POLICE-PUBLIC COMPLAINTS COMMISSION ACT
Arrangement of Sections
1. Short title
THE POLICE-PUBLIC COMPLAINTS COMMISSION
3. Seal of Commission
4. Functions of Commission
5. Composition of Commission
6. Proceedings of Commission
9. Secretary and other staff
10. Experts and assessors
11. Disclosure of interest
12. Prohibition of publication or disclosure of information to unauthorised persons
13. Oath on appointment
LODGING AND HANDLING OF COMPLAINTS
15. Lodging of complaint
16. Limitation on lodging of complaint
17. Making and continuing of complaint on behalf of complainant
18. Receipt of complaint by principal officer
19. Consideration of complaint
20. Search with warrant
21. Findings of Commission
22. Register of complaints
24. Proceedings at hearings
25. Evidence and procedure
26. Hearings in relation to judicial proceedings
27. Right of appearance of interested person
28. Powers of Commission
29. Financial assistance for witness
30. Funds of Commission
31. Financial year
32. Accounts and audit
33. Annual report
34. Privileged reports
35. General offences
37. Rights, liabilities and obligations of Authority
38. Legal proceedings and investigations
39. Members of Authority
40. Staff of Authority
to provide for the membership, functions, operations and financial management of the Police-Public Complaints Commission; provide a procedure for the initiation and investigation of complaints against police actions; and provide for matters connected with, or incidental to, the foregoing.
[7th June, 2016]
Act 18 of 2016.
This Act may be cited as the Police-Public Complaints Commission Act.
In this Act, unless the context otherwise requires—
(a) a person’s nominee or employee;
(b) a person’s conjugal partner or former spouse;
(c) a firm of which a person, or the person’s nominee, is a partner or person in charge or in control of its business or affairs;
(d) a company in which a person or the person’s nominee, is a director or is in charge or in control of its business or affairs, or in which the person together with the person’s nominee, holds a controlling interest or shares amounting to more than 30 percent of the total share capital; or
(e) the trustee of a trust, where—
(i) the trust has been created by the person; or
(ii) the total value of the assets contributed by the person before or after the creation of the trust, amounts at any time, to not less than 20 percent of the total value of the assets of the trust;
“Authority” means the Police-Public Complaints Authority established under the repealed Part XA of the Zambia Police Act;
“Chairperson” means the person appointed Chairperson of the Commission under section 5;
“Commission” means the Police-Public Complaints Commission established by the Constitution;
“complaint” means an allegation of police action;
“Emoluments Commission” means the Emoluments Commission established by the Constitution;
“equivalent qualification” means a qualification that is equal in function, value, significance, level or similar in effect or function;
“higher education institution” means a higher education institution declared, established or registered as a higher education institution under the Higher Education Act, 2013;
“member” means a person appointed as a member of the Commission under section 7;
“oath” has the meaning assigned to it in the Constitution;
“police action” means—
(a) an act or omission constituting an offence by a police officer for purposes of this Act; or
(b) the infliction of a serious injury on a person by a police officer;
“police officer” means a member of the Police Service;
“Police Service” means the Zambia Police Service established by the Constitution;
“principal officer” has the meaning assigned to it in the Local Government Act;
(a) a person’s son, daughter, brother, sister, nephew, niece, parent, uncle, aunt, grandparent or cousin; and
(b) a person’s spouse or the spouse of any of the persons mentioned in paragraph (a);
“Secretary” means the person appointed Secretary of the Commission under section 9;
“serious injury” means a fracture, damage to an internal organ, impairment of bodily function, a deep cut, a deep laceration, sexual harassment or unlawful carnal knowledge;
“Vice-Chairperson” means the person appointed Vice-Chairperson of the Commission under section 5; and
“Zambia Qualifications Authority” means the Zambia Qualifications Authority established under the Zambia Qualifications Authority Act, 2011.
THE POLICE-PUBLIC COMPLAINTS COMMISSION
(1) The seal of the Commission shall be such device as may be determined by the Commission and shall be kept by the Secretary.
(2) The affixing of the seal shall be authenticated by the Chairperson or the Vice-Chairperson and the Secretary or any other person authorised in that behalf by a resolution of the Commission.
(3) A contract or instrument which, if entered into or executed by a person not being a body corporate, would not be required to be under seal may be entered into or executed without seal on behalf of the Commission by the Secretary or any other person generally or specifically authorised by the Commission in that behalf.
(4) A document purporting to be under the seal of the Commission or issued on behalf of the Commission shall be received in evidence and shall be deemed to be so executed or issued, as the case may be, without further proof, unless the contrary is proved.
(1) The functions of the Commission are as specified in the Constitution and to—
(a) investigate police action;
(b) undertake inquiries into, or audit of, any aspect of police action;
(c) ensure transparency and accountability by police officers in the handling of criminal matters, in accordance with the principles of the Constitution;
(d) take such steps and measures as are necessary for the efficient and effective handling of investigations and complaints under this Act;
(e) advise the Minister and the Police Service on the prevention and elimination of occurrence of police action;
(f) cooperate with other institutions within and outside Zambia with similar functions; and
(g) perform any other functions conferred on the Commission by or under this Act or any other written law.
(2) The Commission may, in furtherance of its functions—
(a) collect any information that it considers necessary for the performance of its functions under the Constitution and this Act;
(b) undertake consultations, hearings and inquiries for purposes of performing its functions under the Constitution and this Act; and
(c) receive written or oral statements from any person or organisation for purposes of its functions under this Act.
(1) The Commission consists of the following full-time members appointed by the President—
(a) the Chairperson;
(b) the Vice-Chairperson; and
(c) five other members.
(2) A person qualifies for appointment as the Chairperson or Vice-Chairperson if the person has held, or is qualified to hold, the office of judge of the High Court.
(3) A person qualifies for appointment as a member if that person—
(a) holds a degree, or an equivalent qualification, from a higher education institution or a foreign higher education institution whose qualifications are recognised by the Zambia Qualifications Authority; and
(b) has at least 10 years experience in—
(iv) human resource management; or
(4) A member shall hold office for a term of five years and may be reappointed for a further term of five years.
(5) A member who has twice held office is not eligible for reappointment.
(6) The office of a member becomes vacant if the member—
(c) is absent, without reasonable excuse, from three consecutive meetings of the Commission of which the member has had notice without the approval of the Commission;
(d) is adjudged bankrupt;
(e) is convicted of an offence under this Act or any other written law and sentenced to imprisonment for a period exceeding six months without the option of a fine;
(f) is removed by the President on grounds that the member has acted dishonourably, dishonestly or fraudulently; or
(g) has a mental or physical disability which makes the member incapable of performing the duties of a member.
(7) A member may resign upon giving one month’s notice to the President.
(8) A member shall, on the expiration of the period for which the member is appointed, continue to hold office until a successor is appointed, but in no case shall the further period exceed four months.
(9) The President may, whenever the office of a member becomes vacant before the expiry of the term of office, appoint another person to be a member in place of the member who vacates the office for the unexpired term of that office.
(1) Subject to the other provisions of this Act, the Commission may regulate its own procedure.
(2) The Commission shall meet for the transaction of business at least once in every three months at such places and times as the Commission may determine.
(3) A meeting of the Commission may be called by the Chairperson upon giving notice of not less than 14 days, and shall be called by the Chairperson if one third or more of the members so request, in writing, except that if the urgency of any particular matter does not permit the giving of such notice, a special meeting may be called upon giving a shorter notice.
(4) Four members shall form a quorum at a meeting of the Commission.
(5) There shall preside at a meeting of the Commission—
(a) the Chairperson;
(b) in the absence of the Chairperson, the Vice-Chairperson; and
(c) in the absence of the Chairperson and the Vice-Chairperson, such other member as the members present may elect for the purposes of that meeting.
(6) A decision of the Commission on any question shall be by a majority of the members present and voting at the meeting and in the event of an equality of votes, the person presiding at the meeting shall have a casting vote in addition to that person’s deliberative vote.
(7) Where a member is for any reason unable to attend any meeting of the Commission, the member may, in writing, nominate another person from the same organisation to attend such meeting in that member’s stead and such person shall be deemed to be a member for the purpose of that meeting.
(8) The Commission may invite a person whose presence is in its opinion desirable, to attend and to participate in the deliberations of the meeting of the Commission, but that person shall have no vote.
(9) The validity of any proceedings, acts or decisions of the Commission shall not be affected by any vacancy in the membership of the Commission or by any defect in the appointment of any member or by reason that any person not entitled to do so took part in the proceedings.
(10) The Commission shall cause minutes to be kept of the proceedings of every meeting of the Commission and every meeting of any committee of the Commission.
(1) The Commission may, for the purpose of performing its functions under this Act, establish such committees as it considers necessary and delegate to any of those committees such of its functions as it considers fit.
(2) The Commission may appoint as members of a committee, persons who are or are not members, except that at least one member shall be a member of a committee.
(3) A person serving as a member of a committee shall hold office for such period as the Commission may determine.
(4) Subject to any specific or general direction of the Commission, a committee may regulate its own procedure.
A member of the Commission or a committee of the Commission shall be paid such allowances as the Emoluments Commission may determine.
(1) The Commission may, on such terms and conditions as it may determine, appoint the Secretary of the Commission and other staff of the Commission as are necessary for purposes of this Act.
(2) The Secretary shall—
(a) be the chief executive officer of the Commission;
(b) be responsible for the day-to-day administration and management of the Commission;
(c) be an ex-officio member of the Commission; and
(d) perform the functions conferred upon the Secretary by, or under, this Act.
The Commission may, on such terms and conditions as it may determine, appoint suitably qualified persons as experts and assessors to assist the Commission in the performance of its functions under this Act.
(1) A person who is present at a meeting of the Commission or any committee at which any matter is the subject of consideration, and in which matter that person or that person’s relative or associate is directly or indirectly interested in a private capacity shall, as soon as is practicable after the commencement of the meeting, declare such interest and shall not, unless the Commission or the Committee otherwise directs, take part in any consideration or discussion of, or vote on any question relating to that matter.
(2) A disclosure of interest made under sub-section (1) shall be recorded in the minutes of the meeting at which it is made.
(3) A person who contravenes sub-section (1) commits an offence and is liable, upon conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a term not exceeding two years, or to both.
(1) A person shall not, without the consent, in writing, given by or on behalf of the Commission, publish or disclose to an unauthorised person, otherwise than in the course of duties of that person, the contents of a document, communication or information whatsoever, which relates to or which has come to the knowledge of that person in the course of that person’s duties under this Act.
(2) A person who contravenes sub-section (1) commits an offence and is liable, upon conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a term not exceeding two years, or to both.
(3) A person who, having any information which to the knowledge of that person has been published or disclosed in contravention of sub-section (1), unlawfully publishes or communicates the information to another person, commits an offence and is liable, upon conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a term not exceeding two years, or to both.
(1) A member of the Commission shall, on appointment, take an oath in accordance with the Official Oaths Act.
(2) The Secretary and staff of the Commission shall, on appointment, take an oath in accordance with the Official Oaths Act.
An action or other proceeding shall not lie or be instituted against a member of the Commission, a member of a committee of the Commission or a member of staff of the Commission for or in respect of an act or thing done or omitted to be done in good faith in the exercise or performance of any of the powers, functions or duties conferred under this Act.
LODGING AND HANDLING OF COMPLAINTS
(1) A person who has a complaint may lodge the complaint with the Commission.
(2) A complaint shall be lodged with the Secretary or a principal officer of the local authority of the area where the incident giving rise to the complaint occurred.
(3) A complaint may be made orally or in writing and addressed to the Secretary.
(4) A complaint shall—
(a) bear the name, age and physical or postal address of the person making the complaint;
(b) contain a detailed statement of the facts of the incident complained of or circumstances giving rise to the complaint; and
(c) be signed or bear the thumb-print of the person making the complaint.
(5) Where a complaint is made orally, the recipient of the complaint shall reduce it to writing.
(1) A complaint shall be entertained under this Act if it is made to the Commission not later than one year from the day on which the person making the complaint first had notice of the matter alleged in the complaint.
(2) The Commission may conduct an investigation pursuant to a complaint not made within the period prescribed in sub-section (1) if it considers that there are special circumstances which make it proper to do so.
Where a person—
(a) makes a complaint under this Act and dies;
(b) makes a complaint and for any reason is unable to act for oneself after making the complaint; or
(c) could have made a complaint but died before doing so or is for any reason unable to act for oneself; the complaint may be made or continued by the person’s personal representative, a member of the person’s family or other person suitable to represent that person.
(1) A principal officer shall, within 14 days of receipt of a complaint, submit the complaint to the Secretary.
(2) The Secretary shall, within 21 days of receipt of a complaint, lay the complaint before the Commission and send a copy of the acknowledgement of receipt to the person who made the complaint.
(1) The Commission shall, upon receipt of a complaint under section 15, examine the police action which is the subject of the complaint and decide whether or not an investigation in relation to the complaint is warranted.
(2) The Commission may investigate a matter under this Act on receipt of a complaint or on its own initiative.
(3) The Commission may, in deciding whether to investigate, or continue or discontinue an investigation of, any police action, consider—
(a) the seriousness of the action, conduct or involvement to which the complaint relates;
(b) whether or not the complaint is frivolous or vexatious;
(c) whether or not the action, conduct or involvement to which the complaint relates is or has been the subject of an investigation or other action by any other appropriate authority under any other written law; and
(d) whether or not, in all the circumstances, the carrying out of an investigation for the purpose of this Act in relation to the complaint will disclose the commission or likelihood of the commission of an offence by a police officer.
(4) The Commission shall, where it determines that an investigation into a complaint is warranted, decide whether it shall carry out the investigation or whether the complaint should be referred to another appropriate authority for investigation or action.
(5) The Commission may, for purposes of performing its functions under this section—
(a) make such preliminary inquiry as it considers necessary; and
(b) consult any other appropriate authority.
(6) The Commission may refer an offence that comes to its notice in the course of an investigation under sub-section (2) to another appropriate investigation authority or agency.
(7) A person who, in bad faith, makes a frivolous or vexatious complaint to the Commission commits an offence and is liable, upon conviction, to a fine not exceeding seven hundred thousand penalty units or to imprisonment for a period not exceeding seven years, or to both.
(8) The Commission shall, where it decides to refer a matter under sub-section (4) or (6), or to discontinue a matter under sub-section (3), immediately inform, in writing, the person who made the complaint of the decision taken and the reason for that decision.
(1) The Secretary or an officer of the Commission may, in the performance of their duties, apply for a warrant to a judge or magistrate.
(2) A judge or magistrate to whom an application for a warrant is made under sub-section (1) may issue the warrant where—
(a) there are reasonable grounds to believe that—
(i) a person has failed to produce the documents required for purposes of this Act;
(ii) a person has failed to answer any questions asked for purposes of an investigation or that the answer given to any question is false or misleading in a material particular or incomplete;
(iii) it is not practicable to serve a notice on a person by reason of the fact that the person cannot be located or is absent from Zambia, or that the service of a notice might prejudice an investigation; or
(b) there are reasonable grounds to believe that any document or other thing relevant to an investigation under this Act is placed, deposited or concealed in the premises to which the warrant relates.
(3) A warrant issued under sub-section (2) shall confer on the Secretary or an officer of the Commission power to—
(a) access all the books, records, returns, reports and other documents relevant to an investigation;
(b) enter and search, at any time, the premises of any public or private body or any vessel, boat, aircraft or other conveyance, where the Secretary or officer has reasonable ground to believe that any property or thing relevant to an investigation has been placed, deposited or concealed therein;
(c) search for and remove any document or other thing that may be relevant to an investigation;
(d) where necessary, take copies of any document or extracts from documents that the person executing the warrant believes on reasonable grounds may be relevant to an investigation; and
(e) where necessary, to require any person to reproduce, or to assist to reproduce, in usable form, any information recorded or stored in any form.
(1) The Commission shall, upon completion of its investigation of a police action, prepare a report and submit its findings and recommendations to—
(a) the Zambia Police Service Commission for action, as the case may require;
(b) the Director of Public Prosecutions, where it finds that an offence has been committed by a police officer;
(c) the Inspector-General, for disciplinary action or other administrative action against the police officer; or
(d) any other relevant body or authority, as the case may require.
(2) The report of the Commission shall be sent to the Permanent Secretary of the Ministry responsible for Home Affairs for information.
(3) The Commission shall inform the complainant, in writing, of the decision of the Commission in relation to the complaint.
(4) An authority referred to in sub-section (1) shall, within 30 days from the date of receipt of the recommendation of the Commission under sub-section (1), make a report to the Commission on the action taken by that authority.
(5) An Authority which, without reasonable excuse, fails to comply with sub-section (1) and (4), commits an offence and is liable, upon conviction, to a fine not exceeding three hundred thousand penalty units.
The Secretary shall keep and maintain a register of complaints in the prescribed form.
(1) The Commission may hold hearings for the purpose of conducting an investigation.
(2) The Commission may hold its hearings in public or in private, or partly in private as it considers appropriate.
(1) The Commission shall hold its hearings at such places and times as the Chairperson or, in the absence of the Chairperson, the Vice-Chairperson may determine.
(2) The Chairperson shall preside over the hearings of the Commission and, in the absence of the Chairperson, the Vice-Chairperson shall preside.
(3) The Commission shall, when hearing a matter, be duly constituted if it consists of three members, which number shall include the Chairperson or Vice-Chairperson.
(4) The determination of a matter before the Commission shall be according to the opinion of the majority of the members considering the matter, except that—
(a) in the event of an equality of votes, the person presiding at the hearing shall have a casting vote in addition to a deliberative vote; and
(b) where, in any matter before the Commission the issue to be resolved is on a point of law, the decision of the person presiding at the hearing shall prevail.
(5) A person appearing before the Commission may appear in person or through a legal practitioner at the person’s own expense.
(6) Sections 10 and 11 apply to hearings with the necessary changes.
(1) When conducting a hearing the Commission is not bound by the rules or practice of evidence and may inform itself on any matter in such manner as it considers appropriate.
(2) The Commission shall conduct hearings with as little formality and technicality as is possible.
(3) The Commission may conduct hearings with as little emphasis on an adversarial approach as is possible and wherever possible, written submissions may be presented.
Where the subject matter of a complaint or an investigation is the subject matter of judicial proceedings, the Commission shall not commence or continue an investigation pending the final outcome of those proceedings.
Where a person satisfies the Commission that the person has a substantial or direct interest in the subject matter of a hearing, the Commission may authorise the person to appear at the hearing or a specified part of the hearing.
(1) The Commission shall investigate a complaint referred to it under this Act or any other written law.
(2) The Commission may, by notice, in writing, require a police officer being investigated or any other person whom the Commission has reason to believe may have information or documents relevant to an investigation to—
(a) attend before the Commission and produce the information, document or record as may be specified in the notice;
(b) answer questions with respect to a police action being investigated by the Commission;
(c) disclose information within that person’s knowledge relevant to an investigation by the Commission; or
(d) produce for inspection any documents which are specified in the notice.
(3) A person summoned under sub-section (2) shall be examined under oath and the oath shall be administered by the Chairperson.
(1) Subject to sub-section (2), a witness who appears before the Commission may be paid such reasonable expenses as may be determined by the Commission.
(2) The Commission may pay such reasonable expenses to a witness if it is satisfied that this is appropriate, having regard to—
(a) the prospect of hardship to the witness if assistance is declined; and
(b) any other relevant matter.
(1) The funds of the Commission shall consist of such monies as may—
(a) be appropriated to the Commission by Parliament;
(b) be paid to the Commission by way of grants or donations; or
(c) vest in or accrue to the Commission.
(2) The Commission may, subject to the approval of the Minister—
(a) accept monies by way of grants or donations from any source within or outside Zambia; and
(b) raise by way of loans or otherwise, such monies as it may require for the discharge of its functions.
(3) There shall be paid from the funds of the Commission—
(a) the emoluments of the members and staff of the Commission;
(b) such travelling and other allowances for the members, the members of a committee or staff of Commission when engaged on the business of the Commission, at such rates as the Emoluments Commission may approve; and
(c) any other expenses incurred by the Commission in the performance of its functions under this Act.
The financial year of the Commission shall be a period of 12 months ending on 31st December in each year.
(1) The Commission shall cause to be kept proper books of accounts and other records relating to its accounts.
(2) The accounts of the Commission shall be audited annually by the Auditor-General or an auditor appointed by the Auditor-General.
(3) The Auditor-General’s fees shall be paid by the Commission.
(1) As soon as practicable, but not later than 90 days after the end of the financial year, the Commission shall submit to the Minister a report concerning its activities during the financial year.
(2) The report referred to in sub-section (1) shall include information on the financial affairs of the Commission and there shall be appended to the report—
(a) an audited balance sheet;
(b) an audited statement of income and expenditure; and
(c) such other information as the President may require.
(3) The Minister responsible for finance shall cause to be prepared an annual statement of the income and expenditure of the Commission to be laid before the National Assembly.
A report, statement or other communication or record of a meeting, hearing, inquiry or proceeding of the Commission relating to the performance of its functions or a report, statement or other communication or record made by a member for the purposes of the Commission in the course of duty, and an application form, report or other communication dispatched to the Commission in connection with the performance of its functions, and in the possession of the Commission, is privileged and shall not be produced or compelled in any legal proceeding unless the Chairperson so directs, in writing, or a court so orders.
A person who—
(a) knowingly makes, or causes to be made, to the Commission, false testimony or false report in any material particular on an offence or matter under investigation;
(b) knowingly misleads the Commission or any other officer of the Commission by giving any false information or statement or making a false allegation;
(c) obstructs, assaults, insults, hinders or delays an officer of the Commission in the lawful exercise of the powers conferred on the officer under this Act;
(d) refuses or fails, without reasonable cause, to give the Commission on request, any document or information required for purposes of this Act;
(e) unlawfully influences a decision of the Commission or coerces the Commission to make a decision in favour of that person or another person;
(f) fails to comply with a lawful summon, order or directive of the Commission or an officer of the Commission under this Act; or
(g) destroys anything or prevents the seizure of any property or document or securing of the property or documents,
commits an offence and is liable, upon conviction, to a fine not exceeding two hundred thousand penalty units or imprisonment for a period not exceeding two years, or to both.
The Commission may, by statutory instrument, make regulations for the better carrying out of the provisions of this Act.
(1) On or after the commencement of this Act, there shall be transferred to, vest in and subsists against the Commission by virtue of this Act and without further assurance, all assets, rights, liabilities and obligations which immediately before that date were assets, rights, liabilities and obligations of the Authority.
(2) Subject to sub-section (1), every deed, bond and agreement, other than an agreement for personnel service, to which the Authority was a party immediately before the commencement of this Act whether or not of such a nature that rights, liabilities and obligations could be assigned shall, unless its subject matter or terms make it impossible that it should have effect as modified, as provided under this sub-section, have effect as if—
(a) the Commission had been party to it;
(b) for any reference to the Authority there was substituted, with respect to anything falling to be done on or after the commencement of this Act, a reference to the Commission; and
(c) for any references to any officer of the Authority, not being a party to it and beneficially interested, there were substituted, as respects anything falling to be done on or after the commencement of this Act, a reference to such officer of the Commission as it shall designate.
(3) Where under this Act, any assets, rights, liabilities and obligations of the Authority are deemed to be transferred to the Commission in respect of which transfer a written law provides for registration, the Commission shall make an application, in writing, to the appropriate registration authority for registration of the transfer.
(4) The registration authority, referred to in sub-section (3), shall make such entries in the appropriate register as shall give effect to the transfer and, where applicable, issue to the transferor concerned a certificate of title in respect of the property or make necessary amendments to the register and shall endorse the deeds relating to the title, right or obligation concerned and no registration fees or other duties shall be payable in respect of the transaction.
(1) Any investigations and other legal proceedings instituted or commenced under the Zambia Police Act and pending immediately before the commencement of this Act by or against the Authority, may be continued by or against the Commission.
(2) The property, assets, rights, liabilities and obligations of the Authority existing immediately before the commencement of this Act shall vest in and subsist against the Commission, together with the rights, liabilities and obligations arising out of any contract or otherwise, as if this Act had not come into force.
Subject to the other provisions of this Act, a person who, immediately before the commencement of this Act, held office as a member of the Authority shall continue to hold office as a member of the Commission until the expiry of the term.
(1) A person who, before the commencement of this Act, was an employee of the Authority shall be transferred to the service of the Commission as an employee of the Commission as if employed under this Act.
(2) The service of the persons referred to in sub-paragraph (1) shall be treated as continuous service.
(3) Nothing in this Act affects the rights and liabilities of any person employed or appointed by the Authority before the commencement of this Act.