IN THE HIGH COURT FOR ZAMBIA 2021/HP/13A/23

AT THE PRINCIPAL REGISTRY

HOLDEN AT LUSAKA
(Criminal Jurisdiction)
BETWEEN:
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.PPlNc? Ip At.

MAXWELL CHUNGU APPLICANT

AND 3Q2Q2,

THE PEOPLE RESPONDENT

Before the Hon. Mrs. Justice M.M. Bah-Matandala

On the 18th day of January, 2022.

For the State: Mrs. M. Ilakasenke - National Prosecution Authority

For the Accused: Mr. J Zimba - Messrs. Makebi Zulu Advocates

RULING

LEGISLATION REFERRED TO:

1. Constitution of Zambia Chapter 1 of the Laws of Zambia

2. The Criminal Procedure Code Act, Chapter 88 of the Laws of Laws of

Zambia.

1.0 The Applicant herein, Maxwell Chungu has taken out Summons

for admission to bail pending trial. The Application was

supported by an affidavit in support dated 29th December, 2021

and deposed to by the Applicant.

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 1.1 The Application herein was made pursuant to Section 123 (3)

of the Criminal Procedure Code Chapter 87 of the Laws of

Zambia, seeking this Court to admit the Applicant to bail

pending trial.

1.2 In the affidavit in support of this application, it was deposed by

the Applicant that, on 28th December, 2021 he was arrested and

charged with two counts of unlawful wounding and that he

believed that the same offence was bailable and bondable. He

further deposed that notwithstanding that the offence was

bailable, the Zambia Police denied him bond and he remained

in their custody at Ibex Police Station. Further that the Police

did not indicate when he should appear in Court for the said

charges.

1.3 In the Skeleton arguments filed in support of the Applicant’s

Application for bail, Counsel referred to Section 123 of the

Criminal Procedure Code Chapter 88 of the Laws of Zambia and

argued that bail was provided for in Section 123 of the Criminal

Procedure Code. It was further submitted that the normal

practice was for the Courts to grant bail to a person appearing

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 or brought before it, while the Police ordinarily would grant

bond to those arrested or detained before being brought to any

Court. It was also argued that the High Court had the power to

grant bail to a person who was not appearing before it or had

been inordinately detained. It was also submitted that the Police

had a duty to present a person before Court within twenty-four

hours after the arrest of a person.

1.4 At the hearing of the Application in question, Counsel for the

accused stated that after the Police were served with documents

for the application herein, the Police proceeded to release the

Applicant on police bond hence rendering the application before

this Court academic. However, Counsel implored this Court to

proceed in delivering a ruling as regards the breach of Section

33 of the Criminal Procedure Code Chapter 87 of the Laws of

Zambia.

1.5 The State did not file any response or arguments to this

application for the reasons that the Applicant had been released

on bond thereby rendering the application academic and also

that instructions were at the time of the hearing being awaited

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 prior to the Applicant's release. It was stated that the State

further that the State was not averse to the player by the

Applicant for the Court to proceed to render ruling on the issue

before it.

1.6 This Application hinges on Sections 123 and 33 of the

Criminal Procedure Code Chapter 88 of the Laws of

Zambia, The provisions state as follows:

123. (1) When any person is arrested or

detained, or appears before or is brought

before a subordinate court, the High Court

or Supreme Court he may, at any time while

he is in custody, or at any stage of the

proceedings before such court, be admitted

to bail upon providing a surety or sureties

sufficient, in the opinion of the police

officer concerned or court, to secure his

appearance, or be released upon his own

recognizance if such officer or court thinks

fit:

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 The proviso to the said section states

as follows:

(i) murder, treason or any other

offence carrying a possible or

mandatory capital penalty;

(it) misprision of treason or

treasonfelony; or

(Hi) aggravated robbery;

(iv) theft of motor vehicle, if such

person has previously been

convicted of theft of motor

vehicle.

shall not be granted bail by

either a Subordinate Court,

the High

Court or Supreme Court or be

released by any Police Officer.

Section 33 of the CPC states that:

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 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

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 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.

1.7 From the reading of the above provisions it is clear that 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 should inquire into the

charge and if the person is not taken before a competent Court

of Law within 24 hours, release the accused person on police

bond. And the Constitution chapter 1 of the Laws of Zambia

provides under Article 13 and in particular sub article 2,3, and

4 as follows;

2. Any person who is arrested or detained

shall be informed as soon as reasonably

practicable, in a language that he

understands, of the reasons for his

arrest or detention.

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 3. Any person who is arrested or detained—

a. for the purpose of bringing him before

a court in execution of an order of a

court; or

b, upon reasonable suspicion

of his having committed, or

being about to commit, a

criminal offence under the

law in force in Zambia;

and who is not released, shall be brought without

undue delay before a court; and if any person

arrested or detained under paragraph (b) is not tried

within a reasonable time, then, without prejudice to

any further proceedings that may be brought

against him, he shall be released either

unconditionally or upon reasonable conditions,

including in particular such conditions as are

reasonably necessary to ensure that he appears at

a later date for trial or for proceedings preliminary

to trial.

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 4. Any person who is unlawfully arrested or detained

by any other person shall be entitled to

compensation therefor from that other person.

And Article 18 in particular:

1. If any person is charged with a criminal

offence, then, unless the charge is

withdrawn, the case shall be afforded a fair

hearing within a reasonab le time by an

independent and impartial court established

by law.

2. Every person who is charged with a criminal

offence­

ci shall be presumed to be innocent

until he is proved or has pleaded

guilty;

h. shall be informed as soon as

reasonably practicable, in a

language that he understands

and in detail, of the nature of the

offence charged;

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 entreaty Law Enforcement Officers to refrain from unlawfully

punishing, humiliating and Degrading suspects during the

course of executing their mandate of enforcing the law which is

critical in the criminal justice system of our society.

2.0 I must state that the offence the Applicant is charged with is

bondable and therefore the detention beyond the prescribed

legal period is unjustifiable and a violation of his right to liberty

and the right to secure protection of the laws as stipulated

Articles 13 and 18 of the Constitution of Zambia already cited.

2.1 Leave to appeal granted.

Dated at Lusaka, this 18thday of January ,2022.

M.M. BAH-MATANDALA
HIGH COURT JUDGE

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