A legal review of the current substantive and procedural law on defilement cases in Zambia and its im
Date
2013-12-17
Authors
Mulikita, Mubita P
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Abstract
Despite the heavy penalty imposed by Act No 15 Of 2005, defilement has been on the increase. Whereas a number of studies have been done on defilement which focused on pre trail and trail process, this paper has taken an original approach which focuses on the substantive law and procedural law of defilement. Apart from a review on various literatures on the subject, a number of interviews were conducted with personal from the police, legal Aid Clinic, and research was done at the magistrates Complex. The study reviewed that there is need to re-examine the substantive law and procedural law factors that inhibit injustice in defilement cases. This could be enhanced by advocating for substantive and procedural reforms on factors that negate justice in defilement cases such as the legal pluralism emanating from the use of customary law and statute which is both recognised by the Constitution but not harmonised in the Penal Code, the procedural factors that tend to protect the accused than the victim such as strict adherence to stare decisis, corroboration, cross-examination and mistrust or legal prejudice on the evidence of a child in defilement cases.The study further revealed that there is no specific law that deals with defilement cases in Zambia except the general criminal law. This makes the trail process and environment of defilement hostile to a child as it does not take keen interest in a child as a witness such as cross examination which is inhibitive in an adversarial system or the court flaws that exist at magistrate complex in violation of section 121 Of the Juveniles on the power to clear the court due to higher numbers of court cases, and lack of the special court to deal with defilement cases. Furthermore defilement cases are subjected to corroboration making it difficult for the prosecution to prove. In such situations society has opted to use customary law which seem to award them "virginity damages" and quick to resolve the matter unlike in criminal law where a case would take too long to be disposed or only end up in an acquittal. The research contains recommendations which if implemented would not only result into justice but also protect the child against sexual predators.
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Child sexual abuse- Zambia , Children- Legal status, law- Zambia , Sex crimes , Human rights