKOTA v THE PEOPLE 1968 ZR 42

Page 43 of 59
 First accused person gives evidence first and cross
examined by fellow accused in order of appearance
then by prosecutor
o if more than one first to cross examine if in person or
represented by different lawyers
 first accused person calls all witnesses before next gives
evidence and calls witness
 HASWELL MVULA v THE PEOPLE (1963-64) Z AND
NRLR 171- the defence must support allegations they
make in cross examination with evidence
o case in reply
o judgment
o previous conviction
o reports and mitigation
 social welfare reports
 advocate mitigates
o sentence

SUBORDINATE COURT TRIAL (CPC)

 PART 6 OF THE CPC deals with trials before the subordinate courts
o Sections 197-221
 Section 200-trial in the presence of the accused person
unless dispensed with under section 99
 Section 99-attendance can be dispensed with for
offences only attracting a fine or 3 Months
imprisonment
 Must be in writing or by counsel
 Where fine not paid can summon
 Where previous convictions not admitted can
summon

Page 44 of 59
 Section 202 – adjournments no more than 30 days and if
in custody 15 days
 Section 203-for non felony can proceed in absence of
accused but conviction can be set aside
 Section204-
 plea
 plea of not guilty
 refusal to plead

 Section 205 plea of not guilty-the trial can cross examine

witnesses by self if not represented
 Section 206 acquittal- when the court can do it
 Section 207-208 defence
 Explain the charge again and
 The rights of the accused person
 Accused must be the first to give evidence before his
witnesses
 Section 209 submissions-prosecutor submits first
followed by the defence counsel where ( calls no
witnesses)
 Only accused gives evidence in defence
 Accused gives unsworn evidence
 Remains silent (s. 212)

 Section 212 where does not give evidence immediately

prosecution sums up and is followed by defence
 Section 210 evidence in reply

 Section 214- court can

 Convict or
 Acquit or

Page 45 of 59
  Make an order

COMMITAL FOR SENTENCE TO HIGH COURT

 Section 217 committal for sentence to High Court
 Where accused is not less than 17 years
 Antecedents and character are such that greater
punishment be inflicted or minimum sentence is
higher than
 Section 218
 Record sent to high court
 Court proceeds as if had convicted him, thus appeal
lies in the Supreme Court
 THE PEOPLE v OSTAIN NKAUSU AND ANOTHER 1979 293
o Sets out principle but was before amendment of section 217
 CHOMBA V THE PEOPLE (1975) ZR 245
o Section 217(2) where one receives consecutive sentences the
total of which is more than the maximum sentence, the case will
not be committed to the High Court for sentencing.

TRIAL BEFORE THE COURTS MARTIAL (DEFENCE ACT)

 Section 86 can try person subject to military law

o Section 121 3years after commission or
o Within 3 months of ceasing to be subject of military law
 Section 87-sets out who can convene the court
o Officer not below rank of Colonel or
o Officer above rank of major on behalf of Colonel
 Section 88 composition, a president and two other members but
o Four members where
 Accused officer or
 Were punishment or maximum punishment is death

Page 46 of 59
 o A member must have 2 years service
o Not less than two members shall be of a rank not below rank
of captain
o President must be Major or above unless circumstances but
never below Captain
o Section 127 Commander can request Chief Justice to appoint
Judge Advocate
 ALFRED CHAMANGA V THE PEOPLE (1970) ZR 18
the role of the judge advocate is to advise the court on
points of law and to sum up
 Section 89 disqualification
o Officer convening
o Officer who has investigated
 JOHN EZEKIEL MUMBA V THE PEOPLE 2006 ZR 93
 Procedure at trial
o Section 91 – accused can on reasonable ground object to
any member of the court challenge
 Where it is president convening officer appoints another
 Where member can proceed if not below legal minimum
o Section 92-Everyone takes oath including members, judge
advocate
o Section 93-sit in open court unless it is expedient in the
interests of the administration of justice to sit in camera
o Section 94- can be dissolved where
 Where convening officer thinks it is in the interest of the
administration can dissolve
 Where death of member reduces them to below legal
minimum
 Where death of president and senior member is below
rank of captain

Page 47 of 59
  Were an accused person cannot be tried within
reasonable time owing to sickness or incapacity
o Section 95 -decisions of the court by majority and were
equal one shall be acquitted
 Where only punishable by death penalty can only
imposed if all concur and where they do not court shall
be dissolved and a retrial held
 Were also punishable by death will not be imposed if do
not concur
 Were equity of votes during trial on sentence or any
issue except finding president shall have casting vote
o Section 97 power to convict fro offence not charged-
o Section 98- rules of evidence similar to civil courts
o Section 102 findings of guilt must be confirmed
 Section 106-confirming officer is one who convened or
his successor or officer superior to convening officer or
President
 Section 105 – can withhold if thinks
 unreasonable or cannot be supported considering
the evidence,
 wrong in law
 there was a miscarriage of justice

 Can substitute finding but not higher than court

 Can refer to higher confirming officer
o Section 103 can petition against finding sentence or both
o Section 104 confirming officer may ask court to review
decision where
 Finding against weight of evidence or
 Wrong determination of question of law

Page 48 of 59
 o Section 122-despite it being an offence under this act one
can still be tried in civil courts
o Section 123 persons cannot be tried where
 Tried by civil court or other courts martial
 Charge dismissed or found not guilty by commanding
officer or appropriate superior officer
 The commanding officer has condoned the offence
o Section 136 appeal lies in the Supreme Court

TRIAL BEFORE THE HIGH COURT

Trial before the High Court is after a preliminary inquiry or summary

committal

 PRELIMINARY INQUIRY

o Section 222 by any subordinate court

o Section 223 whenever case not triable by the Subordinate
court or is triable by the High Court in section 10 or 11
 Sub-section (3)-will not hold one if information signed
by DPP is presented
o Section 224 procedure;
 Charge read procedure explained but no plea
 Prosecution witnesses called examined, cross-examined
and re-examined
 Witnesses statements read and asked to confirm and
then signed by witness and court plus reporter
 Prosecutor closes case defence submit followed by
prosecutors reply

Page 49 of 59
 o Section 225 –medical evidence can be presented without
witness being called if author is medical office or Government
analyst.
o Section 226-can not object to a charge on ground that for
defect in substance or form or for variation between evidence
and charge
 Where court of view that misled can adjourn for purpose
of recalling witnesses
o Section 228-where evidence discloses offence
 Accused invited to make statement, does not plead or
put up a defence
 And call witnesses
 Can reserve the right to make a statement and call
witnesses to trial
o Section 229- right to address court
o Section 230-discharge
 THE PEOPLE v PETROL ZAMBWELA 2002 ZR 145-
there is no provision in the CPC for an acquittal during a
Preliminary Inquiry
o Section 231- test sufficient evidence to put accused on
his trial committal for trial
o Section 232- summary adjudication where evidence
discloses lesser offence
 Since plea not taken may need to take plea again
before recall of witnesses
o Section 233-accused and witnesses bound over
 Conditionally
 Unconditionally

SUMMARY COMMITTAL PROCEDURE

Page 50 of 59
 o Section 254-DPP can issue certificate
o Section 255-where certificate is issued a Preliminary Inquiry
should not take place or should be abandoned
 ATTORNEY GENERAL v EDWARD JACK SHAMWANA
AND OTHERS 1981 ZR 12-section 255 prohibits the
continuation of a Preliminary Inquiry when DPP issues
certificate

THE TRIAL
o Section 272-Arraignment by information
 Section 223 allows for joining of a person who was not
committed if was not discovered
o Section 276- plea
o Section 277-plea in bar
o Section 278- refusal to plead
o Section 280 -plea of guilt
o Section 286-additional witnesses
 233-witnesses bound over but can call one who wasn’t a
witness during a preliminary Inquiry
 234-refusal to be bound over can result in imprisonment
o Section 288-reading of depositions
o Section 152- issuance of a commission
 153 parties may examine
 Section 154 magistrate may apply to the high court
o Section 290 –statement of accused person
o Section 291-close of prosecution case
o Section 292-the defence
o Section 294 evidence in reply
o Section 296-accused not giving evidence

Page 51 of 59
8.JUDGMENT
 Section 168 CPC-should be pronounced in open court
o whole judgment read
o accused be brought to court
o absence of party will not invalidate judgment
 section 353 CPC-provision that irregularity in
procedure will not invalidate finding or order of court
unless results in substantial miscarriage of justice
 section 169 CPC- contents of judgment
o prepared by presiding justice
o points for determination
o decision and reason for decision
o offence convicted of and sentence
o Where acquittal offence acquitted and words directing that
accused is being set at liberty
o Must be dated and signed
 DASHONI V THE PEOPLE (1966) ZR 58
Failure to sign a judgment is an irregularity but is
curable as there is no miscarriage of justice
 Section 169A CPC- where judge or magistrate is ill ,dies or
relinquishes or cesses to be another can deliver
 Section 302 CPC court may receive such evidence to help it pass
sentence
 NYIRONGO V THE PEOPLE (1972) ZR 290-where judgment is
lost appeal must be allowed

9. MOTION IN ARREST OF JUDGMENT

Page 52 of 59
 An accused person or his advocate may move the court to arrest
judgment in a case tried on an information

 Section 298- CPC provides that;

o The accused person may, at any time before sentence, whether

on his plea of guilty or otherwise, move in arrest of judgment, on
the ground that the information does not, after any amendment
which the court is willing and has power to make, state any
offence which the court has power to try.

o The court may, in its discretion, either hear and determine the
matter during the same sitting, or adjourn the hearing thereof to
a future time to be fixed for that purpose.

 The application can be made at any time before the passing of the
sentence but after judgment;

o In cases where the accused has pleaded not guilty or

o Where accused has pleaded guilty

 The grounds on which the application can be made are that

o Lack of certainty in the information or does not disclose an

offence. There is a defect in the information which defect is not
formal and the court has not amended it either at case to answer
or in the judgment
o Aggravated robbery not disclosing that one was armed and
working with another.
o The charge is founded on an act that was repealed before the
plea

 Judgment cannot be arrested on the ground that:

o The evidence does not support the charge

o There was a procedural irregularity during the trial

 If the court decides in favour of the accused, he shall be discharged

from that information.

Page 53 of 59
THE TRIAL IN DETAIL

MENTAL DISABILITY
 accused person must plead when charge is read
 where unable to respond must find out why

 section 160 CPC court must inquire into where issue of failure to
plead by reason of unsoundness of mind or disability arises
o THE PEOPLE v MUSITINI 1975 ZR 53 the court should
immediately enquire when the issue of whether accused is
capable of making a defence

 section 161 CPC

o this may include medical examination
o enters plea of not guilty where finds that not able to make
defence
o THE PEOPLE v MWABA 1973 ZR 271 whether a person
can make a defence should be dealt with as soon as it arises
from any person including a medical expert
o THE PEOPLE v BANDA 1972 ZR 307 in the inquiry the court
needs to find out whether is capable of making a defence or
whether he was insane at the commission of the crime

 trial proceeds
 at end of trial
o acquits if no evidence-161(2)(a) CPC
o called upon to give defence MWABA CASE
 if sufficient evidence to justify conviction

Page 54 of 59
 o order detention during the presidents pleasure-section
161(2)(b) CPC
o THE PEOPLE v MWEWA 1971 ZR 171 procedure under
section 163(1) (was 154(1)) is only applicable to a person
who suffers from mental illness. Mute person for the purposes
of sentencing treated like a normal person.

o special finding (defence of insanity-section 167)

 even where acquitted can order detention-section 161(3)

o Mental Disorders Act Cap 305

 section 165 CPC- one detained because cannot make a defence

must be brought back when ok

o MBAYE v THE PEOPLE 1975 ZR 74 where a person is taken

for medical examination even if they have been found not to
be able to make a defence they must be tried. They cannot
wait until treated.
A court cannot make a special finding if it finds one innocent
by reason of insanity

o CHABALA v THE PEOPLE 1975 ZR 128 the difference

between mental capacity at the time of a trial (fairness of the
trial) and at the time of the commission of the offence
(criminal responsibility)

 no appeal against special finding

Page 55 of 59
 o MALITA BANDA V THE PEOPLE 1978 ZR 223 no appeal
lies to an order under 161(2)(b) on its merit but where made
without jurisdiction.
 Onus of establishing unsoundness of mind rests on accused person
o KHUPE KAFUNDA V THE PEOPLE 2005 ZR 31

TRIAL WITHIN A TRIAL

 in the course of investigation the accused may give incriminating
evidence
 verbal or written
 the written one is usually called a warn and caution statement
 admissibility of a confession is being voluntary and not truthfulness
 where it is contested that statement was not free and fair
o KASUBA V THE PEOPLE 1975 ZR 41when a witness is
about to be referred to the incriminating evidence the
accused should be asked if they object
o HAMFUTI v THE PEOPLE (1972) ZR 420 whether or not the
accused is represented he must be asked whether he objects
to the contents of a statement
 A trial within a trial Will not be held because accused did not
understand the language or was scared
o VILONGO v THE PEOPLE 1977 ZR 423 not sufficient that
was scared but that fear was put into a person to induce the
confession
 an allegation that no statement was made despite beatings does
not raise the issue of voluntariness but raises a question of
credibility as one of the general issues-but being forced to sign does
o MATE, MBUMWAE AND MWALA 1995-1997 ZR 135

Page 56 of 59
  Prosecution will call police officers and/or persons who were present
during recording of statement
o Witnesses cross examined and re examined
 At close of prosecution case accused person gives testimony and
calls witnesses
o Cross examination limited to admissibility of statement during
trial within a trial-
o TAPISHA v THE PEOPLE ZR 1973 222 –has argument why
 held even where subsequently
o LUMANGWE WAKILABA v THE PEOPLE 1979 ZR 74 can
be held where accused suggests that was induced even after
the prosecution has closed its case

VOIRE DIRE
 At common law a person incapable of understanding an oath by reason
of infancy was incompetent to testify
 Section 122 (1) of The Juveniles Act provides for admission of
child’s evidence

 122. (1) Where, in any proceedings against any person for

any offence or in any civil proceedings, any child of tender
years called as a witness does not, in the opinion of the court,
understand the nature of an oath, his evidence may be
received though not on oath, if, in the opinion of the court, he
is possessed of sufficient intelligence to justify the reception
of his evidence and understands the duty of speaking the
truth; and his evidence though not given on oath but otherwise
taken and reduced into writing so as to comply with the
requirements of any law in force for the time being, shall be

Page 57 of 59
 deemed to be a deposition within the meaning of any law so in
force:

 Provided that where evidence admitted by virtue of this

section is given on behalf of the prosecution, the accused shall
not be liable to be convicted of the offence unless that
evidence is corroborated by some other material evidence in
support thereof implicating him.

ZULU v THE PEOPLE 1973 ZR 326 sets out procedure under section
122
o The court must first decide that the proposing witness is a child
of tender years; if he is not, the section does not apply and
the only manner in which the witness's evidence can be
received is on oath.
o If the court decides that the witness is a child of tender years,
it must then inquire whether the child understands the nature
of an oath; if he does, he is sworn in the ordinary way and his
evidence is received on the same basis as that of an adult
witness.
o If, having decided that the proposing witness is a child of tender
years, the court is not satisfied that the child understands
the nature of an oath, it must then satisfy itself that he is
possessed of sufficient intelligence to justify the
reception of his evidence and that he understands the
duty of speaking the truth; if the court is satisfied on both
these matters then the child's evidence may be received
although not on oath, and in that event, in addition to any other
cautionary rules relating to corroboration (for instance because
the offence charged is a sexual one) there arises the statutory

Page 58 of 59
 requirement of corroboration contained in the proviso to section
122 (1).
o But if the court is not satisfied on either of the foregoing
(sufficient intelligence and duty to speak the truth) matters the
child's evidence may not be received at all.

 CHIBWE V THE PEOPLE 1972 ZR 239 the court must record actual
questions and answers on which the conclusion has been reached.
 No fixed age below which child is incompetent to give evidence on
oath or unsworn evidence
 Where a voire dire has been inadequate the fault lies with the court;
there is no question of the prosecution being given the opportunity to
look for further evidence to strengthen its case.
o SEMANI V THE PEOPLE 1973 ZR 203-ordering a retrial is in
the discretion of the court

Page 59 of 59