Can restorative justice be an alternative form of justice to retributive justice in the criminal justice system in Zambia? A critical analysis of Section 8 of the Criminal Procedure Code Chapter 88 of the laws of Zambia

Abstract

In view of the growing prison population and the government’s inadequate budgetary funding to the Prisons Service, various options have been explored to find solutions to the problem. The study focuses specifically at the failure by most Magistrates to effectively operationalize Section 8 of the Criminal Procedure Code of Chapter 88 of the Laws of Zambia. The failure comes in the realization that the law under Section 8 of the CPC is a misdemeanor which allows for victim offender reconciliation to avoid incarceration and consider alternative sentencing options like community sentence, suspended sentence and compensation. Furthermore, although Restorative Justice seems to be a new concept in Zambia, it has been identified worldwide as a new form of effective justice system that promotes reconciliation as opposed to Retributive Justice that increases crimes of revenge. Currently, the United Nations Basic Principles on the use of Restorative Justice are not binding on member countries. This means that any country can adopt these rules if it so wishes. This infringes on the rights of the victim who has decided to reconcile because this is not supported by any compelling law or international instrument. The writer studied samples of women (and some men) who have been victims of this law. Although several methodologies were employed, the women’s law approach which highlights various dynamics in the law that adversely affects women was instrumental. Data collected for the study include a review of the law, policy and literature on the subject and oral evidence obtained from interviews with respondents and key informants within the Criminal Justice System and a Non-Governmental Organization working with the Zambia Prisons Service on Care and Counselling (PRISCCA) of prisoners. In essence, the study finds that: (1). Lack of effective implementation of Section 8 of the CPC by the Magistrates has defeated the spirit of the objective of this law (2). Excessive reliance on custodial sentencing as opposed to other sentencing options has contributed to high prison population and women are the most affected because they are perceived to commit minor offences. Therefore, the writer’s suggested solutions to this problem include policy and law reform that should incorporate principles of Restorative Justice in the Criminal Justice System on all minor offences in Zambia. This requires political will on the part of the government to successfully implement this.