Due Process and Human Rights in Zambia: Upholding Justice, Protecting Human Rights and Strengthening the Rule of Law

INTRODUCTION

Imagine being arrested without being informed of the reason, detained for months without appearing before a court or losing your livelihood because a public authority made decision without giving you an opportunity to be heard. Such experiences are not merely administrative errors they are violations of one of the most fundamental principles of due process.

According to Black’s Law Dictionary the word ‘Due’ means “Just; proper; regular; lawful; sufficient” [1] therefore, due process is a lawful process that entails that the state applies all its legal rules and principles pertaining to a person’s case and ensure that all the legal rights owed to such a person are respected and protected not forgetting that it is fundamental of every democratic society governed by the rule of law, it ensures that government power is subject to legal procedures are fair, transparent and impartial.

In Zambia, due process is not only a constitutional entitlement but also a practical guarantee that protects individuals against arbitrary state action and safeguards fundamental human rights.

Despite Zambia’s robust Constitutional frame work and its commitment to International human rights instruments, the realization of due process remains a work in progress. Persistent challenges include judicial delays, prolonged pre-trial detention, inadequate legal aid, limited access to justice in rural areas or communities and also if there is limited resources it can impede the effective protection of human rights. Therefore, this legal blog will discuss the historical and philosophical sources of due process, procedures or key principles, examines the legal and constitutional framework of due process in Zambia, analyses its relationship with human rights, explore some significant judicial decisions in order to the implementation of due process, thus, protecting individuals to ensure fairness in the Zambian justice system and lastly, modern challenges affecting and a critical commentary.

HISTORICAL PHILOSOPHICAL SOURCES OF DUE-PROCCESS

The Magna Carta, which is Latin for The Great Charter, was a list of demands and expectations forced on the evil King John of England in 1215. King John was so evil, he heavily taxed his people, arbitrarily took their possessions and threw them in prison for slightest reason. By sealing of Magna Carta, King John was agreed to follow the laws of the Land. It gave the people a mechanism to limit the power of the King and assert their rights. The Magna Carta established the rule of law and the idea that all citizens, including those in power, should be fairly and equally ruled by the law. It began the tradition of respecting the law, limiting government power, providing access to justice and the protection of human rights. [2] This can be seen in clause 39 and 40 of the Magna Carta:

39 “No free man shall be seized or imprisoned, or stripped of his rights or possessions or outlawed or exiled or deprived of standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land”, And clause 40 stipulates;"To no one will we sell, to no one will we refuse or delay, right to justice”. [3]

These two clauses of the Magna Carta clearly show how due process was established to reinforce the rights and freedoms of individuals. The true power and legacy of the Magna Carta and its effects on later human rights documents, like in Article 6 to Article 11 of the Universal Declaration of Human Rights (UDHR), Article 6 to Article 14 of both the International Convention on Civil and Political Rights (ICCPR) and the International Convention on Economic, Social and Cultural Rights (ICESCR).

Article 9 of the ICCPR aligns itself with the aforementioned clauses of the Magna Carta which provides for due process:“Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time to release”. [4]

PROCEDURAL AND SUBSTANTIVE DUE PROCESS

Due process is made up of two processes namely; Procedural and Substantive due-process,Procedural due process deals with the way information is gathered and the way a decision is fairly made while substantive due process deals with the purpose and content of laws which can be constitutional or other legal frameworks in order to limit the powers of government and protect individual’s rights. Members of all the branches of government must use fair procedures of methods when carrying out their responsibilities. The principles of due process are; Notice, Opportunity for a fair trial hearing, Opportunity to present evidence and an Opportunity to appeal.

Opportunity for fair trial hearing: This emanates from a Latin maxim “Audi alteram partem” which means to hear the other side, this is when defendant is given an opportunity to be heard fairly during trial and within a reasonable time, additionally not only within a reasonable time, the other Latin maxim “Nemo judex in causa sua” meaning no one should be tried or judged in his own cause, therefore, it must be within a reasonable time by an independent and impartial court.

Opportunity to present evidence: This when the defendant or accused is given a chance to present their evidence pertaining to the charge or case he is answering and cannot be compelled to give evidence at trial.

Opportunity to appeal: This happens when any party aggrieved between the litigants is given a chance to re-litigate the matter for any determination by the Court depending on the grounds he or she asserts.

CRITICAL ANALYSIS
Legal Issues

The following are the legal issues that arise in consideration of the topic:

1. Whether or not the Zambian legal framework provides for due process as an essential safeguard in protection of fundamental Human Rights?

2. Whether or not the legal framework governing due process in Zambia guarantees protection against arbitrary arrest or detention, unfair trial (not being noticed of the offense, no opportunity present evidence and no opportunity to appeal)?

3. Whether or not there some case laws or judicial decisions that shown the enforcement and implementation of due process, thus, protecting individuals to ensure fairness in the Zambian justice system?

Analysis

With regards to the first legal issue, having understood what due process is, it’s processes and principles considering that Zambia is a signatory to the Magna Carta and other international instruments such as the UDHR, ICCPR, ICESCR, therefore, in the Zambian justice system, due process and its principles are provided for under Part III of the Constitution specifically under Article 18 and Article 28 of the Constitution of Zambia (Amendment) Act No. 2 of 2026, Chapter 1 of the laws of Zambia. Article 18 provides for the substantive due process by having the heading saying; “Provisions to Secure Protection of Law” while Article 28 provides for procedural due- process by having the heading saying: “Enforcement of Protective Provisions”.

Therefore, indeed the Constitution of Zambia provides for due process as an essential safeguard in protecting fundamental Human Rights. As seen in John Sangwa v. Sunday Bwalya Nkonde where the Supreme Court emphasized and reaffirmed that the Constitution provides for the fair trial and judgement within a reasonable time and that it criticized the respondent for delay in judgement delivery for it violated judicial principles.[5]

Beyond the Constitution, the following Acts or statutes reinforce due process by regulating arrest, detention, rights of the accused persons and bail eligibility. The Acts include:

1. The Criminal Procedure Code Act. [6]

This governs the bail procedures and pre-trial detention procedures when dealing with criminal offences, including: how an arrest is made as provided under Section 18 of the same Act, Section 21 goes further to say, “The person arrested shall not be subjected to more than is necessary to prevent escape”. Section 19 provides for searches of place entered by a person sought to be arrested in prescribed conditions and Section 123 to 127 of the Principal as read with Section 3 of the newly Amendment Act No. 3 of 2026 which provides eligibility, conditions and procedures for granting bail. Therefore, all these sections re-enforce the principle against arbitrary arrest and detention of due process.

2. The Penal Code Act. [7]

The Penal Code Act defines offences and prescribes penalties, it reinforces due process through the application of the principle of legality emanating from Latin maxim “Nullum crimen nulla poena sine lege” meaning there is no crime and punishment without the law meaning a person can be criminally liable if the offence and punishment is defined and prescribed by the law. It also provides for statutory defenses from Section 7 to 20 of the Penal Code Act, this helps in due process in that the accused can have the ability provide their defence in order to be guaranteed a fair hearing.

3. The Human Rights Act. [8]

This empowers the Human Rights Commission to lawfully investigate human rights violations and recommend remedies where rights have been infringed to ensure that due process is attained.

4. The Legal Aid Act. [9]

The Act empowers the Legal Aid Board and that it provides for the granting of legal aid in civil and criminal matters and causes to persons whose means are inadequate to enable them to engage practioners to represent them and to provide matters connected with or incidental to the foregoing. Section 3 of the Legal Aid act provides for the scope of legal aid and Section 5 provides for the Right of audience of legal aid assistants, this is to ensure that the accused persons have an opportunity to be heard so as due process is attained.

Responding to the second legal issue, regarding arbitrary; Article 18 (2) (a) of the Constitution of Zambia stipulates that; every accused person shall be presumed to be innocent until he is proved or has pleaded guilty, this means no person shall be arbitrary arrested or detained without a substantiated pronouncement or judgement of the court of competent jurisdiction.

Secondly, regarding an opportunity for a fair trial hearing, pursuant to Article 18 (1) of the Constitution of Zambia which provides that; "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 reasonable time by an independent and impartial court established by law”. [10]

This means defendant is given an opportunity to be heard fairly during trial and within a reasonable time by an independent and impartial court, this works hand in hand with the principle “Audi alteram partem”, not only within a reasonable time, the other Latin maxim “Nemo judex in causa sua” meaning no one should be tried or judged in his own cause, therefore, it must be within a reasonable time by an independent and impartial court.

Thirdly, right to be noticed, Article 18 (2) (b) of the Constitution of Zambia provides for the accused or defendant to be informed of the charge in a language he understands and in detail. in addition, clause (7) of the same Article provides for the accused to produce evidence before the Court. Lastly, an opportunity to appeal, Article 28 (2) (b) stipulates; “Any person aggrieved by any determination of the High Court under this Article may appeal therefrom to the Supreme Court” Meaning any person regardless of being the claimant/plaintiff or accused/respondent who is not satisfied with the judgement rendered by the High Court is given an opportunity to appeal. We can therefore say, the Constitution of Zambia guarantees protection against arbitrary arrest or detention, unfair trial (not being noticed of the offense, no opportunity present evidence and no opportunity to appeal).

In the light of the foregoing, the following are the judicial decisions that illustrate the implementation of due process.

To start with, the case of Attorney General v Roy Clarke [11] where the full bench of the Supreme Court reaffirmed that the exercise of executive power must comply with the principles due process, fairness, reasonableness and the rule of law, it went further holding that even where public authorities are granted discretionary powers by statute, those powers cannot be exercised arbitrarily or disproportionately. This decision underscores that individuals are entitled to fair and lawful treatment whenever the state takes action affecting their rights or interests, this to the case strengthens due process by reinforcing judicial oversight, protecting individuals from arbitrary that even when the state is undertaking its discretion in deporting issues there is need to hear from the other.

Secondly, the case of Attorney General v Million Juma [12] is significant because it emphasizes that the essence of due process is to ensure that a person deprived of liberty understands the reasons for their detention as provided under Part III, Article 18 (2) (b) of the Constitution of Zambia. The Supreme Court held that although the Constitution required the grounds of detention to be proved in writing in a language the detainee understood, this was a directory rather than a mandatory. Since the grounds had the purpose of the Constitutional safeguard had been achieved. This decision highlights that due process is concerned with substantive fairness and effective communication, ensuring that individuals are informed of the reasons for the state action against them so they can exercise their legal rights including challenging the lawfulness of their detention.

In addition, the case of Attorney General v Mwiinde, underscores that due process requires courts to determine cases based on properly presented and admissible evidence including medical reports where injuries are in issue. Medical evidence assists the court in establishing the extent of harm, in this case Martha Mwiinde was given an opportunity to present evidence and she produced medical evidence and expenses she used to seek medical, the court therefore, awarded her aggravated, compensatory damages and special damages for her expenses. [13]

Lastly, the significance of Continental Restaurant & Casino Limited v Arida Mercy Chulu in relation to due process is that it reaffirmed the principle decisions of the court must be based on credible and proper legal procedure. The Supreme Court held that damages should only be awarded where sufficient evidence supported by sufficient evidence and that exemplary damages must be specifically pleaded before they can be granted. It further underscores that parties who are dissatisfied with the decision of the lower court have the opportunity to appeal to a higher court there by ensuring that judicial errors can be reviewed and corrected as provide under Article 28 (2) (b) which stipulates; “Any person aggrieved by any determination of the High Court under this Article may appeal therefrom to the Supreme Court”

In this case the appellant was not satisfied with the judgment of the lower court and later appealed to the Supreme Court, fortunately, the appealed was allowed and damages were reduced to K2 million. [14]

Possible Modern Challenges Affecting Due Process

Recent developments to test the effectiveness of due process in Zambia, the developments include:

 Increasing reliance on digital evidence requires courts to balance technological advancement with fair trial rights.

 Section 62 of the Cyber Security Act No. 3 of 2025 provides that evidence obtained by unlawful interception is not admissible in criminal proceedings while the case of Liswaniso v The People [16], the Supreme Court held that; Evidence illegally obtained if relevant is admissible on the ground that such evidence is a fact regardless of whether or not it violates a provision in the Constitution or some other law, therefore, this has raised concerns over the procedural safeguards of due process.

 Congestion in prisons contribute to prolonged pre-trial detention in that they do not absolutely follow the 48hours to appear before the Courts of law, the newly Amendment of the Criminal Procedure Code making certain sexual offenses stipulated under Section 3 non-bailable will also affect the implementation of due process due to congestion created in prisons.

The aforementioned issues show that due process must continually evolve to respond to changing legal and technological environment while preserving and protecting human rights.

For further understanding, we can use some real-life illustrations, considering a young entrepreneur whose business license was revoked without prior notice or an opportunity to be heard or respond. Although the authority may possess legal powers to regulate businesses, revoking the license without observing procedural fairness violates the principle of ‘Audi alteram partem’. Similarly, imagine an accused person who spends several months or years awaiting trial because of adjournments, even if acquitted, the prolonged delay may have caused irreparable damage to his employment contract, family life, mental and reputation, such a situation demonstrates that justice delayed can result to justice denied.

CRITICAL COMMENTARY

Though due process is often described as the cornerstone of justice, yet constitutional guarantees alone are insufficient. The true measure of due process lies in its practicality, accessibility and effectiveness. Zambia has made commendable progress in strengthening governance and judicial oversight, nevertheless, persistent systemic challenges continue to undermine the realization of human rights. Judicial reforms, increased investment in the legal aid, digital case management systems, alternative dispute resolution mechanisms and also enhanced public legal education conducted by LEGAL SCHOLARS GUILD ZAMBIA and also INTELLECTUAL OASIS’s Wednesday presentations are essential to bridge the gap between the constitutional provision and daily life activities. Ultimately, protecting due process is not solely the responsibility of judges and lawyers, it therefore, requires accountable public institutions (e.g Zambia Police, ACC), informed citizens and unwavering commitment to the rule of law.

CONCLUSION

Due process ensures there is fairness in the justice system by limiting for three branches of government in-line with the constitution, procedures for judges to follow, ensuring the law is publicly promulgated, equally enforced, consistent with the constitutionally guaranteed individual rights to promote the rule of law. Zambia not only protects rights but also reinforces public confidence in justice, basing the legal blog on the 4th and 5th maxims of equity, “Equity is equality” and “Equity follows the law”, meaning that the court tries to treat everyone equal by complementing and supporting the existing laws rather than contradicting them to ensure fairness and justice exist through due process.

[1] Black’s Law Dictionary (page 400) [2nd Ed. 1910]

[2] https://www.ruleoflaw.org.au/magna carta-and-human-rights/

[3] Clause 39 and 40 of the Magna Carta 1215

[4] International Covenant on Civil and Political Rights (ICCPR) of 1996

[5] John Sangwa v Sunday Bwalya Nkonde (Appeal No. 2 of 2021)

[6] The Criminal Procedure Code, Chapter 88 of the Laws of Zambia.

[7] The Penal Code Act, Chapter 87 of the Laws of Zambia.

[8] The Human Rights Act No. 4 of 2024.

[9] The Legal Aid Act, Chapter 34 of the Laws of Zambia.

[10] Article 18 (1) of the Constitution of Zambia (Amendment) Act No. 2 of 2016, Chapter 1 of the Laws of Zambia

[11] Attorney General v Roy Clarke [2008] Z.R 38 Vol. 1 (S.C)

[12] Attorney General v Million Juma [1984] Z.R 1 (S.C)

[13] Attorney General v Mwiinde [1987] J5 (S.C.Z)

[14] Continental Restaurant & Casino Limited v Arida Mercy Chulu (Appeal NO. 77/99 of 2000)

[16] Liswaniso v The People [1976] Z.R. 277 (S.C)