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Children Cannot Be Jailed in Zambia – Appeal Court
By Dickson Jere
Finally, the Court of Appeal has rendered its opinion on the newly enacted Children’s Code Act and categorically stated that children cannot be jailed in Zambia under the new law.
A three member panel of Judges made the decision after the Director of Public of Prosecution (DPP) appealed against the High Court (Chipata) decision that refused to jail a child murderer on account of the new law.
“It is clear that with the enactment of the Children’s Code, the power of the court to imprison children of certain ages, which was expressly set out in the Juvenile’s Act, was omitted,” the Judges observed.
“It is our view that had Parliament intended that the courts should still have power to imprison children, the Children’s Code would have retained a provision that clearly and expressly provided for it,” the Judges said.
The Judges also went and looked at the Parliamentary debates to see what was the basis of removing this law but found that the debate did not touch that provision specifically.
The Judges said imprisonment is most severe punishment in Zambia.
“We take the view that the power to impose such a severe sanction, especially on a child, must expressly be provided for,” they said.
The Judges, led by former DPP and now Court of Appeal deputy President Chalwe Mchenga, agreed with the High Court that a child cannot be imprisoned under the new law.
The court called for the review of the Children’s Code.
“It is also apparent that the Code, has, in some instances, made the sentencing of delinquent children and young persons, a nightmare,” they concluded.
“However, it is our view that the courts are not the right forum for resolution of sentencing problem this case has exposed,” they added.
This is in sharp contrast with recent High Court judgment which said courts can still jail children even under the new law.
Case citation- The People v Abraham Phiri Appeal No. 19 of 2024 and Judgement handed down today 14th May, 2024.
This case has now clarified the legal position regarding jailing of children under the new law. Parliament may need to review the same or indeed the DPP should appeal to Supreme Court for final decision.
This issue must be resolved conclusively in view of the alarming criminal cases involving junkies in our communities.
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