Last edited: November 2005
Summary and Analysis
We were unable to find any information pertaining to Article 12 of the Convention on the Rights of the Child or the African Charter on the Rights and Welfare of the Child with respect to the child’s right to be heard in child protective proceedings. Zambia is a signatory to the Convention on the Rights of the Child[2] and the African Charter on the Rights and Welfare of the Child,[3] but has only ratified the former.
Zambia does have some legislation on the protection of children’s rights in judicial proceedings, but it does not fully comply with the goals of the Convention on the Rights of the Child. The Convention has yet to be domesticated, and therefore holds no authority for application or enforcement by the Zambian courts of law. Zambia recognizes children under the age of nineteen to be minors. Any committee of group working regarding the rights of children must be approved by the Minister. When a child in need of care is brought before the court, the relevant factors for the court are home circumstances, health, age, character, and the like. Additionally a case can proceed without the presence of the child if the court decides that the child’s presence is not essential.
Furthermore, in Zambia, the legal tradition includes a dual legal system consisting of traditional law and statutory law, which further impedes implementation of the Convention on the Rights of the Child. There are seven ministries responsible for the implementation of the Convention on the Rights of the Child, and there is little communication between the ministries, leading to a lack of organization and support for children’s programs.
Related Sources of Law (In Order of Authority)
Constitution
Constitution of Zambia[4]
Part III – Protection of Fundamental Rights and Freedom of the Individual
Section 24. Protection of young persons from exploitation
(1) No young person shall be employed and shall in no case be caused or permitted to engage in any occupation or employment which would prejudice his health or education or interfere with his physical, mental or moral development:
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Provided that an Act of Parliament may provide for the employment of a young person for a wage under certain conditions.
(2) All young persons shall be protected against physical or mental ill-treatment, all forms of neglect, cruelty or exploitation.
(3) No young person shall be the subject of traffic in any form.
(4) In this Article “young person” means any person under the age of fifteen years.
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Statutes
The Juveniles Act (Chapter 53 of the Laws of Zambia)[5]
An Act to make provision for the custody and protection of juveniles in need of care; to provide for the correction of juvenile delinquents; and to provide for matters incidental to or connected with the foregoing.
Part I: Preliminary
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2. Interpretation
(1) In this Act, unless the context otherwise requires -
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“juvenile” means a person who has not attained the age of nineteen years; and includes a child and a young person;
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Part II: Protection of Juveniles
General Provisions
3. Approval of societies
(1) The managing committee or governing body of any association of persons working for the care, protection or control of juveniles may apply to the Minister for the society to be approved by him for that purpose, and the Minister may, after making such inquiries as he may think fit, approve the society for that purpose and may issue a certificate of approval accordingly.
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9. Definition of “in need of care”
(1) For the purposes of this Act, a juvenile in need of care means a person who-
(a) is a juvenile who, having no parent or guardian or a parent or guardian unfit to exercise care and guardianship or not exercising proper care and guardianship, is either falling into bad associations or is exposed to moral or physical danger or beyond control;
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10. Powers of juvenile courts in respect of juveniles in need of care
(1) Any police officer or juveniles inspector having reasonable grounds for believing that a juvenile is in need of care may bring him before a juvenile court, and it shall be the duty of a juveniles inspector to bring before a juvenile court any juvenile who appears to be in need of care unless he is satisfied that the taking of proceedings is undesirable in the interests of such juvenile, or that proceedings are about to be taken by some other person.
(2) If a juvenile court is satisfied that any person brought before the court under this section is a juvenile in need of care, the court may-
(a) order his parents or guardian to enter into recognizances to exercise proper care and guardianship; or
(b) commit him to the care of any fit person, whether a relative or not, who is willing to undertake the care of him; or
(c) without making any other order, or in addition to making an order under either of the last two foregoing paragraphs, make an order placing him for a specified period, not exceeding three years, under the supervision of a probation officer or some other person appointed for the purpose by the court; or
(d) order him to be sent to an approved school.
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Juveniles in Need of Care
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15. Proceedings in respect of juveniles in need of care
(1) Any juveniles inspector or police officer having obtained an order from a magistrate may take to a place of safety any juvenile who is about to be brought before a juvenile court as being in need of care.
(2) No juvenile may be kept in a place of safety for longer than fourteen days without a renewal of the order.
(3) Where an application is to be made to a juvenile court for an order under section ten and the juvenile in respect of whom the application is to be made has not been removed to a place of safety, a summons may be issued requiring him to attend before the court.
(4) Where under the provisions of this section a juvenile is taken to a place of safety, the person who so takes him shall forthwith send a notice to the juvenile court specifying the grounds upon which the juvenile is to be brought before the court, and shall also send the particulars to the parent or guardian of the juvenile warning him to attend at the court on the date and at the time of the hearing.
(5) Where an application is to be made to a juvenile court under section ten, the person intending to make the application shall forthwith notify a juveniles inspector for that area of the name and address of the juvenile, the day and the hour when and the nature of the grounds on which he is to be brought before the court.
(6) A juveniles inspector having received a notice under subsection (5) shall make such investigations and render available to the court such information as to the home circumstances, health, age, character, and general antecedents of the juvenile as are likely to assist the court.
Fit Persons
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31. Application for custody of juvenile
(1) Where the parent of a juvenile applies to any court for the custody of the juvenile and the court is of the opinion that the parent has abandoned or deserted the juvenile, or that he has so conducted himself that the court should refuse to enforce his right to the custody of the juvenile, the court may in its discretion refuse to award the custody of the juvenile to the parent.
(2) Where the parent of a juvenile has allowed him to be brought up by another person at that person’s expense for such length of time and under such circumstances as to satisfy the court that the parent was unmindful of his parental duties, the court shall not make an order for the delivery of the juvenile to the parent unless the parent has satisfied the court that, having regard to all the circumstances, it is more advantageous to the juvenile to make the order.
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Part V: Supplemental
Provisions in Relation to Court Proceedings in which Juveniles are Involved
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120. Children not allowed in court
No child (other than an infant in arms) shall be permitted to be present in court during the trial of any other person charged with an offence, or during any proceedings preliminary thereto, except during such time as his presence is required as a witness or otherwise for the purposes of justice; and any child present in court when under this section he is not permitted to be so shall be ordered to be removed.
124. Power to proceed with case in absence of juvenile
Where, in any proceedings with relation to any scheduled offence, the court is satisfied that the attendance before the court of any juvenile in respect of whom the offence is alleged to have been committed is not essential to the just hearing of the case, the case may be proceeded with and determined in the absence of the juvenile.
Additional Resources and Links
Zambian Parliament
http://www.parliament.gov.zm/?file=show_doc.html&id=2847&setLang=uk
The Zambian Legal Information Institute
Juta Law
Endnotes
[1] This page is also available as a .pdf Document, and Word Document.
[2] United Nations Convention on the Rights of the Child art. 12, Dec. 12, 1989, UN General Assembly Document A/RES/44/25, available at http://www.ohchr.org/english/law/crc.htm.
[3] African Charter on the Rights and Welfare of the Child, opened for signature July 11, 1990, OAU Doc. CAB/LEG/24.9/49 available at http://www.africa-union.org/.
[4] Const of Zambia. (1996), available at http://www.zamlii.ac.zm/const/1996/const91.htm.
[5] Juveniles Act, Zambia, available at http://annualreview.law.harvard.edu/population/countries/zambia/juveniles%20act.htm, available here, and also as .pdf Document, and also as Word Document.