Lusaka-based legal practitioner Simon Mulenga Mwila has welcomed Zambia’s decision to strengthen laws against gender-based violence, but warns that the newly enacted Criminal Procedure Code (Amendment) Act No. 4 of 2026, which makes rape a non-bailable offence, could create serious risks within the justice system.
In a statement shared on Facebook, Mwila acknowledged that the amendment reflects Zambia’s commitment to fighting rape and protecting victims, but questioned whether the law may unintentionally punish accused persons too early before cases are proven in court.
“Are We Protecting Victims or Punishing the Accused Too Early?”
Mwila praised the intention behind the new legislation, saying it is a strong sign that the country is taking gender-based violence seriously.
“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,” Mwila wrote.
He, however, warned that the law has pushed Zambia into what he described as a “risky space” where constitutional safeguards may be compromised.
Mwila Cites Experience in Justice System
Mwila, who says he has been part of the justice system since 2011, explained that his concerns are grounded in real experience. He revealed that he began his career as a registry clerk before becoming a practicing lawyer, giving him first-hand exposure to how cases unfold in court.
He noted that while many people assume every accusation is truthful, reality often proves otherwise.
“I have seen people hold the Bible, swear before God that they will tell the truth… and then lie straight after,” he said.
Mwila stressed that serious allegations must be handled carefully, and the justice system should avoid treating accusations as automatic proof.
Bail Is Not Meant to Be Punishment
The lawyer explained that bail was designed as a procedural tool to ensure that an accused person returns to court, not as a punishment mechanism.
He said the new amendment removes judicial discretion, meaning anyone accused of rape is automatically detained without the opportunity for bail, regardless of whether the case is strong or weak.
Mwila warned that such automatic detention could result in innocent people spending long periods behind bars while waiting for trial.
“You Can’t Rewind That Damage”
Mwila described a scenario where an accused person is locked up immediately due to the non-bailable law, while the case takes one to two years to conclude.
He said that even if the accused is later found innocent, the damage caused by prolonged detention cannot be undone.
“By then, the person has already lost everything. Time. Work. Reputation. Stability at home. You can’t rewind that kind of damage,” Mwila stated.
Calls for Balanced Reforms
Mwila emphasized that protecting victims is important and non-negotiable, but warned that the justice system must also avoid creating new victims through wrongful detention.
He suggested that there were better approaches that could have been implemented instead of removing bail entirely, including:
Tough bail conditions
Protection orders for victims
No-contact restrictions
Faster court processes to prevent delays
He argued that these measures would address genuine risk without automatically imprisoning every accused person before trial.
“Both Realities Exist”
Mwila concluded by stating that Zambia must acknowledge two important truths: that some accused persons are guilty and deserve punishment, while others may be innocent and later cleared by the courts.
“Some people are guilty and must be punished. And some people are accused and later found to be innocent. Both of those realities exist,” he said.
His comments have sparked debate online, with many Zambians weighing the balance between protecting victims and preserving the constitutional rights of accused persons.
Mwila is a Legal Practitioner, Commissioner for Oaths, Notary Public, and an academic holder of multiple qualifications including LLB, LLM, MBA, and a DBA student.
