An analysis of legislation on corporate criminalisation and criminal sanctions in Zambia
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The study investigated the current corporate criminal liability legal system in Zambia to analyse its effectiveness in serving as a deterrent instead of a conduit pipe for corporate crime. The current legislation recognises corporations as capable of committing criminal offences. However, these provisions appear to be more biased towards individual than corporate responsibility. The legislation make it easier to establish individual criminal liability than corporate criminal liability. As a result, the criminal justice players have faced numerous challenges in fighting corporate crime and deterring would be corporate offenders. The overall objective of the study was to investigate the adequacy of corporate criminal liability laws in curbing corporate crime in Zambia. The specific objectives were to assess the strengths and weaknesses of corporate criminal liability laws in Zambia; determine the extent to which corporate criminal liability laws hold the corporate entity accountable; determine the extent to which shareholder, creditors and directors of a corporate entity liable to punishment are protected in their individual rights and how the corporation is protected from individual criminals; and to highlight domestic and international best practices favourable to the effective administration of corporate criminal liability. The study used mixed methods of research encompassing doctrinal where both primary and secondary data were used; social legal where the legal concept of and legislation on corporate criminal liability was considered in the social context by looking at its implications; and qualitative methods used enabled the analysis of the data collected by transcribing it into the major themes which emerged. The study also used interviews and the data collected by this method was analysed by use of interpretative techniques. The study found that corporate criminal liability is recognised in Zambia that its recognition is based on the fiction theory of corporate personality hence the derivative models of corporate criminal liability being the identification model with traces of the vicarious liability model. It found that there is a general inadequacy of capacity building for the criminal justice system and that this coupled with the limited corporate sentencing base make the overall corporate criminal liability law less efficient in holding corporate criminals sufficiently accountable for their crimes. The study also found that the shareholders, creditors and directors are not protected under law as the primary sentence of a fine on a corporation is ultimately borne by the shareholders and creditors who have little or no control over corporate activities. It fund that where statutory provisions provide for the sentence of imprisonment in addition to the fine, the prison term is served by the director of the corporation unless he raises due diligence defence, for which the law does not provide procedure. The study concluded that the existing corporate criminal liability laws are inadequate to curb corporate crime and deter would be corporate offenders. This study recommends, among others, for the enhancement of corporate criminal liability by including corporate culture as a basis for corporate liability. It recommends the outlining of clear procedures on treatment of corporate criminals and enactment of specific offences‟ legislation targeted at the corporate form and the expansion of the corporate sentencing base to discourage recidivism and promote the deterrence purpose of punishment. Keywords: Corporate liability, corporate crime, legislation, criminal sanctions.
The University of Zambia