CHAPTER 88
CRIMINAL PROCEDURE CODE ACT

Arrangement of Sections

   Section

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

   3.   Trial of offences under Penal Code and other written laws

PART II
POWERS OF COURTS

   4.   Offences under Penal Code

   5.   Offences under other written laws

   6.   Sentences which High Court may pass

   7.   Powers of subordinate courts

   8.   Reconciliation

   9.   Sentences requiring confirmation

   10.   Power of High Court to order preliminary inquiry

   11.   Cases to be tried only by High Court

   12.   Combination of sentences or orders

   13.   Release on bail pending confirmation or other order

   14.   Repealed

   15.   Sentences in case of conviction for several offences at one trial

   16.   Power of Courts to suspend sentence

   17.   Medical examination of accused persons

PART III
GENERAL PROVISIONS

ARREST, ESCAPE AND RETAKING ARREST GENERALLY

   18.   Arrest, how made

   19.   Search of place entered by person sought to be arrested

   20.   Power to break out of any house for purposes of liberation

   21.   No unnecessary restraint

   22.   Search of arrested persons

   23.   Power of police officer to detain and search vehicles and persons in certain circumstances

   24.   Mode of searching women

   25.   Power to seize offensive weapons

ARREST WITHOUT WARRANT

   26.   Arrest by police officer without warrant

   27.   Arrest of vagabonds, habitual robbers, etc.

   28.   Procedure when police officer deputes subordinate to arrest without warrant

   29.   Refusal to give name and residence

   30.   Disposal of persons arrested by police officer

   31.   Arrest by private persons

   32.   Disposal of persons arrested by private person

   33.   Detention of persons arrested without warrant

   34.   Police to report apprehensions

   35.   Offence committed in Magistrate’s presence

   36.   Arrest by Magistrate

ESCAPE AND RETAKING

   37.   Recapture of person escaping

   38.   Provisions of sections 19 and 20 to apply to arrests under section 37

   39.   Duty to assist Magistrate, etc.

PREVENTION OF OFFENCES

SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

   40.   Power of Magistrate of subordinate court of the first or second class

   41.   Security for good behaviour from persons disseminating seditious matters

   42.   Powers of other Magistrates

   43.   Security for good behaviour from suspected persons

   44.   Security for good behaviour from habitual offenders

   45.   Order to be made

   46.   Procedure in respect of person present in court

   47.   Summons or warrant in case of person not so present

   48.   Copy of order under section 45 to accompany summons or warrant

   49.   Power to dispense with personal attendance

   50.   Inquiry as to truth of information

   51.   Order to give security

   52.   Discharge of person informed against

PROCEEDINGS IN ALL CASES SUBSEQUENT TO ORDER TO FURNISH SECURITY

   53.   Commencement of period for which security is required

   54.   Contents of bond

   55.   Power to reject sureties

   56.   Procedure on failure of person to give security

   57.   Power to release persons imprisoned for failure to give security

   58.   Power of High Court to cancel bond

   59.   Discharge of sureties

   60.   Forfeiture

PREVENTIVE ACTION OF THE POLICE

   61.   Police to prevent cognizable offences

   62.   Information of design to commit such offences

   63.   Arrest to prevent such offences

   64.   Prevention of injury to public property

PART IV
PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS

PLACE OF INQUIRY OR TRIAL

   65.   General authority of Courts of Zambia

   66.   Accused person to be sent to district where offence committed

   67.   Removal of accused person under warrant

   68.   Mode of trial before High Court

   69.   Ordinary place of inquiry and trial

   70.   Trial at place where act done or where consequence of offence ensues

   71.   Trial where offence is connected with another offence

   72.   Trial where place of offence is uncertain

   73.   Offence near boundary of district or on or near railway

   74.   Offence committed on a journey

   75.   High Court to decide in cases of doubt

   76.   Court to be open

TRANSFER OF CASES

   77.   Transfer of case where offence committed outside jurisdiction

   78.   Transfer of cases between Magistrates

   79.   Procedure when, after commencement of inquiry or trial, Magistrate finds case should be transferred to another Magistrate

   80.   Power of High Court to change venue

CRIMINAL PROCEEDINGS

   81.   Power of Director of Public Prosecutions to enter nolle prosequi

   82.   Delegation of powers by Director of Public Prosecutions

   83.   Criminal informations by Director of Public Prosecutions

   84.   Signature of Director of Public Prosecutions to be evidence

   85.   Arrest of persons for offences requiring the consent of the Director of Public Prosecutions for commencement of prosecution

APPOINTMENT OF PUBLIC PROSECUTORS AND CONDUCT OF PROSECUTIONS

   86.   Power to appoint public prosecutors

   87.   Powers of public prosecutors

   88.   Withdrawal from prosecution in trials before subordinate courts

   89.   Permission to conduct prosecution

INSTITUTION OF PROCEEDINGS

MAKING OF COMPLAINT

   90.   Institution of proceedings

   91.   Issue of summons or warrant

PROCESSES TO COMPEL THE APPEARANCE OF ACCUSED PERSONS

SUMMONS

   92.   Form and contents of summons

   93.   Service of summons

   94.   Service when person summoned cannot be found

   95.   Procedure when service cannot be effected as before provided

   96.   Service on company

   97.   Service outside local limits of jurisdiction

   98.   Proof of service when serving officer not present

   99.   Power to dispense with personal attendance of accused

WARRANT OF ARREST

   100.   Warrant after issue of summons

   101.   Summons disobeyed

   102.   Form, contents and duration of warrant of arrest

   103.   Court may direct security to be taken

   104.   Warrants, to whom directed

   105.   Order for assistance directed to land-holder

   106.   Execution of warrant directed to police officer

   107.   Notification of substance of warrant

   108.   Person arrested to be brought before court without delay

   109.   Where warrant of arrest may be executed

   110.   Forwarding of warrants for execution outside jurisdiction

   111.   Procedure in case of warrant directed to police officer for execution outside jurisdiction

   112.   Procedure on arrest of person outside jurisdiction

   113.   Irregularities in warrant

MISCELLANEOUS PROVISIONS REGARDING PROCESSES

   114.   Power to take bond for appearance

   115.   Arrest for breach of bond for appearance

   116.   Power of court to order prisoner to be brought before it

   117.   Provisions of this Part generally applicable to summonses and warrants

SEARCH WARRANTS

   118.   Power to issue search warrant

   119.   Execution of search warrant

   120.   Persons in charge of closed place to allow ingress thereto and egress therefrom

   121.   Detention of property seized

   122.   Provisions applicable to search warrants

PROVISIONS AS TO BAIL

   123.   Bail

   124.   Additional conditions of bail bond

   125.   Release from custody

   126.   Amount of bail, and deposits

   127.   Power to order sufficient bail when that first taken is insufficient

   128.   Discharge of sureties

   129.   Death of surety

   130.   Persons bound by recognizance absconding may be committed

   131.   Forfeiture of recognizance

   132.   Appeal from and revision of orders

   133.   Power to direct levy of amount due on recognizance

CHARGES AND INFORMATIONS

   134.   Offence to be specified in charge or information with necessary particulars

   135.   Joinder of counts in a charge or information

   136.   Joinder of two or more accused in one charge or information

   137.   Mode in which offences are to be charged

PREVIOUS CONVICTION OR ACQUITTAL

   138.   Persons convicted or acquitted not to be tried again for same offence

   139.   Person may be tried again for separate offence

   140.   Consequences supervening or not known at time of former trial

   141.   Where original court was not competent to try subsequent charge

   142.   Previous conviction, how proved

COMPELLING ATTENDANCE OF WITNESSES

   143.   Summons for witness

   144.   Warrant for witness who disobeys summons

   145.   Warrant for witness in first instance

   146.   Mode of dealing with witness arrested under warrant

   147.   Power of court to order prisoner to be brought up for examination

   148.   Penalty for non-attendance of witness

EXAMINATION OF WITNESSES

   149.   Procedure where person charged is called for defence

   150.   Refractory witnesses

   151.   Cases where wife or husband may be called without consent of accused

COMMISSIONS FOR THE EXAMINATION OF WITNESSES

   152.   Issue of commission for examination of witness

   153.   Parties may examine witness

   154.   Power of Magistrate to apply for issue of commission

   155.   Return of commission

   156.   Adjournment of inquiry or trial

EVIDENCE FOR DEFENCE

   157.   Competency of accused and husband or wife as witnesses

   158.   Procedure where person charged is called for defence

   158A.   Completion of proceedings

   159.   Right of reply

PROCEDURE IN CASE OF THE INSANITY OR OTHER INCAPACITY OF AN ACCUSED PERSON

   160.   Question whether accused capable of making his defence

   161.   Procedure where accused unfit to make his defence

   162.   Procedure following order of detention during President’s pleasure

   163.   Detention during President’s pleasure

   164.   Discharge of persons detained during President’s pleasure

   165.   Resumption of trial

   166.   Preliminary inquiries

   167.   Defence of insanity at the time of the offence

   167A.   Application to persons detained in terms of orders made under former provisions

JUDGMENT

   168.   Mode of delivering judgment

   169.   Contents of judgment

   169A.   Completion of proceedings

   170.   Copy of judgment, etc, to be given to accused on application

   171.   Entry of judgment where public officer convicted of offence

COSTS, COMPENSATION AND DAMAGES

   172.   Costs against accused or prosecution

   173.   Order to pay costs appealable

   174.   Compensation in case of frivolous or vexatious charge

   175.   Power of court to order accused to pay compensation

   176.   Costs and compensation to be specified in order; how recoverable

   177.   Power of court to award expenses or compensation out of fine

   178.   Wrongful conversion and detention of property

RESTITUTION OF PROPERTY

   179.   Property found on accused person

   180.   Stolen property

MISCELLANEOUS PROVISIONS

   181.   When offence proved is included in offence charged

   182.   Person charged with any offence may be convicted of attempt

   183.   Person charged with treason may be convicted of treason-felony and person charged with treason or treason-felony may be convicted of sedition

   184.   Alternative verdicts in various offences involving the homicide of children

   185.   Person charged with manslaughter in connection with the driving of a motor vehicle may be convicted of reckless or dangerous driving

   186.   Alternative verdicts in charges of rape and kindred offences

   187.   Person charged with burglary, etc, may be convicted of kindred offence

   188.   Alternative verdicts in charges of stealing and kindred offences

   189.   Construction of sections 181 to 188

   190.   Person charged with misdemeanour not to be acquitted if felony proved

PART V
MODE OF TAKING AND RECORDING EVIDENCE IN INQUIRIES AND TRIALS

   191.   Evidence to be taken in presence of accused

   191A.   Reports by medical officers in public service

   192.   Evidence of analyst

   193.   Evidence of photographic process

   194.   Evidence of plans, theft of postal matters and goods in transit on railways

   195.   Interpretation of evidence to accused or his advocate

   196.   Remarks respecting demeanour of witness

PART VI
PROCEDURE IN TRIALS BEFORE SUBORDINATE COURTS

PROVISIONS RELATING TO THE HEARING AND DETERMINATION OF CASES

   197.   Trials in subordinate courts

   198.   Trials with assessors

   199.   Non-appearance of complainant at hearing

   200.   Appearance of both parties

   201.   Withdrawal of complaint

   202.   Adjournment

   203.   Non-appearance of parties after adjournment

   204.   Accused to be called upon to plead

   205.   Procedure on plea of “not guilty”

   206.   Acquittal

   207.   The defence

   208.   Defence

   209.   Procedure where defence calls no witnesses other than accused

   210.   Evidence in reply

   211.   Prosecutor’s reply

   212.   Where the accused person does not give evidence or make unsworn statement

   213.   Variance between charge and evidence and amendment of charge

   214.   The decision

   215.   Drawing up of conviction or order

   216.   Order of acquittal bar to further proceedings

   217.   Committal to High Court for sentence

   218.   Procedure on committal for sentence

LIMITATIONS AND EXCEPTIONS RELATING TO TRIALS BEFORE SUBORDINATE COURTS

   219.   Limitation of time for summary trials in certain cases

   220.   Procedure in case of offence unsuitable for summary trial

   221.   Payment by accused persons of fines which may be imposed for minor offences without appearing in court

PART VII
PROVISIONS RELATING TO THE COMMITTAL OF ACCUSED PERSONS FOR TRIAL BEFORE THE HIGH COURT

PRELIMINARY INQUIRY BY SUBORDINATE COURTS

   222.   Power to commit for trial

   223.   Court to hold preliminary inquiry

   224.   Depositions

   225.   How certain documents proved

   226.   Variance between evidence and charge

   227.   Remand

   228.   Provisions as to taking statement or evidence of accused person

   229.   Evidence and address in defence

   230.   Discharge of accused person

   231.   Committal for trial

   232.   Summary adjudication

   233.   Complaint and witnesses to be bound over

   234.   Refusal to be bound over

   235.   Accused person entitled to copy of depositions

   236.   Binding over of witnesses conditionally

PRESERVATION OF TESTIMONY IN CERTAIN CASES

   237.   Taking the depositions of persons dangerously ill

   238.   Notices to be given

   239.   Transmission of statement

   240.   Use of statement in evidence

PROCEEDINGS AFTER COMMITTAL FOR TRIAL

   241.   Transmission of records to High Court and Director of Public Prosecutions

   242.   Power of Director of Public Prosecutions to direct further investigation

   243.   Powers of Director of Public Prosecutions as to additional witnesses

   244.   Return of depositions with a view to summary trial

   245.   Filing of information

   246.   Time in which information to be filed

   247.   Notice of trial

   248.   Copy of information and notice of trial to be served

   249.   Return of service

   250.   Postponement of trial

RULES AS TO INFORMATIONS BY THE DIRECTOR OF PUBLIC PROSECUTIONS

   251.   Informations by Director of Public Prosecutions

   252.   Form of information

PART VIII
SUMMARY COMMITTAL PROCEDURE FOR TRIAL OF ACCUSED PERSON BEFORE THE HIGH COURT

   253.   Interpretation

   254.   Certifying of case as a summary procedure case

   255.   No preliminary inquiry in summary procedure case

   256.   Record to be forwarded

   257.   Filing of an information

   258.   Statements, etc, to be supplied to the accused

   259.   Affidavit of medical witness may be read as evidence

PART IX
PROCEDURE IN TRIALS BEFORE THE HIGH COURT

PRACTICE AND MODE OF TRIAL

   260.   Practice of High Court in its criminal jurisdiction

   261.   Trials before High Court

LIST OF ASSESSORS

   262.   Preparation of list of assessors

   263.   Liability to serve

   264.   Exemptions

   265.   Publication of list

   266.   Revision of list

ATTENDANCE OF ASSESSORS

   267.   Summoning assessors

   268.   Form of summons

   269.   Excuses

   270.   List of assessors attending

   271.   Penalty for non-attendance of assessor

ARRAIGNMENT

   272.   Pleading to information

   273.   Orders for amendment of information, separate trial, and postponement of trial

   274.   Quashing of information

   275.   Procedure in case of previous convictions

   276.   Plea of “not guilty”

   277.   Plea of autrefois acquit and autrefois convict

   278.   Refusal to plead

   279.   Plea of “guilty”

   280.   Proceedings after plea of “not guilty”

   281.   Power to postpone or adjourn proceedings

SELECTION OF ASSESSORS

   282.   Selection of assessors

   283.   Absence of an assessor

   284.   Assessors to attend at adjourned sittings

CASE FOR THE PROSECUTION

   285.   Opening of case for prosecution

   286.   Additional witnesses for prosecution

   287.   Cross-examination of witnesses for prosecution

   288.   Depositions may be read as evidence in certain cases

   289.   Deposition of medical witness may be read as evidence

   290.   Statement or evidence of accused

   291.   Close of case for prosecution

CASE FOR THE DEFENCE

   292.   The defence

   293.   Additional witnesses for defence

   294.   Evidence in reply

   295.   Prosecutor’s reply

   296.   Where accused person does not give evidence

CLOSE OF HEARING

   297.   Delivery of opinions by assessors

PASSING SENTENCE

   298.   Motion in arrest of judgment

   299.   Sentence

   300.   Power to reserve decision on question raised at trial

   301.   Objections cured by judgment

   302.   Evidence for arriving at proper sentence

PART X
SENTENCES AND THEIR EXECUTION

SENTENCE OF DEATH

   303.   Sentence of death

   304.   Authority for detention

   305.   Record and report to be sent to President

   306.   Procedure where woman convicted of capital offence alleges she is pregnant

OTHER SENTENCES

   306A.   Court to make community service order

   306B.   Contents of community service order

   306C.   Offender to report to an authorised officer

   306D.   Failure of offender to comply with community service order

   306E.   Commission of further offence

   307.   Warrant in case of sentence of imprisonment

   308.   Warrant for levy of fine, etc

   309.   Objections to attachment

   310.   Suspension of execution of sentence of imprisonment in default of fine

   311.   Commitment for want of distress

   312.   Commitment in lieu of distress

   313.   Payment in full after commitment

   314.   Part payment after commitment

   315.   Who may issue warrant

   316.   Limitation of imprisonment

PREVIOUSLY CONVICTED OFFENDERS

   317.   Person twice convicted may be subjected to police supervision

   318.   Requirements from persons subject to police supervision

   319.   Failure to comply with requirements under section 318

DEFECTS IN ORDER OR WARRANT

   320.   Errors and omissions in orders and warrants

PART XI
APPEALS

   321.   Appeals

   321A.   Appeals by Director of Public Prosecutions

   322.   Limitation

   323.   Procedure preliminary to appeal

   324.   Procedure for application to appeal out of time

   325.   Procedure on appeal

   326.   Notice of time and place of hearing

   327.   Powers of appellate court

   328.   Pronouncement of decision of the High Court sitting as an appellate court

   329.   Order of appellate court to be certified

   330.   Repealed

   331.   Suspension of orders on conviction

   332.   Admission to bail or suspension of sentence pending appeal

   333.   Further evidence

   334.   Appeals to be heard by one Judge unless the Chief Justice otherwise directs

   335.   Abatement of appeals

   336.   Bail in cases of appeals to Supreme Court

REVISION

   337.   Power of High Court to call for records

   338.   Powers of High Court on revision

   339.   Discretion of High Court as to hearing parties

   340.   Order to be certified to lower court

CASE STATED

   341.   Case stated by subordinate court

   342.   Recognizance to be taken and fees paid

   343.   Subordinate court may refuse case when it thinks application frivolous

   344.   Procedure on refusal of subordinate court to state case

   345.   Constitution of court hearing case stated

   346.   High Court to determine questions on case

   347.   Case may be sent back for amendment or rehearing

   348.   Powers of subordinate court after decision of High Court

   349.   Appellant may not proceed both by case stated and by appeal

   350.   Contents of case stated

   351.   High Court may enlarge time

   351A.   Interpretation

PART XII
SUPPLEMENTARY PROVISIONS

IRREGULAR PROCEEDINGS

   352.   Proceedings in wrong place

   353.   Finding or sentence when not reversible

   354.   Distress not illegal nor distrainer a trespasser for defect or want of form in proceedings

MISCELLANEOUS

   355.   Disposal of exhibits

   356.   Corporations

   357.   Prescribed fees

   358.   Prescribed forms

   359.   Rules

NON-APPLICATION OF BRITISH ACT

   360.   Non-application

      FIRST SCHEDULE

      SECOND SCHEDULE

      THIRD SCHEDULE

      FOURTH SCHEDULE

      FIFTH SCHEDULE

AN ACT

to make provision for the procedure to be followed in criminal cases

[1st April, 1934]

Act 23 of 1933,

Act 1 of 1936,

Act 23 of 1937,

Act 14 of 1938,

Act 52 of 1938,

Act 23 of 1939,

Act 28 of 1940,

Act 17 of 1942,

Act 4 of 1944,

Act 4 of 1945,

Act 17 of 1945,

Act 29 of 1945,

Act 11 of 1946,

Act 24 of 1950,

Act 30 of 1952,

Act 20 of 1953,

Act 47 of 1955,

Act 26 of 1956,

Act 50 of 1957,

Act 16 of 1959,

Act 2 of 1960,

Act 23 of 1960,

Act 5 of 1962,

Act 11 of 1963,

Act 18 of 1963,

Act 27 of 1964,

Act 57 of 1964,

Act 6 of 1965,

Act 28 of 1965,

Act 76 of 1965,

Act 18 of 1966,

Act 1 of 1967,

Act 46 of 1967,

Act 9 of 1968,

Act 54 of 1968,

Act 20 of 1969,

Act 36 of 1969,

Act 38 of 1969,

Act 40 of 1969,

Act 24 of 1970,

Act 59 of 1970,

Act 23 of 1971,

Act 6 of 1972,

Act 33 of 1972,

Act 12 of 1973,

Act 34 of 1973,

Act 32 of 1974,

Act 30 of 1976,

Act 28 of 1979,

Act 35 of 1993,

Act 13 of 1994,

Act 5 of 1997,

Act 13 of 2000,

Act 23 of 2000,

Act 9 of 2003,

Act 9 of 2005.

GN 303 of 1964,

GN 366 of 1964,

GN 470 of 1964,

GN 493 of 1964,

GN 497 of 1964.

SI 63 of 1964,

SI 152 of 1965,

SI 177 of 1968.

PART I
PRELIMINARY

1.   Short title

This Act may be cited as the Criminal Procedure Code Act.

2.   Interpretation

In this Code, unless the context otherwise requires—

“Christian marriage” means a marriage which is recognised, by the law of the place where it is contracted, as the voluntary union for life of one man and one woman to the exclusion of all others;

“cognizable offence” means an offence for which a police officer may, in accordance with the First Schedule or under any written law for the time being in force, arrest without warrant;

“complaint” means an allegation that some person known or unknown has committed or is guilty of an offence;

“Court” means the High Court or any subordinate court as defined in this Code;

“district” means the district assigned to a subordinate court as the district within which it is to exercise jurisdiction;

“husband” and “wife” mean a husband and wife of a Christian marriage;

“non-cognizable offence” means an offence for which a police officer may not arrest without warrant;

“officer in charge of a police station” includes, when the officer in charge of the police station is absent from the station-house or unable, from illness or other cause, to perform his duties, the police officer present at the station-house who is next in rank to such officer, or any other police officer so present;

“police station” means a post or place appointed by the Inspector-General of Police to be a police station and includes any local area policed from such station;

“preliminary inquiry” means an inquiry into a criminal charge held by a subordinate court with a view to the committal of the accused person for trial before the High Court;

“public prosecutor” means any person appointed under the provisions of section 86 and includes the Attorney-General, the Solicitor-General, the Director of Public Prosecutions, a State Advocate and any practitioner as defined in the Legal Practitioners Act appearing on behalf of the People in any criminal proceedings;

“Registrar” means the Registrar of the High Court and includes a Deputy Registrar and an Assistant Registrar;

“Session” has the meaning assigned to it by section 2 of the High Court Act;

“subordinate court” means a subordinate court as constituted under the Subordinate Courts Act;

“summary trial” means a trial held by a subordinate court under Part VI.

[S 2 am by Act 28 of 1940, 23 of 1960, 5 of 1962, 27 of 1964; SI 63 of 1964.]

3.   Trial of offences under Penal Code and other written laws

   (1) All offences under the Penal Code shall be inquired into, tried and otherwise dealt with accordance to the provisions hereinafter contained.

   (2) All offences under any other written law shall be inquired into, tried and otherwise dealt with according to the same provisions, subject, however, to any enactment for the time being in force regulating the manner or place of inquiring into, trying or otherwise dealing with such offences.

PART II
POWERS OF COURTS

4.   Offences under Penal Code

Subject to the other provisions of this Code, any offence under the Penal Code may be tried by the High Court.

5.   Offences under other written laws

   (1) Any offence under any written law, other than the Penal Code, may, when any court is mentioned in that behalf in such law, be tried by such court or by the High Court.

   (2) When no court is so mentioned, such offence may, subject to the other provisions of this Code, be tried by the High Court or by any subordinate court.

6.   Sentences which High Court may pass

The High Court may pass any sentence or make any order authorised by law.

7.   Powers of subordinate courts

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:

Provided that—

      (i)   a subordinate court presided over by a Senior Resident Magistrate shall not impose any sentence of imprisonment exceeding a term of nine years;

      (ii)   a subordinate court presided over by a Resident Magistrate shall not impose any sentence of imprisonment exceeding a term of seven years;

      (iii)   a subordinate court presided over by a Magistrate of the First Class shall not impose any sentence of imprisonment exceeding a term of five years;

      (iv)   a subordinate court other than a court presided over by a Senior Resident Magistrate, a Resident Magistrate or a Magistrate of the First Class, shall not impose any sentence of imprisonment exceeding a term of three years.

[S 7 am by Act 23 of 1939, 26 of 1956, 28 of 1965, 6 of 1972.]

8.   Reconciliation

In criminal cases, a subordinate court may promote reconciliation, and encourage and facilitate the settlement in an amicable way, of proceedings for assault, or for any other offence of a personal or private nature, not amounting to felony and not aggravated in degree, in terms of payment of compensation or other terms approved by such court and may, thereupon, order the proceedings to be stayed.

[S 8 am by Act 5 of 1962.]

9.   Sentences requiring confirmation

   (1) No sentence imposed by a subordinate court presided over by a Magistrate of the 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, until the record of the case or a certified copy thereof has been transmitted to and the sentence has been confirmed by the High Court.

   (2) Whenever a subordinate court of the first class (other than a court presided over by a Senior Resident Magistrate or a Resident Magistrate) imposes a fine exceeding three thousand penalty units, or imprisonment in default thereof, it shall be lawful for such court to levy the whole amount of such fine or to commit the convicted person to prison, in default of payment or distress, for the whole term of such imprisonment, without confirmation by the High Court; but such court shall immediately transmit the record of the case or a certified copy thereof to the High Court, which may, thereupon, exercise all the powers conferred upon it by sub-section (3) of section 13:

Provided always that such court may, in its discretion, in lieu of levying such fine in excess of three thousand penalty units or of committing the convicted person to prison, take security by deposit or by bond with two sureties, to be approved by the court, in such sum as it may think fit, pending any order of the High Court, for the performance of such order.

   (3) No sentence imposed by a subordinate court of the second class, exceeding one year’s imprisonment with or without hard labour, shall be carried into effect in respect of the excess, until the record of the case or a certified copy thereof has been transmitted to and the sentence has been confirmed by the High Court.

   (4) Whenever a subordinate court of the second class imposes a fine exceeding one thousand and five hundred penalty units, or imprisonment in default thereof, it shall be lawful for such court to levy the whole amount of such fine or to commit the convicted person to prison, in default of payment or distress, for the whole term of such imprisonment, without confirmation by the High Court; but such court shall immediately transmit the record of the case or a certified copy thereof to the High Court, which may, thereupon, exercise all the powers conferred upon it by sub-section (3) of section 13:

Provided always that such court may, in its discretion, of levying such fine in excess of one thousand and five hundred penalty units or of committing the convicted person to prison, take security by deposit or by bond with two sureties, to be approved by the court, in such sum as it may think fit, pending any order of the High Court, for the performance of such order.

   (5) 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 shall be levied in respect of the excess, until the record of the case or a certified copy thereof has been transmitted to and the sentence confirmed by the High Court. And no caning in excess of twelve strokes shall be administered until the record of the case or a certified copy thereof has been transmitted to and the order has been confirmed by the High Court.

   (6) Whenever a subordinate court passes sentence of death, such court shall immediately transmit the record of the case or a certified copy thereof to the High Court, which may, thereupon, exercise all the powers conferred upon it by sub-section (3) of section 13.

   (7) Any sentence passed by a subordinate court which requires confirmation by the High Court shall be deemed to have been so confirmed if on a first appeal to the Supreme Court or the High Court, as the case may be, the sentence is maintained by the appellate court.

[S 9 am by Act 23 of 1939, 30 of 1952, 26 of 1956, 28 of 1965, 23 of 1971, 6 of 1972, 13 of 1994; GN 493 of 1964.]

10.   Power of High Court to order preliminary inquiry

The High Court may, by special order, direct that in the case of any particular charge brought against any person in a subordinate court, such court shall not try such charge but shall hold a preliminary inquiry under the provisions of Part VII.

[S 10 am by Act 26 of 1956.]

11.   Cases to be tried only by High Court

   (1) The Chief Justice may, by Statutory Notice, order that any class of offence specified in such notice shall be tried by the High Court or be tried or committed to the High Court for trial by a subordinate court presided over by a Senior Resident Magistrate only.

   (2) No case of treason or murder or of any offence of a class specified in a notice issued under the provisions of sub-section (1) shall be tried by a subordinate court unless special authority has been given by the High Court for such trial.

[S 11 am by Act 26 of 1956, 16 of 1959, 28 of 1965.]

12.   Combination of sentences or orders

Any court may pass any lawful sentence or make any lawful order combining any of the sentences or orders which it is authorised by law to pass or make.

13.   Release on bail pending confirmation or other order

   (1) Whenever a subordinate court shall pass a sentence which requires confirmation, the court imposing such sentence may, in its discretion, release the person sentenced on bail, pending confirmation or such order as the confirming court may make.

   (2) If the person sentenced is so released on bail as aforesaid, the term of imprisonment shall run from the date upon which such person begins to serve his sentence after confirmation or other order of the confirming court:

Provided, however, that the person sentenced may, pending confirmation or other order, elect to serve his sentence from the date upon which he is sentenced by the subordinate court, in which case the term of imprisonment shall run from such date.

   (3) The confirming court may exercise the same powers in confirmation as are conferred upon it in revision by Part XI.

14.   …

[S 14 rep by s 2 of Act 9 of 2003.]

15.   Sentences in case of conviction for several offences at one trial

   (1) When a person is convicted at one trial of two or more distinct offences, the court may sentence him, for such offences, to the several punishments prescribed therefor which such court is competent to impose; such punishments, when consisting of imprisonment, to commence the one after the expiration of the other, in such order as the court may direct, unless the court directs that such punishments shall run concurrently.

   (2) For the purposes of confirmation, the aggregate of consecutive sentences imposed under this section, in case of convictions for several offences at one trial, shall be deemed to be a single sentence.

16.   Power of Courts to suspend sentence

   (1) Whenever a person is convicted before any court for any offence other than an offence specified in the Fifth Schedule, the court may, in its discretion, pass sentence but order the operation of the whole or any part of the sentence to be suspended for a period not exceeding three years on such conditions, relating to compensation to be made by the offender for damage or pecuniary loss, or to good conduct, or to any other matter whatsoever, as the court may specify in the order.

   (2) Where the operation of a sentence has been suspended under sub-section (1) and the offender has, during the period of the suspension, observed all the conditions specified in the order, the sentence shall not be enforced.

   (3) If the conditions of any order made under sub-section (1) are not fulfilled, the offender may, upon the order of a Magistrate or Judge, be arrested without warrant and brought before the court which suspended the operation of his sentence, and the court may direct that the sentence, or part thereof, shall be executed forthwith or, in the case of a sentence of imprisonment, after the expiration of any other sentence of imprisonment which such offender is liable to serve:

Provided that the court that suspended the operation of the sentence may, in its discretion, if it be proved to its satisfaction by the offender that he has been unable through circumstances beyond his control to perform any condition of such suspension, grant an order further suspending the operation of the sentence subject to such conditions as might have been imposed at the time of the passing of the sentence.

   (4) In the alternative, where a court is satisfied that any person convicted before it of an offence has, by reason of such conviction, failed to fulfill the conditions of an order made under sub-section (1), the court may direct that the sentence suspended by reason of the said order be either executed forthwith or, in the case of a sentence of imprisonment, after the expiration of any other sentence of imprisonment which such person is liable to serve.

   (5) For the purposes of any appeal therefrom, a direction by a court made under sub-section (3) or (4) shall be deemed to be a conviction.

[S 16 am by Act 16 of 1959, 27 of 1964, 76 of 1965, 46 of 1967.]

17.   Medical examination of accused persons

   (1) A court may, at any stage in a trial or inquiry, order that an accused person be medically examined for the purpose of ascertaining any matter which is or may be, in the opinion of the court, material to the proceedings before the court.

   (2) Where an accused person is examined on the order of a court made under sub-section (1), a document purporting to be the certificate of the medical officer who carried out the examination shall be receivable in evidence to prove the matters stated therein:

Provided that the court may summon such medical officer to give evidence orally.

[S 17 am by Act 11 of 1963.]

PART III
GENERAL PROVISIONS

ARREST, ESCAPE AND RETAKING ARREST GENERALLY

18.   Arrest, how made

   (1) In making an arrest, the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

   (2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means reasonably necessary to effect the arrest.

[S 18 am by Act 28 of 1940.]

19.   Search of place entered by person sought to be arrested

   (1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into or is within any place, the person residing in or being in charge of such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto and afford all reasonable facilities for a search therein.

   (2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful, in any case, for a person acting under a warrant, and, in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity to escape, for a police officer to enter such place and search therein, and, in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, or otherwise effect entry into such house or place, if, after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance.

20.   Power to break out of any house for purposes of liberation

Any police officer or other person authorised to make an arrest may break out of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.

21.   No unnecessary restraint

The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

22.   Search of arrested persons

Whenever a person is arrested—

      (a)   by a police officer under a warrant which does not provide for the taking of bail or under a warrant which provides for the taking of bail and the person arrested cannot furnish bail; or

      (b)   without warrant, or by a private person under a warrant, and the person arrested cannot legally be admitted to bail or is unable to furnish bail; the police officer making the arrest or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested may search such person and place in safe custody all articles, other than necessary wearing apparel, found upon him.

23.   Power of police officer to detain and search vehicles and persons in certain circumstances

Any police officer may stop, search and detain any vessel, aircraft or vehicle in or upon which there shall be reason to suspect that anything stolen or unlawfully obtained may be found and also any person who may be reasonably suspected of having in his possession or conveying in any manner anything stolen or unlawfully obtained, and may seize any such thing.

[S 23 am by Act 28 of 1940.]

24.   Mode of searching women

Whenever it is necessary to cause a woman to be searched, the search shall be made by another woman with strict regard to decency.

25.   Power to seize offensive weapons

The police officer or other person making any arrest may take from the person arrested any offensive weapons which he has about his person and shall deliver all weapons so taken to the court or officer before which or whom the officer or person making the arrest is required by law to produce the person arrested.

ARREST WITHOUT WARRANT

26.   Arrest by police officer without warrant

Any police officer may, without an order from a Magistrate and without a warrant, arrest—

      (a)   any person whom he suspects, upon reasonable grounds, of having committed a cognizable offence;

      (b)   any person who commits a breach of the peace in his presence;

      (c)   any person who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody;

      (d)   any person in whose possession anything is found which may reasonably be suspected to be stolen property, or who may reasonably be suspected of having committed an offence with reference to such thing;

      (e)   any person whom he suspects, upon reasonable grounds, of being a deserter from the Defence Force;

      (f)   any person whom he finds in any highway, yard or other place during the night, and whom he suspects, upon reasonable grounds of having committed or being about to commit a felony;

      (g)   any person whom he suspects, upon reasonable grounds, of having been concerned in any act committed at any place out of Zambia which, if committed in Zambia, would have been punishable as an offence, and for which he is, under the Extradition Act, or otherwise, liable to be apprehended and detained in Zambia;

      (h)   any person having in his possession, without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of housebreaking;

      (i)   any released convict committing a breach of any provision prescribed by section 318 or of any rule made thereunder;

      (j)   any person for whom he has reasonable cause to believe a warrant of arrest has been issued.

[S 26 am by Act 23 of 1937; SI 63 of 1964.]

27.   Arrest of vagabonds, habitual robbers, etc.

Any officer in charge of a police station may, in like manner, arrest or cause to be arrested—

      (a)   any person found taking precautions to conceal his presence within the limits of such station, under circumstances which afford reason to believe that he is taking such precautions with a view to committing a cognizable offence;

      (b)   any person, within the limits of such station, who has no ostensible means of subsistence, or who cannot give a satisfactory account of himself;

      (c)   any person who is, by repute, an habitual robber, housebreaker or thief, or an habitual receiver of stolen property, knowing it to be stolen, or who, by repute, habitually commits extortion, or, in order to commit extortion, habitually puts or attempts to put persons in fear of injury.

28.   Procedure when police officer deputes subordinate to arrest without warrant

When any officer in charge of a police station requires any officer subordinate to him to arrest without a warrant (otherwise than in such officer’s presence) any person who may lawfully be arrested without a warranty, he shall deliver to the officer required to make the arrest an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made.

29.   Refusal to give name and residence

   (1) When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on the demand of such officer, to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer, in order that his name or residence may be ascertained.

   (2) When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate, if so required:

Provided that, if such person is not resident in Zambia, the bond shall be secured by a surety or sureties resident in Zambia.

   (3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest, or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be taken before the nearest Magistrate having jurisdiction.

   (4) Any police officer may arrest without a warrant any person who in his presence has committed a non-cognizable offence, if reasonable grounds exist for believing that, except by the arrest of the person offending, he could not be found or made answerable to justice.

[S 29 am by Act 4 of 1945.]

30.   Disposal of persons arrested by police officer

A police officer making an arrest without a warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case or before an officer in charge of a police station.

31.   Arrest by private persons

   (1) Any private person may arrest any person who, in his presence, commits a cognizable offence, or whom he reasonably suspects of having committed a felony.

   (2) Persons found committing any offence involving injury to property may be arrested without a warrant by the owner of the property or his servants or persons authorised by him.

32.   Disposal of persons arrested by private person

   (1) Any private person arresting any other person without a warrant shall, without unnecessary delay; make over the person so arrested to a police officer, or, in the absence of a police officer, shall take such person to the nearest police station.

   (2) If there is reason to believe that such person comes under the provisions of section 26, a police officer shall re-arrest him.

   (3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses, on the demand of a police officer, to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 29. If there is no sufficient reason to believe that he has committed any offence, he shall be at once released.

33.   Detention of persons arrested without warrant

   (1) When any person has been taken into custody without a warrant for an offence other than an offence punishable with death, the officer in charge of the police station to which such person shall be brought may, in any case, and shall, if it does not appear practicable to bring such person before an appropriate competent court within twenty-four hours after he was so taken into custody, inquire into the case, and, unless the offence appears to the officer to be of a serious nature, release the person, on his executing a bond, with or without sureties, for a reasonable amount, to appear before a competent court at a time and place to be named in the bond: but, where any person is retained in custody, he shall be brought before a competent court as soon as practicable. Notwithstanding anything contained in this section, an officer in charge of a police station may release a person arrested on suspicion on a charge of committing any offence, when, after due police inquiry, insufficient evidence is, in his opinion, disclosed on which to proceed with the charge.

   (2) In this section, “competent court” means any court having jurisdiction to try or hold a preliminary inquiry into the offence for which the person has been taken into custody.

[S 33 am by Act 28 of 1940, 2 of 1960.]

34.   Police to report apprehensions

Officers in charge of police stations shall report to the nearest Magistrate the cases of all persons arrested without warrant within the limits of their respective stations, whether such persons have been admitted to bail or not.

35.   Offence committed in Magistrate’s presence

When any offence is committed in the presence of a Magistrate within the local limits of his jurisdiction, he may himself arrest or order any person to arrest the offender, and may, thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.

36.   Arrest by Magistrate

Any magistrate may, at any time, arrest or direct the arrest, in his presence, within the local limits of his jurisdiction, of any person for whose arrest he is competent, at the time and in the circumstances, to issue a warrant.

ESCAPE AND RETAKING

37.   Recapture of person escaping

If a person in lawful custody escapes or is rescued, the person from whose custody he escapes or is rescued may immediately pursue and arrest him in any place in Zambia.

38.   Provisions of sections 19 and 20 to apply to arrests under section 37

The provisions of sections 19 and 20 shall apply to arrests under the last preceding section, although the person making any such arrest is not acting under a warrant, and is not a police officer having authority to arrest.

39.   Duty to assist Magistrate, etc.

Every person is bound to assist a Magistrate or police officer reasonably demanding his aid—

      (a)   in the taking or preventing the escape of any other person whom such Magistrate or police officer is authorised to arrest;

      (b)   in the prevention or suppression of a breach of the peace, or in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property.

PREVENTION OF OFFENCES

SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

40.   Power of Magistrate of subordinate court of the first or second class

   (1) Whenever a Magistrate empowered to hold a subordinate court of the first or second class is informed on oath that any person is likely to commit a breach of the peace or disturb the public tranquility, or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity, the Magistrate may, in manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.

   (2) Proceedings shall not be taken under this section, unless either the person informed against, or the place where the breach of the peace or disturbance is apprehended, is within the local limits of such Magistrate’s jurisdiction.

41.   Security for good behaviour from persons disseminating seditious matters

Whenever a Magistrate empowered to hold a subordinate court of the first class is informed on oath that a person is within the limits of his jurisdiction and that such person, within or without such limits, either orally or in writing, or in any other manner, is disseminating, or attempting to disseminate, or in any wise abetting the dissemination of—

      (a)   any seditious matter, that is to say, any matter the publication of which is punishable under section 57 of the Penal Code; or

      (b)   any matter concerning a Judge which amounts to libel under the Penal Code;

such Magistrate may (in manner provided in this Code) require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for such period, not exceeding one year, as the Magistrate thinks fit to fix.

[S 41 am by Act 28 of 1940.]

42.   Powers of other Magistrates

   (1) When any Magistrate not empowered to proceed under section 40 has reason to believe that any person is likely to commit a breach of the peace or disturb the public tranquillity, or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility, and that such breach of the peace or disturbance cannot be prevented otherwise than by detaining such person in custody, such Magistrate may, after recording his reasons, issue a warrant for his arrest (if he is not already in custody or before the court), and may send him before a Magistrate empowered to deal with the case, with a copy of his reasons.

   (2) A Magistrate before whom a person is sent under this section may, in his discretion, detain such person in custody until the completion of the inquiry hereinafter prescribed.

43.   Security for good behaviour from suspected persons

Whenever a Magistrate empowered to hold a subordinate court of the first or second class is informed on oath that any person is taking precautions to conceal his presence within the local limits of such Magistrate’s jurisdiction, and that there is reason to believe that such person is taking such precautions with a view to committing any offence, such Magistrate may, in manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding one year, as the Magistrate thinks fit.

44.   Security for good behaviour from habitual offenders

Whenever a Magistrate empowered to hold a subordinate court of the first or second class is informed on oath that any person within the local limits of his jurisdiction—

      (a)   is, by habit, a robber, housebreaker or thief; or

      (b)   is, by habit, a receiver of stolen property, knowing the same to have been stolen; or

      (c)   habitually protects or harbours thieves, or aids in the concealment or disposal of stolen property; or

      (d)   habitually commits or attempts to commit, or aids or abets in the commission of, any offence punishable under Chapter XXX, XXXIV or XXXVII of the Penal Code; or

      (e)   habitually commits or attempts to commit, or aids or abets in the commission of, offences involving a breach of the peace; or

      (f)   is so desperate and dangerous as to render his being at large without security hazardous to the community;

such Magistrate may, in manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years, as the Magistrate thinks fit.

45.   Order to be made

When a Magistrate acting under section 40, 43 or 44 deems it necessary to require any person to show cause under any such section, he shall make an order in writing setting forth—

      (a)   the substance of the information received;

      (b)   the amount of the bond to be executed;

      (c)   the term for which it is to be in force; and

      (d)   the number, character and class of sureties, if any, required.

46.   Procedure in respect of person present in court

If the person in respect of whom an order under the last preceding section is made is present in court, it shall be read over to him, or, if he so desires, the substance thereof shall be explained to him.

47.   Summons or warrant in case of person not so present

If the person referred to in the last preceding section is not present in court, the Magistrate shall issue a summons requiring him to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is to bring him before the court.

Provided that, whenever it appears to such Magistrate, upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is reason to fear the commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may, at any time, issue a warrant for his arrest.

48.   Copy of order under section 45 to accompany summons or warrant

Every summons or warrant issued under the last preceding section shall be accompanied by a copy of the order made under section 45, and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with or arrested under the same.

49.   Power to dispense with personal attendance

The Magistrate may, if he sees sufficient cause, dispense with the personal attendance of any person called upon to show cause why he should not be ordered to execute a bond for keeping the peace, and may permit him to appear by an advocate.

50.   Inquiry as to truth of information

   (1) When an order under section 45 has been read or explained under section 46 to a person present in court, or when any person appears or is brought before a Magistrate in compliance with or in execution of a summons or warrant issued under section 47, the Magistrate shall proceed to inquire into the truth of the information upon which the action has been taken, and to take such further evidence as may appear necessary.

   (2) Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trials and recording evidence in trials before subordinate courts.

   (3) For the purposes of this section, the fact that a person comes within the provisions of section 44 may be proved by evidence of general repute or otherwise.

   (4) Where two or more persons have been associated together in the matter under inquiry, they may be dealt with in the same or separate inquiries, as the Magistrate thinks just.

51.   Order to give security

   (1) If, upon such inquiry, it is proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond, with or without sureties, the Magistrate shall make an order accordingly:

Provided that—

      (i)   no person shall be ordered to give security of a nature different from, or of an amount larger than, or for a period longer than, that specified in the order made under section 45;

      (ii)   the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive;

      (iii)   when the person in respect of whom the inquiry is made is a minor, the bond shall be executed only by his sureties.

   (2) Any person ordered to give security for good behaviour under this section may appeal to the High Court, and the provisions of Part XI (relating to appeals) shall apply to every such appeal.

52.   Discharge of person informed against

If, on an inquiry under section 50, it is not proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond, the Magistrate shall make an entry on the record to that effect, and, if such person is in custody only for the purposes of the inquiry, shall release him, or, if such person is not in custody, shall discharge him.

PROCEEDINGS IN ALL CASES SUBSEQUENT TO ORDER TO FURNISH SECURITY

53.   Commencement of period for which security is required

   (1) If any person in respect of whom an order requiring security is made under section 45 or 51 is, at the time such order is made, sentenced to or undergoing a sentence of imprisonment, the period for which such security is required shall commence on the expiration of such sentence.

   (2) In other cases, such period shall commence on the date of such order, unless the Magistrate, for sufficient reason, fixes a later date.

54.   Contents of bond

The bond to be executed by any such person shall bind him to keep the peace or to be of good behaviour, as the case may be, and, in the latter case, the commission or attempt to commit, or the aiding, abetting, counselling or procuring the commission of any offence punishable with imprisonment, wherever it may be committed, shall be a breach of the bond.

55.   Power to reject sureties

A Magistrate may refuse to accept any surety offered under any of the preceding sections, on the ground that, for reasons to be recorded by the Magistrate, such surety is an unfit person.

56.   Procedure on failure of person to give security

   (1) If any person ordered to give security as aforesaid does not give such security on or before the date on which the period for which such security is to be given commences, he shall, except in the case mentioned in sub-section (2), be committed to prison, or, if he is already in prison, be detained in prison until such period expires, or until, within such period, he gives the security to the court or Magistrate which or who made the order requiring it.

   (2) When such person has been ordered by a Magistrate to give security for a period exceeding one year, such Magistrate shall, if such person does not give such security as aforesaid, issue a warrant directing him to be detained in prison pending the orders of the High Court, and the proceedings shall be laid, as soon as conveniently may be, before such court.

   (3) The High Court, after examining such proceedings and requiring from the Magistrate any further information or evidence which it thinks necessary, may make such order in the case as it thinks fit.

   (4) The period, if any, for which any person is imprisoned for failure to give security shall not exceed three years.

   (5) If the security is tendered to the officer in charge of the prison, he shall forthwith refer the matter to the court or Magistrate which or who made the order, and shall await the orders of such court or Magistrate.

   (6) Imprisonment for failure to give security for keeping the peace shall be without hard labour.

   (7) Imprisonment for failure to give security for good behaviour may be with or without hard labour, as the court or Magistrate, in each case, directs.

57.   Power to release persons imprisoned for failure to give security

Whenever a Magistrate empowered to hold a subordinate court of the first or second class is of opinion that any person imprisoned for failing to give security may be released without hazard to the community, such Magistrate shall make an immediate report of the case for the orders of the High Court, and such court may, if it thinks fit, order such person to be discharged.

58.   Power of High Court to cancel bond

The High Court may, at any time, for sufficient reasons to be recorded in writing, cancel any bond for keeping the peace or for good behaviour executed under any of the preceding sections by order of any court or Magistrate.

59.   Discharge of sureties

   (1) Any surety for the peaceable conduct or good behaviour of another person may, at any time, apply to a Magistrate empowered to hold a subordinate court of the first or second class to cancel any bond executed under any of the preceding sections within the local limits of his jurisdiction.

   (2) On such application being made, the Magistrate shall issue his summons or warrant, as he thinks fit, requiring the person for whom such surety is bound to appear or to be brought before him.

   (3) When such person appears or is brought before the Magistrate, such Magistrate shall cancel the bond and shall order such person to give, for the unexpired portion of the term of such bond, fresh security of the same description as the original security. Every such order shall, for the purposes of sections 54, 55, 56 and 57, be deemed to be an order made under section 51.

60.   Forfeiture

   (1) If the conditions of any bond be not complied with, the court may endorse such bond and declare the same to be forfeited.

   (2) On any forfeiture, the court may issue its warrant of distress for the amount mentioned in such bond, or for the imprisonment of the principal and his surety or sureties for a term not exceeding six months, unless the amount be sooner paid or levied.

   (3) A warrant of distress under this section may be executed within the local limits of the jurisdiction of the court which issued it, and it shall authorise the distress and sale of any property belonging to such person and his surety or sureties without such limits, when endorsed by a Magistrate holding a subordinate court of the first or second class within the local limits of whose jurisdiction such property is found.

PREVENTIVE ACTION OF THE POLICE

61.   Police to prevent cognizable offences

Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent the commission of any cognizable offence.

62.   Information of design to commit such offences

Every police officer receiving information of a design to commit any cognizable offence shall communicate such information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of any such offence.

63.   Arrest to prevent such offences

A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot otherwise be prevented.

64.   Prevention of injury to public property

A police officer may, of his own authority, interpose to prevent any injury attempted to be committed, in his presence, to any public property, movable or immovable, or the removal of or injury to any public landmark, or buoy, or other mark used for navigation.

PART IV
PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS

PLACE OF INQUIRY OR TRIAL

65.   General authority of Courts of Zambia

Every court has authority to cause to be brought before it any person who is within the local limits of its jurisdiction, and is charged with an offence committed within Zambia, or which, according to law, may be dealt with as if it has been committed within Zambia, and to deal with the accused person according to its jurisdiction.

66.   Accused person to be sent to district where offence committed

Where a person accused of having committed an offence within Zambia has escaped or removed from the district within which the offence was committed, and is found within another district, the court within whose jurisdiction he is found shall cause him to be brought before it, and shall, unless authorised to proceed in the case, send him in custody to the court within whose jurisdiction the offence is alleged to have been committed, or require him to give security for his surrender to that court there to answer the charge and to be dealt with according to law.

67.   Removal of accused person under warrant

Where any person is to be sent in custody in pursuance of the last preceding section, a warrant shall be issued by the court within whose jurisdiction he is found, and that warrant shall be sufficient authority to any person to whom it is directed to receive and detain the person therein named, and to carry him and deliver him up to the court within whose district the offence was committed or may be tried.

68.   Mode of trial before High Court

   (1) The High Court may inquire of and try any offence subject to its jurisdiction, at any place where it has power to hold sittings.

   (2) Criminal cases in the High Court shall, subject to the provisions of sub-section (3), be tried upon information signed in accordance with the provisions of this Code.

   (3) The Chief Justice may, by Statutory Order, direct that any offences or class of offences, other than offences against sections 199, 200, 215, 216 and 219 of the Penal Code, may be tried by the High Court without a preliminary inquiry as if it were a court of summary jurisdiction.

   (4) When an order has been made under sub-section (3), the trial shall be conducted in accordance with the provisions of Part VI and the provisions of Part IX shall not apply to any such trial.

[S 68 am by Act 11 of 1946.]

69.   Ordinary place of inquiry and trial

Subject to the provisions of section 68 and to the powers of transfer conferred by sections 78 and 80, every offence shall be inquired into or tried, as the case may be, by a court within the local limits of whose jurisdiction it was committed or within the local limits of whose jurisdiction the accused was apprehended, or is in custody on a charge for the offence, or has appeared in answer to a summons lawfully issued charging him with the offence.

[S 69 am by Act 28 of 1940.]

70.   Trial at place where act done or where consequence of offence ensues

When a person is accused of the commission of any offence, by reason of anything which has been done, or omitted to be done, or of any consequence which has ensued, such offence may be inquired into or tried by a court within the local limits of whose jurisdiction any such thing has been done, or omitted to be done, or any such consequence has ensued.

71.   Trial where offence is connected with another offence

When an act or omission is an offence by reason of its relation to any other act or omission which is also an offence, or which would be an offence if the doer were capable of committing an offence, a charge of the first-mentioned offence may be inquired into or tried by a court within the local limits of whose jurisdiction either act was done.

72.   Trial where place of offence is uncertain

When—

      (a)   it is uncertain in which of several districts an offence was committed; or

      (b)   an offence is committed partly in one district and partly in another; or

      (c)   an offence is a continuing one, and continues to be committed in more districts than one; or

      (d)   an offence consists of several acts or omissions done in different districts;

such offence may be inquired into or tried by a court having jurisdiction in any of such districts.

73.   Offence near boundary of district or on or near railway

Offence near boundary of district

   (1) When an offence is committed on or near the boundary or boundaries of two or more districts, or within a distance of ten miles from any such boundary or boundaries, it may be inquired into or tried by a court having jurisdiction in any of the said districts, in the same manner as if it had been wholly committed therein.

Offence on or near railway

   (2) When an offence is committed on any person or in respect of any property on any railroad, or within a distance of ten miles from any line of railway on either side thereof, such offence may be inquired into or tried by a court having jurisdiction in any district in or through any part whereof, or within such distance from the boundaries whereof, such line of railway passes, in the same manner as if such offence had been wholly committed within such district.

74.   Offence committed on a journey

An offence committed whilst the offender is in the course of performing a journey or voyage may be inquired into or tried by a court through or into the local limits of whose jurisdiction the offender, or the person against whom, or the thing in respect of which, the offence was committed passed in the course of that journey or voyage.

75.   High Court to decide in cases of doubt

Whenever any doubt arises as to the court by which any offence should be inquired into or tried, the High Court may decide by which court the offence shall be inquired into or tried.

76.   Court to be open

The place in which any court is held, for the purpose of inquiring into or trying any offence shall, unless the contrary is expressly provided by any Act for the time being in force, be deemed an open court to which the public generally may have access, so far as the same can conveniently contain them:

Provided that the presiding Judge or Magistrate may, if he considers it necessary or expedient—

      (a)   in interlocutory proceedings; or

      (b)   in circumstances where publicity would be prejudicial to the interest of—

      (i)   justice, defence, public safety, public order or public morality; or

      (ii)   the welfare of persons under the age of eighteen years or the protection of the private lives of persons concerned in the proceedings;

order, at any stage of the inquiry into or trial of any particular case, that persons generally or any particular person other than the parties thereto or their legal representatives shall not have access to or be or remain in the room or building used by the court.

[S 76 am by Act 20 of 1953, 54 of 1968.]

TRANSFER OF CASES

77.   Transfer of case where offence committed outside jurisdiction

   (1) If, upon the hearing of any complaint, it appears that the cause of complaint arose out of the limits of the jurisdiction of the court before which such complaint has been brought, the court may, on being satisfied that it has no jurisdiction, direct the case to be transferred to the court having jurisdiction where the cause of complaint arose.

   (2) If the accused person is in custody, and the court directing such transfer thinks it expedient that such custody should be continued, or, if he is not in custody, that he should be placed in such custody, the court shall direct the offender to be taken by a police officer before the court having jurisdiction where the cause of complaint arose, and shall give a warrant for that purpose to such officer, and shall deliver to him the complaint and recognizances, if any, taken by the Court directing such transfer, to be delivered to the court before whom the accused person is to be taken; and such complaint and recognizances, if any, shall be treated, for all purposes as if they had been taken by such last-mentioned court.

   (3) If the accused person is not continued or placed in custody as aforesaid, the court shall inform him that it has directed the transfer of the case as aforesaid, and, thereupon, the provisions of sub-section (2) respecting the transmission and validity of the documents in the case shall apply.

78.   Transfer of cases between Magistrates

Any Magistrate holding a subordinate court of the first class—

      (a)   may transfer any case of which he has taken cognizance for inquiry or trial to any subordinate court empowered to inquire into or try such case within the local limits of such first class subordinate court’s jurisdiction; and

      (b)   may direct or empower any subordinate court of the second or third class within the local limits of his jurisdiction which has taken cognizance of any case, whether evidence has been taken in such case or not, to transfer it for inquiry or trial to himself or to any other specified court within the local limits of his jurisdiction, which is competent to try the accused or commit him for trial, and such court may dispose of the case accordingly.

[S 78 am by Act 16 of 1959.]

79.   Procedure when, after commencement of inquiry or trial, Magistrate finds case should be transferred to another Magistrate

   (1) If, in the course of any inquiry or trial before a Magistrate, the evidence appears to warrant a presumption that the case is one which should be tried or committed for trial by some other Magistrate, he shall stay proceedings and submit the case, with a brief report thereon, to a Magistrate holding a subordinate court of the first class and empowered to direct the transfer of the case under the last preceding section.

   (2) The provisions of this section and of section 78 shall be without prejudice to the powers conferred upon a Judge of the High Court under section 23 of the High Court Act.

[S 79 am by Act 16 of 1959.]

80.   Power of High Court to change venue

   (1) Whenever it is made to appear to the High Court—

      (a)   that a fair and impartial inquiry or trial cannot be had in any court subordinate thereto; or

      (b)   that some question of law of unusual difficulty is likely to arise; or

      (c)   that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same; or

      (d)   that an order under this section will tend to the general convenience of the parties or witnesses; or

      (e)   that such an order is expedient for the ends of justice or is required by any provision of this Code;

it may order—

      (i)   that any offence be inquired into or tried by any court not empowered under the preceding sections of this Part but, in other respects, competent to inquire into or try such offence;

      (ii)   that any particular criminal case or class of cases be transferred from a court subordinate to its authority to any other such court of equal or superior jurisdiction;

      (iii)   that an accused person be committed for trial before itself.

   (2) The High Court may act either on the report of the lower court, or on the application of a party interested, or on its own initiative.

   (3) Every application for the exercise of the power conferred by this section shall be made by motion, which shall, except when the applicant is the Director of Public Prosecutions, be supported by affidavit.

   (4) Every accused person making any such application shall give to the Director of Public Prosecutions notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application, unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application.

   (5) When an accused person makes any such application, the High Court may direct him to execute a bond, with or without sureties, conditioned that he will, if convicted, pay the costs of the prosecutor.

[S 80 am by SI 152 of 1965.]

CRIMINAL PROCEEDINGS

81.   Power of Director of Public Prosecutions to enter nolle prosequi

   (1) In any criminal case and at any stage thereof before verdict or judgment, as the case may be, the Director of Public Prosecutions may enter a nolle prosequi, either by stating in court, or by informing the court in writing, that the People intend that the proceedings shall not continue, and, thereupon, the accused shall stand discharged in respect of the charge for which the nolle prosequi is entered, and, if he has been committed to prison, shall be released, or, if he is on bail, his recognizances shall be treated as being discharged; but such discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts.

   (2) If the accused shall not be before the court when such nolle prosequi is entered, the Registrar or clerk of such court shall forthwith cause notice in writing of the entry of such nolle prosequi to be given to the keeper of the prison in which such accused may be detained, and also, if the accused person has been committed for trial, to the subordinate court by which he was so committed, and such subordinate court shall forthwith cause a similar notice in writing to be given to any witnesses bound over to prosecute and give evidence and to their sureties (if any), and also to the accused and his sureties, in case he shall have been admitted to bail.

[S 81 am by Act 28 of 1940, 5 of 1962; SI 63 of 1964, 152 of 1965.]

82.   Delegation of powers by Director of Public Prosecutions

The Director of Public Prosecutions may order in writing that all or any of the powers vested in him by the last preceding section, by section 88 and by Parts VII and VIII, may be exercised also by the Solicitor-General, the Parliamentary Draftsmen and State Advocates and the exercise of these powers by the Solicitor-General, the Parliamentary Draftsmen and State Advocates shall then operate as if they had been exercised by the Director of Public Prosecutions:

Provided that the Director of Public Prosecutions may in writing revoke any order made by him under this section.

[S 82 am by Act 47 of 1955, 50 of 1957, 23 of 1960, 27 of 1964; SI 63 of 1964.]

83.   Criminal informations by Director of Public Prosecutions

   (1) Notwithstanding anything in this Code contained, the Director of Public Prosecutions may exhibit on behalf of the People in the High Court against persons subject to the jurisdiction of the High Court, informations for all purposes for which Her Britannic Majesty’s Attorney-General for England may exhibit informations on behalf of the Crown in the High Court of Justice in England.

   (2) Such proceedings may be taken upon every such information as may lawfully be taken in the case of similar informations filed by Her Britannic Majesty’s Attorney-General for England, so far as the circumstances of the case and the practice and procedure of the High Court will admit.

   (3) The Chief Justice may, by Statutory Instrument, make rules for carrying into effect the provisions of this section.

[S 83 am by Act 2 of 1960; SI 63 of 1964.]

84.   Signature of Director of Public Prosecutions to be evidence

Where, by any written law, the sanction, fiat or written consent of the Director of Public Prosecutions is necessary for the commencement or continuance of the prosecution of any offence, a document purporting to give such sanction, fiat or consent placed before the Court by the prosecutor and purporting to be signed by the person for the time being exercising the powers and performing the duties of the Director of Public Prosecutions shall be prima facie evidence that such sanction, fiat or consent has been given.

[S 84 am by Act 50 of 1957; SI 63 of 1964.]

85.   Arrest of persons for offences requiring the consent of the Director of Public Prosecutions for commencement of prosecution

   (1) Where any written law provides that no prosecution shall be instituted against any person for an offence without the sanction, fiat or written consent of the Director of Public Prosecutions, such person may be arrested or a warrant for such arrest may be issued and executed and such person may be remanded in custody or on bail, notwithstanding that such sanction, fiat or written consent has not been first obtained, but no further proceedings shall be taken until such sanction, fiat or written consent has been obtained and produced to the court.

   (2) The provisions of sub-section (1) shall be subject to the other provisions of this Code relating to arrest, remand and the granting of bail.

[S 85 am by Act 5 of 1962; SI 152 of 1965.]

APPOINTMENT OF PUBLIC PROSECUTORS AND CONDUCT OF PROSECUTIONS

86.   Power to appoint public prosecutors

   (1) The Director of Public Prosecutions may appoint generally, or in any case, or for any specified class of cases, in any district, one or more officers to be called Public Prosecutors.

   (2) The Director of Public Prosecutions may appoint any person employed in the public service to be a Public Prosecutor for the purposes of any proceedings instituted on behalf of the People.

   (3) Every Public Prosecutor shall be subject to the express directions of the Director of Public Prosecutions.

[S 86 am by Act 28 of 1940, 16 of 1959, 23 of 1960; SI 63 of 1964, 152 of 1965.]

87.   Powers of public prosecutors

A Public Prosecutor may appear and plead without any written authority before any court in which any case of which he has charge is under inquiry, trial or appeal; and, if any private person instructs an advocate to prosecute in any such case, the Public Prosecutor may conduct the prosecution, and the advocate so instructed shall act therein under his directions.

88.   Withdrawal from prosecution in trials before subordinate courts

In any trial before a subordinate court, any Public Prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person; and upon such withdrawal—

      (a)   if it is made before the accused person is called upon to make his defence, he shall be discharged, but such discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts;

      (b)   if it is made after the accused person is called upon to make his defence, he shall be acquitted.

[S 88 am by SI 63 of 1964.]

89.   Permission to conduct prosecution

   (1) Any Magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person, but no person, other than a Public Prosecutor or other officer generally or specially authorised by the Director of Public Prosecutions in this behalf, shall be entitled to do so without permission.

   (2) Any such person or officer shall have the like power of withdrawing from the prosecution as is provided by the last preceding section, and the provisions of that section shall apply to any withdrawal by such person or officer.

   (3) Any person conducting the prosecution may do so personally or by an advocate.

[S 89 am by GN 303 of 1964; SI 63 of 1964.]

INSTITUTION OF PROCEEDINGS

MAKING OF COMPLAINT

90.   Institution of proceedings

   (1) Proceedings may be instituted either by the making of a complaint or by the bringing before a Magistrate of a person who has been arrested without warrant.

   (2) Any person who believes from a reasonable and probable cause that an offence has been committed by any person may make a complaint thereof to a Magistrate having jurisdiction.

   (3) A complaint may be made orally or in writing, but if made orally shall be reduced to writing and in either case shall be signed by the complainant.

   (4) The Magistrate, upon receiving any such complaint, shall—

      (a)   himself draw up and sign; or

      (b)   direct that a Public prosecutor or Legal Practitioner representing the complainant shall draw up and sign; or

      (c)   permit the complainant to draw up and sign;

a formal charge containing a statement of the offence with which the accused is charged, and until such charge has been drawn up and signed no summons or warrant shall issue and no further step shall be taken in the proceedings.

   (5) When an accused person who has been arrested without a warrant is brought before a Magistrate, a formal charge containing a statement of the offence with which the accused is charged shall be signed and presented to the Magistrate by the police officer preferring the charge.

   (6) When the Magistrate is of opinion that any complaint or formal charge made or presented under this section does not disclose any offence, the Magistrate shall make an order refusing to admit such complaint or formal charge and shall record his reasons for such order.

   (7) Any person aggrieved by an order made by a Magistrate under sub-section (6) may appeal to the High Court within fourteen days of the date of such order and the High Court may, if satisfied that the formal charge or complaint, in respect of which the order was made, disclose an offence, direct the Magistrate to admit the formal charge or complaint, or may dismiss the appeal.

[S 90 am by Act 28 of 1940, 5 of 1962.]

91.   Issue of summons or warrant

   (1) Where a charge has been drawn up and signed in accordance with sub-section (4) of the last preceding section, the Magistrate may, in his discretion, issue either a summons or a warrant to compel the attendance of the accused person before a court having jurisdiction to inquire into or try the offence alleged to have been committed:

Provided that a warrant shall not be issued in the first instance unless the complaint has been made upon oath before the Magistrate, either by the complainant or by a witness or witnesses.

   (2) Any summons or warrant may be issued on a Sunday.

[S 91 am by Act 28 of 1940, 5 of 1962.]

PROCESSES TO COMPEL THE APPEARANCE OF ACCUSED PERSONS

SUMMONS

92.   Form and contents of summons

   (1) Every summons issued by a Court under this Code shall be in writing, in duplicate, and signed by the presiding officer of such court or by such other officer as the Chief Justice may, from time to time, by rule, direct.

   (2) Every summons shall be directed to the person summoned, and shall require him to appear, at a time and place to be therein appointed, before a Court having jurisdiction to inquire into and deal with the complaint or charge. It shall state shortly the offence with which the person against whom it is issued is charged.

[S 92 am by Act 2 of 1960.]

93.   Service of summons

   (1) Every summons shall be served by a police officer, or by an officer of the court issuing it, or other public servant, and shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.

   (2) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.

94.   Service when person summoned cannot be found

Where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family, or with his servant residing with him; and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.

95.   Procedure when service cannot be effected as before provided

If service, in the manner provided by the two last preceding sections, cannot, by the exercise of due diligence, be effected, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides, and, thereupon, the summons shall be deemed to have been duly served.

96.   Service on company

Service of a summons on an incorporated company or other body corporate may be effected by serving it on the secretary, local manager or other principal officer of the corporation, at the registered office of such company or body corporate, or by registered letter addressed to the chief officer of the corporation in Zambia. In the latter case, service shall be deemed to have been effected when the letter would arrive in ordinary course of post.

97.   Service outside local limits of jurisdiction

When a Court desires that a summons issued by it shall be served at any place outside the local limits of its jurisdiction, it shall send such summons in duplicate to a Magistrate within the local limits of whose jurisdiction the person summoned resides or is, to be there served.

98.   Proof of service when serving officer not present

   (1) Where the officer who has served a summons is not present at the hearing of the case, and in any case where a summons issued by a court has been served outside the local limits of its jurisdiction, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons, purporting to be endorsed, in the manner hereinbefore provided, by the person to whom it was delivered or tendered or with whom it was left, shall be admissible in evidence, and the statements made therein shall be deemed to be correct, unless and until the contrary is proved.

   (2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the court.

99.   Power to dispense with personal attendance of accused

   (1) Whenever a summons is issued in respect of any offence other than a felony, a Magistrate may, if he sees reason to do so, and shall, when the offence with which the accused is charged is punishable only by fine or only by fine and/or imprisonment not exceeding three months, dispense with the personal attendance of the accused, if he pleads guilty in writing or appears by an advocate.

   (2) The Magistrate inquiring into or trying any case may, in his discretion, at any subsequent stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in manner hereinafter provided.

   (3) If a Magistrate imposes a fine on an accused person whose personal attendance has been dispensed with under this section, and such fine is not paid within the time prescribed for such payment, the Magistrate may forthwith issue a summons calling upon such accused person to show cause why he should not be committed to prison, for such term as the Magistrate may then prescribe. If such accused person does not attend upon the return of such summons, the Magistrate may forthwith issue a warrant, and commit such person to prison for such term as the Magistrate may then fix.

   (4) If, in any case in which, under this section, the attendance of an accused person is dispensed with, previous convictions are alleged against such person and are not admitted in writing or through such person’s advocate, the Magistrate may adjourn the proceedings and direct the personal attendance of the accused, and, if necessary, enforce such attendance in manner hereinafter provided.

   (5) Whenever the attendance of an accused person has been so dispensed with, and his attendance is subsequently required, the cost of any adjournment for such purpose shall be borne, in any event, by the accused.

WARRANT OF ARREST

100.   Warranty after issue of summons

Notwithstanding the issue of a summons, a warrant may be issued at any time before or after the time appointed in the summons for the appearance of the accused. But no such warrant shall be issued unless a complaint or charge has been made upon oath.

101.   Summons disobeyed

If the accused does not appear at the time and place appointed in and by the summons, and his personal attendance has not been dispensed with under section 99, the Court may issue a warrant to apprehend him and cause him to be brought before such court. But no such warrant shall be issued unless a complaint or charge has been made upon oath.

102.   Form, contents and duration of warrant of arrest

   (1) Every warrant of arrest shall be under the hand of the Judge or Magistrate issuing the same.

   (2) Every warrant shall state shortly the offence with which the person against whom it is issued is charged, and shall name or otherwise describe such person, and it shall order the person or persons to whom it is directed to apprehend the person against whom it is issued, and bring him before the court issuing the warrant or before some other court having jurisdiction in the case, to answer to the charge therein mentioned and to be further dealt with according to law.

   (3) Every such warrant shall remain in force until it is executed, or until it is cancelled by the court which issued it.

103.   Court may direct security to be taken

   (1) Any court issuing a warrant for the arrest of any person, in respect of any offence other than murder or treason, may, in its discretion, direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the court at a specified time and thereafter until otherwise directed by the court, the officer to whom the warrant is directed shall take such security and shall release such person from custody.

   (2) The endorsement shall state—

      (a)   the number of sureties;

      (b)   the amount in which they and the person for whose arrest the warrant is issued are to be respectively bound; and

      (c)   the time at which he is to attend before the court.

   (3) Whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the court.

104.   Warrants, to whom directed

   (1) A warrant of arrest may be directed to one or more police officers, or to one police officer and to all other police officers of the area within which the court has jurisdiction, or generally to all police officers of such area. But any court issuing such a warrant may, if its immediate execution is necessary, and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same.

   (2) When a warrant is directed to more officers or persons than one, it may be executed by all or by any one or more of them.

105.   Order for assistance directed to land-holder

   (1) A Magistrate empowered to hold a subordinate court of the first or second class may order any land-holder, farmer or manager of land, within the local limits of his jurisdiction, to assist in the arrest of any escaped convict, or person who has been accused of a cognizable offence and has eluded pursuit.

   (2) Such land-holder, farmer or manager shall, thereupon, comply with such order, if the person for whose arrest it was issued is in or enters on his land or farm or the land under his charge.

   (3) When such person is arrested, he shall be made over with the order to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction, unless security is taken under section 103.

   (4) No land-holder, farmer or manager of land to whom such order is directed shall be liable at the suit of the person so arrested for anything done by him under the provisions of this section.

   (5) If any land-holder, farmer or manager of land to whom such order is directed fails to comply therewith, he shall be liable, on conviction, to a fine not exceeding seven hundred and fifty penalty units or, in default of payment, to imprisonment with or without hard labour for a period not exceeding six months.

[S 105 am by Act 13 of 1994.]

106.   Execution of warrant directed to police officer

A warrant directed to any police officer may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed.

107.   Notification of substance of warrant

The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.

108.   Person arrested to be brought before court without delay

The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 103 as to security), without unnecessary delay, bring the person arrested before the court before which he is required by law to produce such person.

109.   Where warrant of arrest may be executed

A warrant of arrest may be executed at any place in Zambia.

110.   Forwarding of warrants for execution outside jurisdiction

   (1) When a warrant of arrest is to be executed outside the local limits of the jurisdiction of the court issuing the same, such court may, instead of directing such warrant to a police officer, forward the same, by post or otherwise, to any Magistrate within the local limits of whose jurisdiction it is to be executed.

   (2) The Magistrate to whom such warrant is so forwarded shall endorse his name thereon, and, if practicable, cause it to be executed in the manner hereinbefore provided within the local limits of his jurisdiction.

111.   Procedure in case of warrant directed to police officer for execution outside jurisdiction

   (1) When a warrant of arrest directed to a police officer is to be executed outside the local limits of the jurisdiction of the court issuing the same, he shall take it for endorsement to a Magistrate within the local limits of whose jurisdiction it is to be executed.

   (2) Such Magistrate shall endorse his name thereon, and such endorsement shall be sufficient authority to the police officer to whom the warrant is directed to execute the same within such limits, and the local police officer shall, if so required, assist such officer in executing such warrant.

   (3) Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the Magistrate within the local limits of whose jurisdiction the warrant is to be executed will prevent such execution, the police officer to whom it is directed may execute the same without such endorsement, in any place outside the local limits of the jurisdiction of the court which issued it.

112.   Procedure on arrest of person outside jurisdiction

   (1) When a warrant of arrest is executed outside the local limits of the jurisdiction of the court by which it was issued, the person arrested shall, unless the court which issued the warrant is within twenty miles of the place of arrest, or is nearer than the Magistrate within the local limits of whose jurisdiction the arrest was made, or unless security is taken under section 103, be taken before the Magistrate within the local limits of whose jurisdiction the arrest was made.

   (2) Such Magistrate shall, if the person arrested appears to be the person intended by the court which issued the warrant, direct his removal in custody to such court:

Provided that, if such person has been arrested for an offence other than murder or treason, and he is ready and willing to give bail to the satisfaction of such Magistrate, or if a direction has been endorsed under section 103 on the warrant, and such person is ready and willing to give the security required by such direction, the Magistrate may take such bail or shall take such security, as the case may be, and shall forward the bond to the court which issued the warrant.

   (3) Nothing in this section shall be deemed to prevent a police officer from taking security under section 103.

113.   Irregularities in warrant

Any irregularity or defect in the substance or form of a Warrant, and any variance between it and the written complaint or information, or between either and the evidence produced on the part of the prosecution at any inquiry or trial, shall not affect the validity of any proceedings at or subsequent to the hearing of the case, but, if any such variance appears to the court to be such that the accused has been thereby deceived or misled, such court may, at the request of the accused, adjourn the hearing of the case to some future date, and, in the meantime, remand the accused or admit him to bail.

MISCELLANEOUS PROVISIONS REGARDING PROCESSES

114.   Power to take bond for appearance

Where any person for whose appearance or arrest the Magistrate presiding in any court is empowered to issue a summons or warrant is present in such court, such Magistrate may require such person to execute a bond, with or without sureties, for his appearance in such court.

115.   Arrest for breach of bond for appearance

When any person who is bound by any bond taken under this Code to appear before a court does not so appear, the Magistrate presiding in such court may issue a warrant directing that such person be arrested and produced before him.

116.   Power of court to order prisoner to be brought before it

   (1) Where any person for whose appearance or arrest a court is empowered to issue a summons or warrant is confined in any prison within Zambia, the court may issue an order to the officer in charge of such prison requiring him to bring such prisoner in proper custody, at a time to be named in the order, before such court.

This section of the article is only available for our subscribers. Please click here to subscribe to a subscription plan to view this part of the article.