Directed Legal Reseach

NATIONAL INSTITUTE OF PUBLIC ADMINISTRATION
AN ANALYSIS OF SEXUAL VIOLENCE IN ZAMBIA: A CASE OF DEFILEMENT
MUTINTA SULUMESI
(LLB)
28027335
A research proposal submitted in partial fulfilment of the requirements for the Bachelor of Laws degree
(Legum Baccalaureus)
DECLARATION
This Directed research is my original work and has not been presented for a Degree in any other Institution.
Signature: ___________________ Date: ______________________
Name: MUTINTA SILUMESI Examination #: 28027335

CERTIFICATE OF APPROVAL
by
MUTINTA SILUMESI
This Directed research has been submitted for review with my approval as a Research supervisor:
Signature:…………………………… Date:………………...…………………
Name: …………………………….. Division/Department: Legal

DEDICATION
I wish to Dedicate this Dissertation Paper to you my children. My dearest sons ………………. and
daughters ……………… I am thanking you again for your patience whenever I was busy with this
work. Am saying to you, “this is a step I have set for you.” It is my prayer that you emulate my efforts
and achieve more than I have. My children, life without education and hard work is a struggle and
unbearable.
ACKNOWLEDGMENTS
First and foremost I thank God for the gift of life without which I could not have seen this work to
completion. I would like to express my gratitude to my supervisor Mr……………………… on his
commitment and encouragement that kept pushing me to ensure that I embark on this project
assignment.
I also want to thank my family for their unfailing support, more especially my dearest husband. To
my dear husband …………………. I appreciate your understanding, support and endurance
through-out the period of my research for this dissertation.

ABSTRACT
Defilement of female children is prevalent all over Zambia. Statistics show that due to
widespread concern, the number of reported cases has increased over the years. However, the
increased reporting has not translated into increased numbers of conviction of perpetrators of
defilement. Previous research on the issue of defilement indicates that the problem is partially
attributable to the difficulty of discharging the burden of proof under the stringent laws
applicable in such prosecutions. This dissertation is therefore a socio-legal investigation based
on child rights concepts and their application in the courts of law. By employing a qualitative
methodology and drawing on data from both desk research and field work, the study provides
an enlightening review of the psychology of child witnesses and how its exclusion in the
treatment of child witnesses results in a devaluing of their testimony due to the legal process
during trial. Having highlighted the difficulties the child witness encounters during trial and
the challenge faced by the courts, the dissertation then discusses the child witness with a view
to understanding the child‟s ability to recall an event and communicate that information.
Therefore, it is shown that with ageappropriate questions and when required to freely recall or
communicate an event, children are good and credible witnesses.
The dissertation makes a number of important findings including showing the imbalance in
the rights of child victims of defilement vis-à-vis the rights of alleged perpetrators. It thereby
challenges the constitutionality of section 122 of the Juveniles Act which provides that a child
must either testify on oath and be subjected to vigorous cross examination by an experienced
lawyer or by the perpetrator as the case may be or be, denied an opportunity to speak. It
highlights the inconsistencies in the children‟s testimonies that come about as a result of the
vigorous cross examination and the effects of the said inconsistencies on the decision of the
court and credibility assessment of the witness. It further highlights the difficulties that courts
face in trying to not only obtain cogent evidence from the child victim but to also have that
evidence corroborated to levels that will satisfy the requirements of the criminal justice
system. The dissertation concludes by recommending the adoption of more scientific based
sources of evidence such as DNA testing, as well as the repeal of section 122 of the Juveniles
Act.
ABBREVIATIONS AND LIST OF ACRONYMS
AIDS Acquired Immune Deficiency Syndrome

ARRS Arrest Reception and Referral Services
AU African Union
BEIJING RULES United Nations Standard Minimum Rules for Administration of
Juvenile Justice
CESCR Economic, Social and Cultural Rights
CJF Child Justice Forum
CRC Convention on the Rights of the Child
DFID Department for International Development
DNA Deoxyribonucleicacid
HIV Human Immuno-deficiency Virus
ICCPR International Convention on Civil and Political Rights
JDLs United Nations Rules for the Protection of Juveniles Deprived of
their Liberty
OAU Organisation of African Unity
RIYADH GUIDELINES United Nations Guidelines for the Prevention of Juvenile
Delinquency
SVA Statement Validity Analysis
UDHR Universal Declaration of Human Rights
UNICEF United Nations Children‟s Fund
VSU Victim Support Unit
WHO World Health Organisation
YWCA Young Women Christian Association
ZLDC Zambia Law Development Commission
ZPD Zone of Proximal Development
ZP Zambia Police Service
TABLE OF STATUTES AND INTERNATIONAL INSTRUMENTS
DOMESTIC LEGISLATION
The Affiliation and Maintenance of Children Act, Chapter 64 of the Laws of Zambia
The Constitution of Zambia, Chapter 1 of the Laws of Zambia
The Criminal Procedure Code, Chapter 88 of the Laws of Zambia
The Juveniles Act, Chapter 53 of the Laws of Zambia
The Intestate and Succession of Estates Act, Chapter 59 of the Laws of Zambia
The Penal Code, Chapter 87 of the Laws of Zambia
The Constitution of Zambia (Amendment) Act No. 2 of 2016
Penal Code (Amendment) Act No. 15 of 2005
The Penal Code (Amendment) Act No. 2 of 2011
The Juveniles (Amendment) Act No. 3 of 2011
INTERNATIONAL INSTRUMENTS
African Charter on Human and Peoples‟ Rights (ACHPR) Adopted in Nairobi June 27, 1981,
entered into force 21 October, 1986 – Regional Instrument
African Charter on the Rights and Welfare of the Child Convention on the Rights of the Child
(CRC) Adopted and opened for signature, ratification and accession by General Assembly
Resolution 44/25 of 20 November 1989, entered into force 2 September, 1990, in accordance with
Article 49
International Convention on Civil and Political Rights (ICCPR) Adopted and opened for signature,
ratification and Accession by General Assembly Resolution 2200A (XXI) of 16 December 1966,
entered into force 23 March 1976, in accordance with Article 49
Universal Declaration of Human Rights (UDHR) Adopted by General Assembly Resolution 217A
(III) of 10 December 1948
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules)
Adopted by General Assembly Resolution 40/33 of 29 November, 1985, 96th plenarymeeting
TABLE OF CASES
Akatama Wamunyima v The People SCZ Appeal No. 583/2013

Charity Mulenga v The People SZC Appeal No. 41/2007
Chrispin Mungaila v The People S.C.Z. Appeal No. 385/2013
Eddie Christopher Musonda v Lawrence Zimba SCZ Appeal No. 41/2012
Emmanuel Phiri v The People (1978) Z.R. 79
Emmanuel Phiri and Others v The People (1982) Z.R. 77
Papadimitropoulos v R (1957) 98 CLR 249
R v Chinjamba (1949) 5 N.R.L.R. 384
R v J (1966) 1 SA 88 (SR)
Shawaza Fawaz and Prosper Chelelwa v The People (1995) S.J
Sibande v The People (1975) Z.R. 101
Sipali Chibozu and Chobu v The People (1981) Z.R. 28
Steven Makayo v The People SCZ Appeal No. 548/2013
Teddy Shikabita v The People SCZ Appeal No. 543/2013
Tembo v The People (1966) Z.R. 126
1
CHAPTER ONE
1.1.`BACKGROUND
Children are the building blocks of any nation, therefore the development of future generations
squarely lies on them and as such it is important to take good care of them. However, their survival,
development and protection hangs in balance as more and more adult males have taken to defiling
them at an alarming rate. This, inadvertently raises the question of how seriously developed our child
protection mechanisms are in Zambia. Child protection may be seen as a set of usually government
run services that are designed to protect children and young people who are under age. This
includes deliberate efforts to encourage family stability. Child protection as a term may also refer to
prevention and responding to violence, exploitation and abuse against children. This may also include
commercial sexual exploitation, trafficking, child labour and any harmful traditional practices such as
female genital mutilation and child marriage. These violations of children‟s right to protection take
place in every community and are massive, under-recognised, under-reported barriers to child survival
and development, in addition to being human rights violations. Children subjected to abuse such as
rape and defilement are at risk of death, poor physical and mental health, HIV and AIDS infection,
educational problems, homelessness, vagrancy and poor parenting skills laterin life.
In order to effectively build a protective environment for children that may help to prevent and
respond to violence, abuse and exploitation, certain measures have to be put in perspective. These
include the strengthening of government commitment and capacity to fulfill children‟s rights to
protection. Once there is strong government commitment and capacity to fulfill the rights of the child,
then child protection would almost certainly be guaranteed. Secondly, there is also need to ensure the
promotion and establishment of adequate legislation by government aimed at addressing harmful
attitudes, customs and practices which currently pose a huge challenge to the administration of child
protection. An improvement in general communication by way of encouraging open discussion of
child protection issues that includes the media and civil society organisations has to be encouraged.
Furthermore, the development of children‟s life skills, knowledge and participation must be broadened
to give them individual capacities that they require for their survival.
Previous successive governments have put in place adequate laws such as the penal code and various
policies to protect the welfare of children in Zambia like the National Child Policy (NCP) of 2006
whose main objective is to spell out in detail some of the strategies that were arrived at by government
and stakeholders after extensive consultations on how to improve the general welfare of the child.
The vision of the 2006 National Child Policy is to provide a long-term guidance and a framework for
the implementation of child survival, development and protection interventions through a well
coordinated and multi sectoral approach in order to improve the quality of life of every child in
Zambian (NCP, 2006: 21). Despite all these pieces of legislation, child protection efforts in Zambia
still remain hopeless and insignificant as more and more children become sexually abused and defiled.
As others have argued before, there are many schools of thought that have sprung up to try and
explain the real causes of child sexual abuse and defilement. Studies and research have been
conducted before on the subject, but it appears, we are now much further away from finding the
solutions than before as more and more cases of child defilement keep being reported each day.
Ministry of Community Development and Social Services (2006: 42) has argued that due to
decreased investments in social services such as health and education, children are now forced to go
on the street in search of money and food for their survival. It is while they are on the streets that
children get exposed to all sorts of evils such as sexual, substance and alcohol abuse. They are
forced by their fellow peers to indulge into sex. At times they are even raped by older members of
society as well as their peers.
The argument of this researcher was that the above is a one sided view which appears to only look at
children who are defiled and abused as they take to the streets for various reasons that prompt them
there, but also a thought has to be given to the four months old babies, the two years olds and others
who are defiled right at home by their own fathers, uncles, brothers and other close keens. It is a firm
belief of this author that there must be something else other than the children being found on the street
which causes defilers to perpetuate this act. It could be that the communication strategies or the
messages being disseminated are not effective enough. It was the intention of this author to explore this
possibility.
1.2. Problem Statement
Harsh penalties or sentences have been imposed upon all convicted child defilers which range from a
minimum of 14 years to the maximum of life sentences. The problem is that despite these harsh
sentences, more and more children continue to be reported as having been defiled. This implies that the
environment in which the children are growing up is no longer safe. This makes the children
particularly, the girl-children to be living in very difficult circumstances consequently impacting
negatively on their development. The other source of concern is that so many sensitisation campaigns
against child defilement have been conducted. However, it appears that these are not yielding positive
results as evidenced by the marked increase in the number of reported defilement cases since 2000.
This may be attributed to ineffective communication strategies being used by the Department of Child
Development to sensitise the general public against this vice. It may also imply that the messages
being disseminated are not effective enough and that they could be targeted at wrong persons.
Defilement is a specific violation of the child‟s right to be protected from sexual exploitation. To
protect this right, the law creates the offence of defilement under the Penal Code. 6 According to the
Penal Code, defilement is committed when sexual intercourse takes place with a child below the age of
16 years. In upholding children‟s rights, the court has a mandate to ensure that perpetrators of
defilement are incarcerated. To do so, the court has to apply the laws and procedures as provided in our
statute books. However, the court‟s ability to perform this functions is hampered by the inadequacy of
the law with regard to the following: Firstly, the law does not allow reception of unsworn testimony
and forces a very young child to give sworn testimony. The child faces challenges in testifying due to
incapacity to give coherent testimony to the court.
Secondly, the law does not appear to balance the rights of both victims and offenders in such cases
with more protection being provided to the latter. Thirdly, the offence is not only proven by the
victim‟s testimony but also by corroborative evidence. Fourthly, the law provides for a subjective test –
it provides a defence to the perpetrator arising from his perception of the victim‟s age. Fifthly, the law
does not provide a specific procedural and interpretational guide tobe adopted by courts when handling
defilement cases and/or victims. As a result of all these limitations, there are many acquittals in the
courts. Although the problems are interrelated, the focus of this research is on the law, the court and
the child as a witness. The law is not alive to the child‟s mental, psychological and language
development. There is a gap between law and reality due to the failure to problematise the issue of
child witnesses which is brought out by psycho-social approaches to the issue; hence prompting more
useful interpretations of the law by the courts. This research is intended to fill this gap.
1.3. General Objectives of the Research
The main objective of the research is to investigate how courts are handling the evidence of child
victims in defilement cases in their mandate to protect the girl child from being defiled.
1.4. The Specific Objectives are:
 To analyse the law on child witness testimony in cases of defilement in Zambia;

 To analyse how Zambian courts are handling child witness‟ testimony in defilement cases; and
 To analyse child witness testimony in defilement cases supported by psycho-social perspective
on child development.
1.5. Justification of the Study
The research seeks to highlight the shortcomings in the law on defilement and the challenges a child
witness in a defilement case encounters as well as the challenges of the court in its duty of justice
dispensation. It also seeks to highlight the failures of the Zambian legal system in upholding the rights
of the girl child victim. The recommendations made would assist the legal fraternity and government
to put in place laws and procedures that will enable courts to fulfil their role of enforcing human
rights for children in defilement cases. Further, this study can be used for academic purposes and as a
bench mark in assessing the progression of the law on defilement in Zambia.
1.6. Research Questions
 In what ways does the law on defilement fall short of providing an effective framework for child
witness testimony in defilement cases?
 What specific challenges do the courts face in convicting suspected perpetrators ofdefilement?
 How can the child rights perspective equip the courts to better handle the testimony of thechild
witness?
 What psycho-social perspectives of child development and scientific measures can enhance the content
and application of the law to better protect girl children from defilement?
1.7. Methodology
The research design comprises both qualitative and quantitative research methodologies. This method
compensated weaknesses in each one of them and took advantage of their strengths. For instance, in
case of relying on information from key informants (qualitative), and once the researcher feels that
the results are biased; the quantifiable results (quantitative) would be used. The questionnaires will be
used to get numerical and statistical data from the respondents in Lusaka as well as from the Ministry
of Gender and Child Development members of staff. These methods will help to bring out detailed
information and analysis on the issue of child defilement and its perceived causes and effects on the
children which might not be captured through questionnaires.
1.8. Quantitative Survey
The researcher will use questionnaires to collect information from respondents and officials from the
Ministry of Gender and Child Development (MGCD). The use of questionnaires will help in obtaining
numerical and statistical data about the extent of the child defilement problem in Lusaka District.
These data were useful in measuring the respondents‟ attitudes, beliefs, opinions and behaviours
towards the issue of child defilement. For this purpose, both open ended and closed questions were
w i l l b e administered.
1.9. Purposive Sampling
Purposive sampling will be used to collect data from the Ministry of Gender and Child Development
staff and their key stakeholders because the population of the institution is very small marked by the
presence of few officers at the head office.
1.10. Data Analysis
The data analysis will done using the Statistical Package for Social Sciences (SPSS). Whereas the data
interpretation and analysis was done by the use of frequency tables, pie and bar charts.
1.11. Limitation to the study
The researcher plans to interview some of the prisoners who had been convicted for child defilement
so that he could get an insight of what went on in their mind. It would be very useful to hear their
views so that speculations on what really led them to defile children would finally end. However, this
will depend with the authorities in charge of prisons as to whether there will be rigorous procedures
before one could be allowed to interview the prisoners.
1.12. Literature Review
A number of articles have been written on children‟s rights at international level, regional level and
domestic level. In a book chapter titled „Developing Rights of the Girl Child in International
Law‟regarding the rights of a girl child and her position in international law, Cohen states that a child
is not to be thought of as “pre-human. This would not be in keeping with evolving international child
rights norms which assert that the child is not to be a “pre-human” being but rather that childhood is
simply part of every human being‟s continuum of development.
In the book, Cohen examines the history of international recognition of the rights of the girl child as
being linked to the developments recognising human rights in general including the notion that the
child as a human being can also be a holder of rights. This however was a new perspective regarding
children. Before this new perspective, „the young child was a sort of pet, a little monkey without
shame, to entertain people ... The general rule of that time must have been: “a child can do nothing and
therefore is nothing. Cohen also looked at the Declaration of Geneva. The Declaration perpetuated the
prevailing view at the time of the child as object, not person.1
The Declaration of Geneva was eventually followed by the Convention on the Rights of the Child
(CRC) passed by the United Nations General Assembly. Cohen observed that the CRC gives legally
binding recognition to the child‟s human dignity by also recognising the child‟s rights of individual
personality including such rights as the right to be heard. The CRC protects the child from
discrimination as well as ensuring the child‟s survival and development and the child‟s best interest.
It protects the child from neglect and abuse, from economic and sexual exploitation, from trafficking
and drug abuse and provides for foster care and adoption. Cohen‟s views are that children regardless of
jurisdiction are like their adult counterparts, holders of human rights which require protection by State
machinery. Therefore, to be able to protect the rights of children, States need to formulate laws and
procedures that will ensure the protection of children‟s rights possible.
In a dissertation by Wilhelmsson, human rights were defined as universal legal guarantees protecting
individuals and groups against actions which interfere with fundamental freedoms and human dignity.
Some of the most important characteristics of human rights are that they are guaranteed by
international standards, legally protected, focus on the dignity of the human being, oblige States and
State actors, cannot be waived or taken away, are interdependent and interrelated, and universal.
According to Wilhelmsson, all children and adolescents should have the means and the opportunity
to develop to their full potential. Wilhelmsson states that life, survival, maximum development,
access to health and access to health services are not just basic needs of children and adolescents but
are also fundamental human rights. However, the protection and fulfilment of these fundamental
rights depend on the realisation of other rights such as the right to non-discrimination; education and
access to appropriate information; privacy and confidentiality; protection from all forms of violence;
rest, leisure and play; an adequate standard of living; freedom from all forms of exploitation and
participation, including the right to be heard.
Regarding defilement of the girl child, Wilhelmsson states that non-consensual sex has medical
consequences such as injuries on the sexual organs, which can lead to a greater risk acquiring an STI or
even HIV. And if the sexual intercourse should lead to a pregnancy for a girl means either giving
birth to a baby or have an illegal abortion, which both can be life threatening for the young girl. In
1
Myers, J.E.B. Child Witness: Law and Practice. United States: John Wiley and Sons, 1987.
the final analysis non-consensual sex usually is a very traumatic experience for the girl and can do
great harm to her physical health and sexual function.2
Wilhelmsson also highlights psychosocial consequences for the girl when she is defiled. One of the
most important reasons the girls do not tell anyone about the defilement is because she is afraid to
be stigmatised. If the information comes out, she can unfortunately be suffering the consequences for
the rest of her life. Other pupils at the school can torture her for what she has been through and if she
gets pregnant, in most cases, she drops out of school or she might even be excluded from school.
Many families try to solve this problem by letting their daughter change school, but sometimes the
rumour reaches the new school before she gets there herself. There can be problems with getting
married if the girl is not a virgin, which can make the parents to force their daughter into marriage with
the man who defiled her. After being defiled the lust and the passion for sexual intercourse can be
ruined and sexual dysfunction is a common issue for defiled girls. The work by Wilhelmsson is
distinguishable from this dissertation in that Wilhelmsson looks at human rights in general as well as
the physical, social and emotional effects of defilement on the girl child. This dissertation looks at
defilement as a human rights violation and interventions put in place to curb the vice.
The Report by Save the Children (hereinafter referred to as the Report) is mainly an analysis to gain a
comprehensive understanding based on available data of the situation of children in Zambia, it focused
on non-fulfilment and violation of children‟s rights as formulated in the CRC. Among the forms of
child abuse identified in the Report, is the issue of child sexual abuse. In the Report interviews were
conducted with people working on child sexual abuses such as Young Women Christian
Association (YWCA) and the Victim Support Unit (VSU) confirmed that the majority of sexual abuse
cases concern girls. Girls, particularly orphans, are more likely to be taken in by relatives than boys.
In this environment girls are vulnerable to sexual abuseand incest.
The Report shows that an alarming and apparently increasing number of sexual abuses against children
come from members of their own families, for example, abuse by uncles, stepfathers, cousins and
brothers. However, these abuses are often hidden by the family. Orphans in particular, who are cared
for by relatives, are aware of their dependency and fear the loss of support or rejection if they reveal
that they are abused. Girls who try to tell other family members about incest or defilement are
often silenced and told not to bring shame on the family. Thus, shame and stigma are also serious
2
constraints to reporting sexual abuse. The Report recognises that one of the key problems in this area is
the failure of the criminal justice system todeal appropriately with complaints of child sexual abuse.
In his work, Herring does not discuss defilement as envisaged in the Zambian law. Herring‟s work is
however relevant to this dissertation considering that the focus of this dissertation is sexual assault
against the girl child as a form of human rights violation. In other ways of defining defilement,
Kulusika describes it as „a deliberate, criminal and sexual assault violative of the victims‟ integrity who
is under 16 years of age, thereby depriving her of her chastity, in cases involving virgins or otherwise
self -esteem, and inflicting serious physical and psychological injuries on her.‟3 Carnal Knowledge is
defined by the Court in the case of Papadimitropoulos v R4 as the physical act of penetration which
is the entry of the penis into the vagina and the slightest degree is enough and where the penetration is
per vaginam the hymen need not be broken. In her Obligatory Essay, Sithole addresses the issue of
corroboration in defilement cases and states that corroboration is one of the key common law doctrines
that govern the rules ofevidence. She describes corroboration as independent evidence to show that not
only did the offence occur but that it was committed by the accused and she cited the case of
Emmanuel Phiri v The People.5 She states that the above case stresses the need for corroboration and
that a medical report alone is not sufficient to amount to corroboration in that the doctor‟s medical
report only proves occurrence of defilement but not the identity of the offender. The requirement for
corroboration was espoused in the case of Tembo v The People6 wherein the court stated that caution
should be exercised in trying all charges involving sexual offences where the only evidence against the
accused is the uncorroborated testimony of the complainant.
Despite corroboration being a requirement, Sithole notes that in Zambia there is currently no DNA
testing of the offender. Moreover, there is no statutory provision to compel the offender to undergo
DNA test for the purpose of linking him/her to the crime.28 With regard to evidence required in a
defilement case, Sithole observes that defilement cases by their very nature involve few witnesses, the
child victim being the key witness. Therefore, the conviction does to a certain extent depend on the
veracity of the evidence to be provided by the child witness.7 With regard to the Zambian court system
there has been work done in that regard except it was in relation to Gender Bias in the Zambian courts
after observing that there are more men than women on the bench.36 The report on Gender Bias in the
3
Kulusika, E.S. Text Cases and Materials in Criminal Law. Lusaka: University of Zambia Press,2006.
4
(1957) 98 CLR 249
5
(1982) Z.R. 77
6
(1966) Z.R. 126
7
Zambian courts (hereinafter called the Report) states that gender biasness in the court system or
institutions as observed today derives its roots from the moment society started differentiating roles
between women and men. Such roles were defined according to societal beliefs and customs, which
were usages or practices of society which became compulsory by adoption and acquiescence, and by
long and unvarying habits. Discrimination on the basis of gender comes in different forms such as
cumbersome court procedures, content and effect of the law, and the manner in which these laws are
interpreted. In the Zambian court system the application of customary law to suit modern times has
worsened the situation. On the whole, gender biasness in the court system increases with the
decreasing hierarchy of the court structure.
In yet another book by Fatuma, the issue of sexual harassment is addressed. The author explains that
sexual harassment is a form of gender violence emanating from gender discrimination but seldom
receives serious attention in our society. Basically, sexual harassment denotes any overt act or word of
a sexual nature (single or repeated) that demeans, humiliates and embarrasses the receiver, often
causing psychological trauma. By implication then, it is arguable that sexual harassment is to a large
extent subjective since it is from the victim‟s perspective that its offensive nature is often determined.
Hence, the popular misconstrued notion, that sexual harassment is the “business” of the victim to sort
out, prevails among many communities. Many times, the victims and spectators of acts of sexual
harassment find themselves voiceless and powerless.8
1.13. CONCLUSION.
In this Dissertation, Chapter Two will deal with the Domestication and Implementation of
International and Regional Children‟s Rights Instruments. This chapter will highlight the extent to
which Zambia has implemented and domesticated the CRC. Therefore, this chapter provides the basis
for recognising that children have rights that are codified at international level that need to be respected
and protected by States Parties. The chapter also shows that where the law provides rights to an
individual or a group of people, it equally places a duty on families, society, the government and
relevant institutions to protect and uphold the rights guaranteed. Chapter Three is an analysis of the
laws that specifically deal with Defilement in Zambia. This chapter assesses the weakness of the law
on defilement in Zambia in as far as upholding the rights of the victim is concerned. In so doing, the
chapter analyses the current Zambian law on defilement in the Penal Code, Chapter 87 of the Laws of
Zambia in relation to other relevant Zambian Statutes such as the Constitution of Zambia, Chapter 1 of
the Laws of Zambia and the Juveniles Act, Chapter 53 of the Laws of Zambia
8
Cohen, P.C. Women and International Human Rights Law (Vol. 3). Ardsley: TransnationalPublishers, 1998.
The aim of this chapter is to show that due to the neglect on the victim in implementing and
domesticating the CRC, the laws that have been developed and applicable in criminal matters are unfair
on child victims as they tend to take away the rights of child victims provided in the CRC. An example
of the right which is taken away by the Zambian criminal law is freedom of speech when the victim is
not allowed to testify in their own case. This chapter begins with analysing the Constitution being the
ground norm, and thereafter discusses statutes such as the Penal Code and the Juveniles Act.
Chapter four tackles the child witness psychology and the court‟s interpretation of the evidence of the
child. This chapter shows that psycho-social approaches are necessary if the law and procedures are to
address the challenges the child victim witnesses face during trial. The preceding chapters analysed
criminal law on defilement and found the weaknesses imbedded in the law with regard to the
restriction on the reception of unsworn testimony by the law and the requirement for an acquittal in the
absence of corroboration. The restriction as was shown is a departure from the rights guaranteed to
children in the Constitution of Zambia and in the CRC. It has been found that the weaknesses in the
law and the challenges courts encounter are due to the lack of understanding the child as a witness. The
hypothesis is that there is a gap between the law and child development. The gap can be answered by
examining the child‟s psychology as provided by psycho-social approaches on the development of the
child.
Finally Chapter five gives an overview of the research, findings, summary and recommendations on
Defilement laws. This study seeks to determine whether the rights of girls who are defiled are
protected by the courts. The question that was being determined was whether the law and the courts
are upholding the rights of defilement victims. In so doing, existing legislation on criminal law,
procedural requirements and the courts were examined with a view to ascertain whether the rights of
the victims are upheld and protected. Therefore, the rights of a child with regard to defilement were
highlighted with reference to provisions as contained in international instruments and domestic
legislation. Further, the dissertation seeks to determine the challenges courts face, if any, in its duty to
protect the rights of defilement victims.
CHAPTER TWO
DOMESTICATION AND IMPLEMENTATION OF INTERNATIONAL AND REGIONAL
CHILDREN’S RIGHTS INSTRUMENTS.
2.0. INTRODUCTION
Children‟s rights are enshrined in international instruments as well as in domestic law. This chapter
will focus on the international and regional instruments with provisions relevant to the rights of the
child under consideration in this dissertation as well as the relevant instruments Zambia has ratified.
This chapter will highlight the extent to which Zambia has implemented and domesticated the CRC.
Therefore, this chapter provides the basis for recognising that children have rights that are codified at
international level that need to be respected and protected by States Parties. The chapter also shows
that where the law provides rights to an individual or a group of people, it equally places a duty on
families, society, the government and relevant institutions to protect anduphold the rights guaranteed.
2.1. CONVENTION ON THE RIGHTS OF THE CHILD

In the CRC, a convention is defined as an international human rights treaty (agreement) which provides
for universally accepted standards. Once a convention is signed and ratified by a country, it becomes
legally binding on that country.
2.1.1. Obligations of States Parties

Articles 1 to 5 of the CRC contain the overall obligations. A child is defined as a person under the age
of 18 years.9 It is provided that the rights in the CRC should be enjoyed by all children without
discrimination. It thus follows that in the CRC all children are equal in rights and should be treated as
such. Every child has the right to be treated fairly and equally, free from all kinds of discrimination.
The principle of non-discrimination underpins the development of justice for the child and support
programmes for all children‟s access to justice. Special attention needs to be given to the most
vulnerable groups of children including – but not limited to – children associated with armed groups,
children without parental care, children with disabilities, children belonging to minority groups,
migrant children, children born as a result of war-time rape and childrenaffected by HIV/AIDS.10
This also means that children deprived of liberty and children involved in war time atrocities – often
perceived as „less deserving‟ – have the same rights as other children. A gender sensitive approach
9
Convention on the Rights of the Child (CRC) Adopted and opened for signature, ratification and accession by
General Assembly Resolution 44/25 of 20 November 1989, entered into force 2 September, 1990, in accordance
with Article 49
10
Cohen, P.C. Women and International Human Rights Law (Vol. 3). Ardsley: TransnationalPublishers, 1998
should be taken in all interventions. States Parties are obligated to ensure that all actions taken are in
the best interest of the child. As has been stated in chapter one, the best interest of the child is not a
central feature of this dissertation. According to the CRC, the best interest of the child is of
paramount consideration in all matters relating to children.11 Every child has the right to have his or
her best interest given primary consideration.
In all actions concerning children, whether undertaken by courts of law, administrative or other
authorities, including non-State, the best interest of the child must be a primary consideration. This
principle should be applied both when taking decisions regarding an individual child or for children as
a group; and should guide the whole process (judicial, administrative or other) but also be a primary
consideration in determining in the first place whether the child should participate in the process or not.
States Parties are obliged to undertake specific implementation measures, such as legislative,
administrative or judicial measures. It is important for member States to formulate legislation or
review existing legislation so that it is child friendly. The CRC further provides that States Parties
must respect the responsibilities, rights and duties of a child's parents, extended family members,
community or legal guardians. Such a provision is necessary in the CRC considering that parents,
legal guardians and extended family members have responsibilities towards the child‟s welfare.
2.1.1. Children’s Explicit Rights in the CRC:

Firstly, children have the right to participate when decisions that affect them are made. Every child has
the right to express his or her views freely and to be heard.12 Children have a particular right to be
heard in any judicial and administrative proceedings, either directly or through a representative or an
appropriate body, in a manner consistent with the procedural rules of national law. The right to
participation implies, for example, that the child receives adequate information about the process,
the options and possible consequences of these options; and that the methodology used to question the
child and the context (for instance, where the child is interviewed, by whom and how) be child-friendly
and adapted to the particular child. In conflict and post-conflict contexts, it is also important to fully
involve children in transitional justice processes. Children‟s meaningful participation in State-run and
non-State justice proceedings often requires a significant change in law, legal practice and attitudes.
Secondly, every child has the right to protection from abuse, exploitation and violence. Children in
contact with the law should be protected from hardship while going through State- run and non-State
11
Convention on the Rights of the Child (CRC) Adopted and opened for signature, ratification and accession by General
Assembly Resolution 44/25 of 20 November 1989, entered into force 2 September, 1990, in accordance with Article 49
12
justice proceedings, as well as after the process. Procedures have to be adapted and appropriate
protective measures put in place, noting that the risks faced by boys and girls will differ. Torture or
other cruel, inhuman or degrading treatment or punishment must be prohibited.13
Thirdly, every child has the right to be treated with dignity and compassion. Every child has to be
treated as a unique and valuable human being and as such his or her individual dignity, special needs,
interests and privacy should be respected and protected.14
Fourthly, there must be respect for legal guarantees and safeguards. Basic procedural safeguards as set
out in relevant national and international standards and norms should be guaranteed at all stages of
proceedings in both State-run and non-State systems, as well as in international justice. This includes,
for example, the right to privacy, the right to legal aid and other types of assistance; and the right to
challenge any decision through a higher judicial authority.
2.2. THE AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD
The African Charter on the Rights and Welfare of the Child (hereinafter referred to as the Charter) is
an African Convention which has direct links with the CRC and other universal standards.15 The
Charter‟s preamble specifically states that it adheres to the principles of human and people‟s rights and
freedoms contained in the declarations, conventions and other instruments adopted by various
international organisations, among them, the United Nations. It follows therefore that the Charter
recognises the CRC concerning the rights and welfare of the child contained in the CRC. The Zambian
government signed the Charter on 17th January, 1983 and ratified it on 10th January, 1984.16
The Charter requires that member States do recognise the rights and duties enshrined in the Charter.
The Charter provides that „the member States of the Organisation of African Unity parties to the
present Charter shall recognise the rights, duties and freedoms enshrined in this Charter and shall
undertake to adopt legislative or other measures to give effect to them. This provision uses the word
„shall‟ which eliminates discretion on the part of a member State whether to adopt provisions or not.
13
14
Munsaka, E., and Beatrice M. Human Development from Conception to Adolescence: Typical and Atypical
Trends. Lusaka: University of Zambia Press, 2013.
15
African Charter on Human and Peoples’ Rights (ACHPR) Adopted in Nairobi June 27, 1981,entered into force 21
October, 1986 – Regional Instrument African Charter on the Rights and Welfare of the Child
16
However, despite the use of the word „shall‟ member States are not obliged to incorporate the
provisions of the Charter into domestic law.17
2.2.1. The Unique Position of the African Child in the Charter

The Charter explicitly recognises the unique position which an African child occupies in society and
states that a child should grow up in a family environment for the full and harmonious development of
his/her personality. An African child usually occupies a position of great responsibility within the
family. The child looks after younger siblings and performs essential chores such as fetching water,
caring for elderly members of the family and herding livestock. It is important to realise that because
the African child has such responsibilities, he/she should not be treated in a manner which renders the
child helpless. The Charter recognises this unique aspect of the African society, in terms of which the
child is not merely a passive recipient but an active participant. It also recognises the special needs of
the child and states that a child requires particular care with regard to health, physical, mental, moral
and social development, and a child requires legal protection in conditions of freedom, dignity and
security.
2.2.2. Rights and Duties of States Parties

The recognition of rights and duties is important since having a right necessarily means that someone
else has an equivalent duty. Article 218 of the Charter provides that „every individual shall be entitled
to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without
distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other
opinion, national and social origin, fortune, birth or other status‟.19 The Charter also provides that „(1)
every individual shall be equal before the law. 20 Article 1(2)of the Charter states that, „every individual
shall be entitled to equal protection of the law.‟ Further, the Charter states that „human beings are
inviolable. Every human being shall be entitled to respect for his life and the integrity of his person.
No one may be arbitrarily deprivedof this right.‟21
This shows that all children under the Charter require equal protection of the law and all should be
17
African Charter on Human and Peoples’ Rights (ACHPR) Adopted in Nairobi June 27, 1981, entered into force 21
18
19
20
21
accorded the same rights and freedoms without distinction of any kind. Children have the same
integrity and rights that adults have, hence they are covered under the Charter. In the Charter, „every
individual shall have the right to respect for the dignity inherent in a human being and to the
recognition of his/her legal status. All forms of exploitation and degrading punishment and treatment
shall be prohibited.‟ Further, the Charter provides that „every individual shall have the right to enjoy
the best attainable state of physical and mental health. By its nature, defilement is exploitative on the
victim and brings mental instability.
The Charter defines child as every human being below the age of 18 years. It embodies the philosophy
of the CRC that in all actions concerning the child, the best interest of the child shall be a primary
consideration. With regard to participation, as is the case with the CRC, the Charter also includes the
right of participation by stipulating that „in all judicial or administrative proceedings affecting the child,
an opportunity shall be provided for him or her to be heard and those views shall be taken into account
by the relevant authority‟
The Charter also prohibits any form of cruel, inhuman and degrading treatment or punishment of
children. Like the CRC, the Charter recognises that in all matters relating to children, the best interest
of the child is paramount consideration. Children are recognised as having special needs and that they
must receive treatment which promotes their dignity and self-worth, and reinforces their respect for the
human rights and fundamental freedoms of others.
2.2.3. THE UNITED NATIONS STANDARD MINIMUM RULES FOR THE

ADMINISTRATION OF JUVENILE JUSTICE
The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (commonly
referred to as the Beijing Rules) were adopted by the UN in Beijing, China in 1985.22 This is the first
set of international rules to comprehensively set standards for the administration of child justice. One
of the most important aspects of the Beijing Rules is that they provide for the development of separate
and specialised systems of child justice. Although the Beijing Rules are not legally binding, certain
principles have been incorporated into the CRC and are, therefore, binding. For instance, the
commentary on Rule 2.1 the Beijing Rules states that, „rule 2.1 stresses the importance of the Rules
22
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) Adopted by
th
General Assembly Resolution 40/33 of 29 November, 1985, 96 plenarymeeting
always being applied impartially and without distinction of any kind.23 The rule follows the
formulation of principle 2 of the Declaration of the Rights of the Child. The Committee on the Rights
of the Child specifically recommended that the administration of juvenile justice in Zambia be guided
by these Rules. The Zambian legal system is therefore reminded that it is important to be aware of and
uphold these provisions, especially those that refer to law enforcement officers.
In the Beijing Rules, there are some provisions which can be related to defilement of young children. In the
Beijing Rules, a juvenile is defined as „a child or young person who, under the respective legal systems,
may be dealt with for an offence in a manner which is different from an adult, and a juvenile offender
is defined as „a child or young person who is alleged to have committed or who has been found to have
committed an offence. Clearly, the definition of a juvenile is quite distinct from the definition of a
juvenile offender. Therefore, the definition of juvenile could be applicable to juvenile victims coming
into contact with the law by virtue of being witnesses and they require to be treated in a different way
from the adult witnesses.
Also, Rule 7.1 of the Beijing Rules24 states that „basic procedural safeguards such as the presumption
of innocence, the right to be notified of the charges, the right to remain silent, the right to counsel, the
right to the presence of a parent or guardian, the right to confront and cross- examine witnesses and the
right to appeal to a higher authority shall be guaranteed at all stages of proceedings. According to the
commentary on this Rule in the Beijing Rules, it is stated that Rule 7.1 emphasises some important
points that represent essential elements for a fair and just trial that are internationally recognised in
25
existing human rights instruments. Rule 15.2 of the Beijing Rules states that the parents or the
guardian shall be entitled to participate in the proceedings and may be required by the competent
authority to attend them in the interest of the juvenile.26 They may, however, be denied participation by
the competent authority if there are reasons to assume that such exclusion is necessary in the interest of
the juvenile.
Further, according to Rule 14.2 of the Beijing Rules, the proceedings shall be conducive to the best
23
Universal Declaration of Human Rights (UDHR) Adopted by General Assembly Resolution 217A (III) of 10 December 1948
24
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) Adopted by General
th
Assembly Resolution 40/33 of 29 November, 1985, 96 plenarymeeting
25
th
26
th
interest of the juvenile and shall be conducted in an atmosphere of understanding, which shall allow
the juvenile to participate therein and to express herself or himself freely.27 In the commentary on this
Rule, it is stated that in accordance with due process, a „fair and just trial‟ includes such basic
safeguards as the presumption of innocence, the presentation and examination of witnesses, the
common legal defences, the right to remain silent, the right to have the last word in a hearing, the right
to appeal, etc.
Clearly, the Beijing Rules have progressive provisions regarding the handling of the juvenile offender.
However, Rules such as Rule 7 and 14 are applicable to juvenile victims as the victims need the trial to
be conducted in an atmosphere of understanding in which the juvenile is allowed to freely participate
therein and to express herself or himself freely. Where applicable, to have the parents or guardians
present to give general psychological and emotional assistance to the juvenile-a function extending
throughout the procedure.
2.4. IMPLEMENTATION OF INTERNATIONAL INSTRUMENTS
The implementation of international instruments by member States of particular organisations is
dependent on individual member States. However, most international instruments have provisions
with regard to States action in as far as implementing the provisions of relevant documents are
concerned.28
2.4.1. The Universal Declaration of Human Rights
The preamble to the Universal Declaration of Human Rights (UDHR) makes reference to the
protection of human rights by the „rule of law.‟ The UDHR gives every person the right to an effective
remedy through a competent national tribunal for acts that violate the fundamental rights granted
to him or her by the constitution or by the law.29
2.4.2. The International Covenant on Civil and Political Rights
The theme of State implementation also appears in the twin covenants one of which is the International
Covenant on Civil and Political Rights (ICCPR). The ICCPR obligates States „to take necessary steps
in accordance with the constitutional process to adopt such legislative or other measures as may be
necessary to give effect to the rights recognised in the present covenants.
2.4.3. The International Covenant on Economic, Social and Cultural Rights
The other twin covenant is the International Covenant on Economic, Social and Cultural Rights
27
th
28
Muller, K., and Holley, K. The Judicial Officer and the Child Witness. Port Elizabeth: Carl andEmily Fuchs Foundation, 2002
29
Universal Declaration of Human Rights (UDHR) Adopted by General Assembly Resolution 217A (III) of 10 December 1948
(ICESCR). The ICESCR also places an obligation on States Parties to take steps to the
maximum of their available resources with a view to achieving progressively the full realisation of the
rights recognised in the covenant including the adoption of legislative measures.
2.4.4. The African Charter on the Rights and Welfare of the Child
Article 1 of the Charter provides that member States shall „undertake to adopt legislative and other
measures to give effect to the rights, duties and freedoms enshrined in the Charter. Zambia is a
common law country and, therefore, must domesticate international instruments in order to make them
enforceable in the courts of law. However, as a party to the said international human rights
instruments, it is placed under an obligation to report violations of children‟s rights according to the
requirements of the different treaties to which it is a party. Furthermore, by ratifying the different
treaties and conventions, Zambia is morally bound to use the treaties and conventions in interpreting
grey areas of its laws. Another consequence of ratification is that the Zambian Parliament and
Executive are presumed to want to act consistently with their international obligations.30 If two or
more interpretations of a situation are possible, Zambia is obliged to take the interpretation that is in
accordance with its international obligations. Treaties can only have legal effect to the extent that they
are implemented by domestic law since courts will only apply domestic law. Treaty provisions are also
often general in character and need to be implemented by specific detailed provisions in domestic law
– such as in the Constitution, and with regard to children, in the Juveniles Act and the Penal Code.31
As Florence Butegwa appropriately pointed out, „the language of human rights carries great
rhetorical forceof uncertain practical significance. Therefore, specific human rights instruments need a
certain degree of positivisation or particularisation. This is the very reason in most of the international
instruments, it is provided that nations should take necessary steps in their national law to give effect to
the provisions in international treaties. For instance, the CRC obligates States Parties to undertake
specific implementation measures, such as legislative, administrative or judicial measures. Only when
this occurs can human rights become a basis for challenge to legislative or executive action which is
violative of them.
The CRC obligates States Parties to ensure that all actions taken are in the best interest of the child. It
is clear that Zambia having ratified the CRC has an obligation to give effect to the provisions in the
international treaties that she has ratified. However, has Zambia taken the necessary steps to give
30
Muller, K., and Holley, K. The Judicial Officer and the Child Witness. Port Elizabeth: Carl andEmily Fuchs Foundation, 2002
31
Munsaka, E., and Beatrice M. Human Development from Conception to Adolescence: Typical and Atypical Trends.
Lusaka: University of Zambia Press, 2013.
recognition to the international treaties she has ratified? This issue will be discussed by analysing the
law on defilement and other relevant Zambian laws which directly or indirectly affect or are connected
to the realisation of the rights of the child in Zambia.
2.5. IMPLEMENTATION OF THE CONVENTION ON THE RIGHTS OF THE CHILD IN

ZAMBIA
Zambia ratified the CRC on the 6th December, 1991 whereupon it agreed to be bound by the provisions
of the instrument. The ratification opened doors for the government to work with donors and other
cooperating partners regarding the welfare of the child. This led to a study being commissioned by the
Ministry of Home Affairs with the support of SIDA, Department for International Development DFID, United
Nations Children‟s Fund UNICEF and other donors such as Danish, Dutch and British on how children who
came into conflict with the law (juvenile offenders) experienced the criminal justice system. The focus was on
three areas of the criminal justice system namely: arrest, detention pending trial and the trial itself.32
Child-Friendly Courts (specialised courts) were introduced and established in 2001 to conduct trials of
children in a manner that, inter-alia, reinforces their respect for human rights and fundamental
freedoms of others. Their aim was to provide guidance on the transformation of the child justice
system by ensuring adherence to the standards set out in the CRC and other international instruments
such the Beijing Rules; the UN Guidelines for the Prevention of Juvenile Delinquency (commonly
referred to as the Riyadh Guidelines); and the UN Rules for the Protection of Juveniles Deprived of
their Liberty (referred to as the JDLs). The court is expected to take into account the child‟s age and
provide for the reintegration and playing of a meaningful role in the community. The study on the
implementation of the CRC in Zambia however, focussed on child offenders than on child victims
who come into contact with the law.
Due to the findings regarding child offenders, it was recommended that a forum be established which
was subsequently formed and named „the Child Justice Forum (CJF) hereinafter referred to as the
Forum. The Forum was established in Lusaka at the then Chikwa Magistrates Court to implement the
recommendations of the study. The Forum was initiated by UNICEF and established in 2001 in Lusaka
and operates as an open-ended group of role players and stakeholders. Its aim is to provide guidelines
on the transformation of the child justice system by ensuring adherence to the standards set out in the
32
CRC and other international instruments such as the Beijing Rules; the Riyadh Guidelines; and the
JDLs.33
The other stakeholders of the Forum include but are not limited to the Judiciary, Social Welfare,
Police, Correctional Service, quasi government organisations such as the Drug Enforcement
Commission, Human Rights Commission; and Non-Governmental Organisations such as Young
Women‟s Christian Association (YWCA), Jesus Cares Ministries, Rural Youth and Children in Need
RYOCHIN, and Zambia Civic Education. The forum also draws membership from cooperating
partners such as Access to Justice under Ministry of Justice, UNICEF, and Save the Children Sweden.
The Forum is chaired by the Judiciary, with a magistrate being the chairperson. There are currently 38
branches in the country. The objectives of the Forum are, among others, to provide guidance on the
transformation of the child justice system by ensuring that there is adherence to the standards set out in
international instruments; and to prevent juveniles from unnecessarily moving further into the criminal
justice system.
As it has been rightly observed, in all the aims of the Forum, there is nothing that shows that the forum
has any programmes or measures set out for the child victims.34 The specialised courts are trained in
such a way that their focus is on the child offender as opposed to the victim. Meanwhile, it is a known
fact that children who are victims, such as defilement victims, do come into contact with the law when
they come into contact with law enforcement agencies and subsequently appear before the courts of
law as witnesses. The Forum can therefore be said to have turned a blind eye to the child victims. This
therefore means that the rights of the child victim are not adequately considered and protected by the
courts as well as by law enforcement agencies. By this, the Forum is not upholding the spirit of Article
2 which states that the rights in the CRC should be enjoyed by all children without discrimination.
It is very strange to note that with regard to child offenders, Zambian courts and law enforcement
agencies are expected to treat the children in accordance with the provisions in international
instruments yet no equivalent treatment is done to the child victim. It therefore shows how the law is
being applied in a discriminating style. So much concern is shown on the child offender yet no equal
concern is exhibited for the child victim. Therefore, in accordance with the provisions of the CRC, it
can be safely stated that the rights of a child victim in Zambia are violated within the very
33
Munsaka, E., and Beatrice M. Human Development from Conception to Adolescence: Typical and Atypical Trends.
Lusaka: University of Zambia Press, 2013.
34
Perry, N.W., and Wrightsman, L.S. The Child Witness: Legal Issues and Dilemmas. California:Sage Publications, 1991
institutions meant to protect her. Discussion of the law that follows further illustrates this point.35
2.6 CONCLUSION
The international instruments that have been discussed in this chapter have demonstrated that children
are holders of rights that require protection. With reference to the Beijing Rules and the CRC, it has
been demonstrated that both have progressive provisions on the protection of the rights of the child.
Also, that State Parties have an obligation to domesticate the provisions of the CRC and other
international instruments. It has also been shown that Zambia ratified the CRC and she is under an
obligation to domesticate the rights contained in it. However, in its implementation and domestication
into domestic law, Zambia has introduced various programs aimed at protecting the rights of children
who come into conflict with the law and has given a blind eye to the rights of the victims of defilement
who come into contact with the law.36 By focussing on the child offender without offering equal
attention on the child victims, the implementation of the CRC in Zambia has discriminated against the
defilement victims. As a result, the laws and procedures applicable in defilement cases are unfair on
the victims and are not sensitive to the plight of the defilement victims thereby depriving the victims
the justice they rightly deserve.
35
Perry, N.W., and Wrightsman, L.S. The Child Witness: Legal Issues and Dilemmas. California:Sage Publications, 1991
36
Muller, K. Prosecuting the Child Sex Offender. Port Elizabeth: Printrite, 2001
CHAPTER THREE
SALIENT PROVISONS OF LAWS THAT SPECIFICALLY DEAL WITH DEFILEMENT IN
ZAMBIA.
3.0. INTRODUCTION
This chapter assesses the weakness of the law on defilement in Zambia in as far as upholding the rights
of the victim is concerned. In so doing, the chapter analyses the current Zambian law on defilement in
the Penal Code, Chapter 87 of the Laws of Zambia in relation to other relevant Zambian Statutes such
as the Constitution of Zambia, Chapter 1 of the Laws of Zambia and the Juveniles Act, Chapter 53 of
the Laws of Zambia. The analysis of the law on defilement is based on the preceding chapter to
highlight the shortcoming in the domestication of the CRCwith regard to child victims. The aim of this
chapter is to show that due to the neglect on the victim in implementing and domesticating the CRC,
the laws that have been developed and applicable in criminal matters are unfair on child victims as they
tend to take away the rights of child victims provided in the CRC. An example of the right which is
taken away by the Zambian criminal law is freedom of speech when the victim is not allowed to testify
in their own case. This chapter begins with analysing the Constitution being the grund norm, and
thereafter discusses statutes such as the Penal Code and the Juveniles Act.
3.1. THE CONSTITUTION OF ZAMBIA

Article 1(1) of the Constitution of Zambia (Amendment) Act No. 2 of 2016 37 provides that „this
Constitution is the supreme law of Zambia and if any other law is inconsistent with this Constitution
that other law shall, to the extent of the inconsistency, be void. Under the preamble in the Constitution,
it is provided that „we the people of Zambia pledge to ourselves that we shall ensure that the State shall
respect the rights and dignity of the human family, uphold the laws of the State and conduct the affairs
of the State in such manner as to preserve, develop, and utilise its resources for this and future
generations.‟ The human family in this regard, refers to all persons regardless of their age,
acknowledging that they have rights which deserve to be respected and protected.
3.1.1. The Bill of Rights in the Zambian Constitution

In the Zambian Constitution, there is a Bill of Rights which guarantees and protects the rights of
citizens. Article 1138 of the Constitution of Zambia provides that „it is recognised and declared that
every person in Zambia has been and shall continue to be entitled to the fundamental rights and
37
38
The 1991 Constitution of Zambia,
freedoms of the individual, that is to say, the right, whatever his race, place of origin, political
opinions, colour, creed, sex or marital status.‟ This Article aims at guaranteeing the pledge in the
preamble by going a step further to entitle all persons in Zambia regardless of their race, sex or
whether citizen of the land or not, as long as one is a human being, fundamental rights and freedoms of
the individual. The phrase in Article 11, „every person in Zambia‟ in its literal sense, simply means
„everyone‟ or „every human being.‟ This therefore means that regardless of the age of the individual
whether a child or adult, all are entitled to fundamental rights and freedoms of the individual.
There is however, another Article in the Constitution that narrows down to children and it provides that
„all young persons shall be protected against physical or mental ill-treatment, all forms of neglect,
cruelty or exploitation. ‟As defilement physically and emotionally affects the victims, it is a form of
cruelty or exploitation on a child. Therefore, this Article can be said to include protection from
defilement. It is the intention of the Constitution of Zambia to protect children against defilement.
The Constitution does define “young persons” as „any person under the age of 15 years.‟39
Thus, under the Constitution, the age under consideration is 15 years. A young person is one who is
under the age of 15; thus children under the age of 15 are covered in the definition of a young person.
However, in the Penal Code, in terms of defilement, a child is defined as someone below the age of
16 years. It is important to note that both the Constitution and the Penal Code have provisions that
relate to children who have not yet reached the age of majority. It is therefore possible to argue that
defilement is covered under Article 24(4) of the Constitution.40 The Constitution thus can be said to
guarantee the protection of children from being defiled.
Furthermore, the Constitution has exceptions in its applicability to children below the age of 15 years.
This is with regard to personal law. Discrimination on grounds of personal law is permitted under the
Constitution. For instance, the Constitution provides that:41
 Subject to clauses (4), (5) and (7), a law shall not make any provision that is discriminatory
either of itself or in its effect.
 In this Article the expression “discriminatory” means affording different treatment to different
persons attributable, wholly or mainly to their respective descriptions by race, tribe, sex, place
of origin, marital status, political opinions, colour or creed whereby persons of one such
39
The Constitution of Zambia Chapter 1 of the Laws of Zambia
40
41
description are subjected to disabilities or restrictions to which persons of another such
description are not made subject to or are accorded privileges or advantages which are not
accorded to persons of another such description.
 Clause (1) shall not apply to any law so far as that law makes provision-
 With respect to adoption, marriage, divorce, burial, devolution of property on death or other
matters of personal law;
This means that where there is already law on matters such as adoption, marriage, divorce, burial,
devolution of property on death or on matters of personal law, whether that law is discriminatory either
of itself or in its application, that law is enforceable and is not subject to the direction in the
Constitution. With regard to Article 23(4)(c)42 of the Constitution cited above, personal law
encompasses customary law. Under customary law, as long as a girl reaches puberty, she is ready for
marriage. Usually at 15 years, a girl would have already reached puberty. Therefore, if the custom or
law of the girl allows marriage upon reaching puberty, even if the Constitution seeks to protect a child
below the age of 15 years from any kind of exploitation, this would be an exception or rather
permissible discrimination as defined above. In the case of Sibande v The People 43which has not been
overturned, the appellant was charged with defilement of a girl aged 12 years. In answer to the charge
he said "I admit the charge. It was an arrangement for marriage. She told me that she was 15 years . "
A plea of not guilty was entered and trial proceeded. The girl was the first prosecution witness.
On appeal, the Supreme Court held that:

I. The court cannot be called upon to consider, as being possibly the customary law on a
particular issue, a purely speculative suggestion completely unsupported by evidence.
II. If there is evidence fit to be left to a jury that the parties were married accordingto customary
law the onus would be on the prosecution to negative that suggestion. But it is not enough for
an accused simply to say “we are married” or even “we are married according to customary
law;” he must at least say “we are married according to customary law because we did this
and this,” and it would then be for the prosecution to show that the events alleged (assuming
they were accepted) did not constitute a valid marriage according to customary law.
Further, in the case of R. v Chinjamba44 which has also not been overturned, the Supreme Court found
that the 60 year old man did not defile the 12 year old girl because they were married under customary
law. This clearly shows that currently in Zambia, under customary law, once there is proof of a valid
customary marriage, whether the girl is under the age of 16 years or not, the accused cannot be
42
43
(1975) Z.R. 101
44
(1949) 5 N.R.L.R. 384
convicted of defilement.
3.2. DEFINITION OF A CHILD IN THE CONSTITUTION VIS-À-VIS OTHER DOMESTIC

STATUTES AND INTERNATIONAL INSTRUMENTS
In the Constitution a “child” is anyone below the age of 15 years. The Penal Code and the Juveniles
Act both define “child” as anyone below the age of 16 years. The Affiliation and Maintenance of
Children Act defines “child” as anyone below the age of 18 years. It is clear that various pieces of
legislation define “child” at varying ages. However, for purposes of this dissertation, the applicable
definition of child is as provided in the Penal Code being an Act that provides for the offence of
defilement.
At International level, for instance, in the CRC a “child” is defined as every human being below the
age of 18 unless, under the law applicable to the child, majority is attained earlier. In the Charter a
“child” is defined as every human being below the age of 18 years. It must be noted here that the issue
of age differentiation which arises in the aforementioned statutes has been problematic in the sense that
discrimination in the treatment of children has been on the basis of such age differentiation. For
instance, as far as the Constitution is concerned, anyone above the age of 15 years is an adult whereas
anyone below the age of 15 years is a child. Meanwhile, in the Penal Code45 and Juveniles Act,46
anyone below the age of 16 years is a child while in the Affiliation and Maintenance of Children Act,
anyone below the age of 18 years is considered a child.47
Currently research is being conducted by the Zambia Law Development Commission (ZLDC) to
harmonise the various laws in order to come up with a widely acceptable standard age for the
definition of a “child” in view of the various statutes defining or attaching different ages for a child.
With regard to the definition of “child” the research is also meant to try and domesticate the CRC in
order for the definition of a child in the domestic statutes to be in conformity with the provision in the
CRC. During the interview with a research officer at the ZLDC, it was stated that there were
concerns regarding the definition of child, because Zambia had not domesticated the CRC, which is
premised on the principle of the best interest of the child. Arising from this concern, the Commission
came up with a project called „Review of Child Related Legislation Project,‟ which is in two phases.
The first Phase is meant to review existing legislation to take into account the changing needs of
45
46
47
The Affiliation and Maintenance of Children Act, Chapter 64 of the Laws of Zambia
society relating to children. The legislation being looked at includes the Juveniles Act, Adoption Act,
Affiliation and Maintenance of Children Act, the Penal Code, Intestate Succession Act and the
Education Act. All these Acts have provisions relating to children. After reviewing them, the
intention is to pass legislation on definition of the child, the social needs of the child, children in
need of care, children in conflict with the law and how they should be treated in accordance with the
new ways of handling children who are in conflict with the law.48
According to the interviewee, the focus of the second phase is to make the law more accessible by
having all matters relating to children in one piece of legislation, that is, all the pieces of legislation
under review in phase one would have to be incorporated into one piece of legislation to be called the
„Children‟s Act.49 The interviewee said the research has faced challenges in harmonising all these
pieces of legislation. The biggest challenge relates to reaching a consensus on the appropriate
definition of the “child.” Also, the statutes under review in phase one address different issues relating
to children and there is a justification for that. For instance, the Penal Code has set ages for different
categories of children on presumption of capacity to commit an offence e.g. Section 14 provides for
criminal responsibility and it states that at the age of eight, it is accepted that a child is incapable of
committing a criminal offence, and therefore cannot be held criminally responsible. The Penal Code
also provides that a child below 12 years is not criminallyresponsible for an act or omission unless it is
proved that at the time of committing the act or omission he had capacity to know that he ought not to
do the act or make the omission. Also a person under the age of 12 years is presumed to be incapable
of having carnal knowledge.
The other challenge is likely to be in implementation; for instance, with regard to which institution
would be the lead institution in implementing the Children‟s Act under consideration. In the Penal
Code, the lead implementing institution is the Ministry of Home Affairs; with the Juveniles Act, it is
both the Ministry of Home affairs through the Zambia Correctional Service and Ministry of
Community Development, Mother and Child Health with regard to provision of social welfare reports,
approved schools and other related activities. For the Adoption Act, the lead institution is the Ministry
of Community Development Mother and Child Health.
The interviewee further mentioned that the ZLDC undertook a study of the South African Children‟s
48 nd
McLean, I. and Morrish, P. Harris’s Criminal Law. (22 Ed). London: Sweet and Maxwell,1973.
49
Muller, K., and Holley, K. The Judicial Officer and the Child Witness. Port Elizabeth: Carl andEmily Fuchs Foundation,
2002.
Act. The findings were that South Africa does have a Children‟s Act but according to the South
African Law Reform Commission, implementation of the Act has been problematic as they have failed
to come up with the lead institution to oversee its implementation. Current proposals suggest
disintegrating the Act into smaller components that would address specific issues.50
Due to all the varying definitions of “child” in the local statutes as well as challenges relating to the
would be lead implementing institution and having taken a leaf from the challenges faced by the South
African Law Reform Commission in the implementation of the Children‟s Act, the focus of the ZLDC
is to review the existing pieces of legislation separately. However, despite the impending challenges,
further studies are being conducted on the possibilities of having a Zambian Children‟s Act.
According to the interviewee, proposals before the ZLDC are that for all intents and purpose, a child
must be defined as a person below the age of 18.
3.3. DEFILEMENT AS DEFINED IN THE PENAL CODE

The Penal Code, Chapter 87 of the Laws of Zambia is an Act that stipulates various offences and
punishments accorded to each offence. It is in the Penal Code where defilement of children is
particularly provided for and the punishment set out. With regard to defilement, the Penal Code is read
together with Amendment Act No. 15 of 2005.51 Section 138(1) of the Penal Code 52provides that „any
person who unlawfully and carnally knows any child under the age of 16 years commits a felony and is
liable, upon conviction, to a term of imprisonment of not less than 15 years and may be liable to
imprisonment for life.‟ The law presumes that a child below the age of 16 years is incapable of
consenting to a sexual act. Section 138 (2) of the Penal Code provides that „any person who attempts
to have unlawful carnal knowledge of any child commits a felony and is liable, upon conviction, to
imprisonment for a term of not less than 14 years and not exceeding 20 years. Section 138 (3)
provides that „any person who prescribes the defilement of a child as cure for an ailment commits a
53
felony and is liable, upon conviction, to imprisonment for a term of not less than 15 years and may
be liable to imprisonment for life.‟ As can be seen from the phrasing of subsections (2) and (3) of
Section 138, the term “child” is used without any indication of age under consideration. The age
referred to can be derived from the context of the age stated in the whole section as being one below
the age of 16 years.
50
51
52
53
The amendment to the Penal Code which was made on 12th April, 201154 was by virtue of Amendment
Act No. 3 of 2011 in relation to Section 138. Section 138 of the Penal Code is amended in subsection
(1) by the insertion immediately after subsection (1) of the proviso that „provided that it shall be a
defence for a person charged with an offence under this section to show that the person had
reasonable cause to believe, and did in fact believe, that the child against whom the offence was
committed was of, or above the age of 16.‟ This proviso in fact was earlier repealed by the Amendment
Act No. 15 of 200555 but has been reintroduced by Amendment Act number 3 of 2011.56
Although defilement usually refers to adults engaging in sex with minors under the age of consent, as
stated earlier, different jurisdictions use many different terms for the crime, such as „sexual assault,‟
„rape of a child,‟ „corruption of a minor,‟ „carnal knowledge of a minor,‟ „unlawful carnal knowledge,‟
or simply „carnal knowledge. In Zambian statutes, the term „defilement‟ is used. For the offence of
defilement, overt force or threat need not be present. The offender may be convicted even if the
complainant explicitly consented to the sexual contact and no force was used by the actor. The law
presumes coercion, because a minor is legally incapable of giving consent to the act.57
Recapping the provisions of the Constitution guaranteeing the rights of the child without
discrimination against mental anguish, cruelty and exploitation, the law under the Penal Code indicates
the commitment to realise the rights of every child as set out in the Constitution. However, the most
recent amendment to the Penal Code providing for a defence of honest belief by an accused that the
child is above the age of 16 years is hindering the attainment of the protection of the rights of the child
as set out in the Constitution.58 It is a defence to an accused who defiles a child who in stature appears
like someone who is above the age of 16 years to advance the defence that he honestly believed that
the child was above the age of 16 years. Therefore, in border line cases of children who are 14 or 15
years and who appear to be 16 years and above, the accused has a defence under the proviso to Section
138 of the Penal Code. Once the defence succeeds, the accused would be acquitted. Thus, this
defence operates to the advantage of the offender but negatively affects the realisation of the rights of
the victim. In ensuring that the defence under the proviso is used by the accused, the law places a duty
onthe court to explain to the accused at the earliest time possible of the existence of the proviso.
54
The Penal Code (Amendment) Act No. 2 of 2011
55
56
57
58
In the case of Nsofu v The People, 59 it was held, inter alia, that:
Even where an accused pleads not guilty it is desirable that the proviso be explained before plea,
but certainly at some early stage in the proceedings, so that he may have the opportunity to direct
his cross-examination of the prosecution witnesses to the question of the girls' age.
In the event that the court omits to explain the proviso to the accused, it is fatal to the prosecution‟s
case especially in cases where the accused is prejudiced. This was the position in the case of Gift
Mulonda v The People 60 in which it was held, inter alia, that:
It is a rule of practice that the proviso to section 138 of the Penal Code should be explained to an
accused person. Failure to explain the provision is fatal.The age of the victim is defilement cases
is crucial and a very essential ingredient of the charge.
In the Gift Mulonda case, on appeal to the Supreme Court against the sentence of 15 years slapped on
him, the accused who had made an unequivocal plea of guilty in the Subordinate Court was acquitted
on the basis that the proviso was not explained to the accused and so, he wasprejudiced.
In obiter, the Supreme Court said:
“We have perused the record of the record of the trial Magistrate. It is very clear to us that the proviso to
section 138 of Cap 87 was not put to the Appellant at the time he was initially called upon to plead. Nor
was it put to him after the fact were read. Having regard to the circumstances under which the offence was
committed, as revealed by the read in court, this was not a borderline case, in terms of age. The facts
revealed that the Appellant had a meritorious statutory defence which was not explained as a requir
required by the rule of practice in such offences. Failure to explain the proviso on the facts of this
case was fatal that we did not even consider to order a retrial.”
The Gift Mulonda case is just one of the many cases in which the accused are acquitted on the basis
of the failure to explain the proviso to the accused or due a to successful defence of the proviso.
3.4.THE JUVENILES ACT
The Juveniles Act deals with children below the age of 16 years and Juveniles below the age of 19
years and is read together with the Penal Code in matters relating to children as the case may be.
Under the Act, the term “child” means a person who has not attained the age of 16 years while a
“juvenile” is a person who has not attained the age of 19 years; and includes a child and a young
person.61 Therefore, according to the Juveniles Act, a child is also a juvenile. A “young person” means
a person who has attained the age of 16 years, but has not attained the age of nineteen years. The
Juveniles Act clearly is not helpful in the manner it defines a child, juvenile and young person as the
59
(1973) Z.R. 287
60
(2004) Z.R. 135
61
three categories in certain instances appear to be put in one group or category. The dilemma is
compounded by the other age definitions as stated in the Penal Code discussed earlier.
With regard to child witnesses, the Act has set out the law that regulates the reception of such
evidence. In defilement cases, child victims are witnesses hence it is important to assess how Zambian
law treats the evidence of child witnesses. However, just as the Penal Code has been recently amended,
the Juveniles Act has not been spared. The Juveniles Act was amended on the12th April, 2011 by virtue
of Amendment Act No. 3 of 2011. Consequently, Section 122 of the Juveniles Act was amended and it
provides that:62
Where in any criminal or civil proceedings against any person, a child below the age of fourteen is
called as a witness, the court shall receive the evidence, on oath, of the child if, in the opinion of the
court, the child is possessed of sufficient intelligence to justify the reception of the child‟s evidence, on
oath, and understands the duty of speaking the truth:
Provided that-
(a) If, in the opinion of the court, the child is not possessed of sufficient intelligence to justify the
reception of the child‟s evidence, on oath, and does not understand the duty of speaking the truth, the
court shall not receive the evidence; and
(b) Where evidence admitted by virtue of this section is given on behalf of the prosecution, the accused
shall not be liable to be convicted of the offence unless that evidence is corroborated by some other
material evidence in support thereof implicating the accused.
Prior to the amendment to Section 122 of the Juveniles Act, the trial court was required to conduct a
voire dire on the child to ascertain whether the child understood the nature of an oath in order for the
evidence to be received on oath. Thereafter, the child would be subjected to cross examination. In the
event that the child did not understand the nature of an oath, the trial court was required to ascertain
whether the child was possessed of sufficient intelligence and understood the duty of speaking the truth
in order to give unsworn testimony. The unsworn evidence of the child was deemed as good evidence
or a deposition at law.63 The Act in the relevant section used the word „shall‟ meaning that unsworn
evidence of a child was deemed to be a deposition within the meaning of the law. Clearly, it was the
intention of the legislators to allow children of tender age whose rights have been infringed to be heard
by law enforcement agencies including the courts of law. It was recognised that children of tender age
have the right to be heard in matters affecting them as guaranteed in the Zambian Constitution and in
international instruments earlier discussed in this dissertation. In fact, there were a number of
62
63
2002.
convictions secured in the courts based on the uncorroborated evidence of the child coupled with any
other independent evidence in the matter provided the trial court warned itself of the dangers of doing
so.
In the new provision, however, the requirement that the child understands the nature of an oath before
sworn testimony could be received was removed. Instead, the trial court‟s duty is to ascertain whether
the child is possessed of sufficient intelligence and understands the duty of speaking the truth in order
for the court to receive that child‟s evidence on oath. The significant change in the new provision is in
the fact that now there is no provision for the court to receive unsworn evidence of the child. Once the
child does not satisfy the court on the above two tests, that child‟s testimony shall not be received
altogether. The discretion courts had to examine the child witnesses as to their capacity to give sworn
or unsworn evidence has been removed by the recent amendment.64
Generally, the test to adduce sworn testimony has been lowered. Despite this being the case, many
child witnesses fail the test to adduce sworn testimony. Also, due to the lowering of the test for sworn
testimony and in an effort to receive sworn testimony of child witnesses, courts place on oath child
witnesses which has posed new challenges on the child witnesses who under cross examination,
become inconsistent as has been demonstrated in subsequent chapters. It is worth noting that such
assessment of deciding to receive sworn testimony or discard with it for failure to meet the test is
subjective considering that magistrates are lay persons as far as depicting the psychological status of a
witness‟ ability to testify is concerned. Therefore, the assessment is different from one trial court to
another. However, the standard is that, as long as the victim does not qualify to give sworn evidence,
her right to be heard regarding what transpired is taken away despite the right being guaranteed in the
Constitution.
Also, with the new amendment, courts are not given the discretion to determine whether a child can
give sworn evidence or unsworn evidence. This is because the law no longer allows courts to take
unsworn evidence except evidence given on oath which has been disastrous on the child witness. The
Act makes it clear by stating that, the court shall not receive the evidence. The effect of this is that a
child of very tender age who does not possess sufficient intelligence and does not appreciate the duty
of speaking the truth cannot be heard in court.
64
2002.
Meanwhile, as earlier discussed, the Constitution guarantees freedom of expression without the
limitation imposed by the Juveniles Act.
Article 20 of the Constitution of Zambia provides that:65
Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of
expression, that is to say, freedoms to hold opinions without interference, freedom to receive ideas
and information without interference, freedom to impart and communicate ideas and information
without interference, whether the communication be to the public generally or to any person or
class of persons, and freedom from interference with his correspondence.
Clearly, the Constitution of Zambia envisages that all persons regardless of age have freedom of
expression to communicate ideas and information without interference. Therefore, the Constitution
guarantees children‟s freedom to express themselves in court on issues that affect them. Freedom of
expression is not limited to adults only but is open to all people by virtue of being human. By the
limitation imposed by the Juveniles Act, it is safe to state that a child witness who fails the test is
discriminated against in the enjoyment of the freedom to express oneself despite the right being
guaranteed in the Constitution.
Article 23(1) provides that „... a law shall not make any provision that is discriminatory either of itself
or in its effect.‟66
Sub Article (2) of Article 23 further provides that „ a person shall not be treated in a
discriminatory manner by any person acting by virtue of any written law or in the performance of the
functions of any public office or any public authority.‟67
From the Articles cited above, it follows that any law that is calculated to limit freedom of expression
of particular groups in this case, children, on whatever basis is inconsistent with the Constitution. The
amendment to the Juveniles Act can, in that sense, therefore be considered unconstitutional.
Further, the provision in the Juveniles Act barring children from testifying if they fail the test to give
sworn testimony is contrary to Zambia‟s obligations at international level. For instance, the CRC has
provisions to the effect that children have the right to participate when decisions that affect them are
made, and have the right to express their views freely and to be heard. It is further provided in the
CRC that children have the right to be heard in any judicial and administrative proceedings. By
ratifying the CRC, Zambia pledged to ensure that Zambian children are heard in matters affecting
them. Certainly, the provision in the Juveniles Act cannotbe said to be in the best interest of the child.
65
66
67
Cases of defilement involving very tender age children that have reached the courts of law range from
a few months old to about ten years. While some in this age group possess sufficient intelligence and
understand the duty to tell the truth in order to adduce sworn testimony, most of them usually do not.
One such case was a matter before the Subordinate Court under cause number SP2/677/2008, a
Moslem girl child victim aged five years did affirm following an assessment by the court that she
possessed sufficient intelligence and understood the duty to tell the truth, and did accordingly give
sworn evidence.
However, there have been cases where children, for instance, at the age of three or four years have
given unsworn evidence before the courts of law pursuant to the old provisions of the Juveniles Act as
the law was then. For instance, under cause numbers 2SP/E/159/2000 and SP2/718/2008,68 the victims
both girls, were aged four years old and they were able to give unsworn evidence and the court
received their evidence as good evidence. Furthermore, under cause numbers SP2/884/2008 and
SP2/601/2008, the victims were aged five and 11 years old respectively and both gave unsworn
evidence which was received by the court.
Also, there have been certain cases involving mentally challenged victims. The law on this class of
victims is particularly provided for under the Penal Code. The section provides that any person who,
knowing a child or other person to be of down syndrome or person with mental illness, has or attempts
to have unlawful carnal knowledge of that child or other person in circumstances not amounting to
rape, but which prove that the offender knew at the time of the commission of the offence that the
child or other person was of down syndrome commits a felony and is liable, upon conviction, to
imprisonment for a term of not less than 14 years and may be liable to imprisonment for life. In most
cases, mentally challenged victims are witnesses before the courts of law and most of them do have the
intelligence to give unsworn evidence but fail to meet the test to adduce sworn evidence. For instance,
in a case in the Subordinate Court under cause number SP1/65/2007 a 15 year old mentally challenged
victim gave unswornevidence as she had failed the test to give sworn evidence. It is therefore proper to
assert that the law on defilement is likely to deny the rights of imbecile victims who in most cases
fail the test to adduce sworn testimony. This is because even when a mentally challenged victim can
give unsworn evidence, the law prohibits the court from receiving such evidence.69
68
2SP/E/159/2000 and SP2/718/2008
69
Mabula, T.K; Sara L. “The Enforcement of Human Rights of Zambian Women.” Zambia Law Journal Vol. 21-24,
(1989-92): 30-45.
The significance of the above highlighted cases is that despite being young, some children pass the test
to give sworn testimony. Also, by the lowering of the test to adduce sworn testimony, that is, from
understanding the nature of an oath to merely having sufficient intelligence and demonstrating the
ability to understand the duty to tell the truth, it is possible that many children will now pass the test
thereby giving sworn testimony. However, challenges would arise during cross examination of child
witnesses when they become inconsistent in their testimony. The above cases also seek to show that
there were some victims who despite failing the test to adduce sworn testimony, their evidence was
received unsworn considering that the law as it was then, provided such an alternative. By so doing,
child witnesses enjoyed their freedom of expression.
Currently as the law is, mentally challenged victims and children of very tender age are not allowed to
give evidence in court as long as they do not possess sufficient intelligence and do not understand the
duty to tell the truth in order for them to give sworn testimony. As a result of the new legislation, the
likelihood of defilement cases being frustrated at the police level is high since the police are now aware
of the limitation on the reception of unsworn testimony of the victim in instances where the victim is
too young or is an imbecile most likely not able to pass the oath test. Or in the event that a child
witness passes the test, challenges arise when such a witness is being cross examined. Further, the
effect of the recent amendment to the Juveniles Act is contrary to the spirit of the Constitution. The
restriction against allowing unsworn evidence of child witnesses denies the victims their right to
freedom of expression as guaranteed in the Constitution.
While there is a restriction on the reception of unsworn testimony of the child, the accused is still at liberty
to either elect to give sworn testimony, or give unsworn testimony, or elect to remain silent. The accused
persons are in most cases sane adults who have sufficient intelligence, understand the duty to tell the truth
and understand the nature of an oath. In cases where an accused person is insane or cannot for some reason
take oath or give unsworn testimony, the Criminal Procedure Code has specific provisions to deal with the
accused.70 From the author‟s experience on the bench, the accused persons are not subjected to the oath test
because as adults, the law presumes that they understand the nature of an oath and possess sufficient
intelligence. Therefore, if the restriction to give unsworn testimony was on the accused, it is certain that none
of them would be prejudiced by this law. However, this is not the case for the child witness. There is no
distinction whatsoever. All children regardless of their age or their mental condition, they are subjected to the
70
Mabula, T.K; Sara L. “The Enforcement of Human Rights of Zambian Women.” Zambia Law Journal Vol. 21-24,
(1989-92): 30-45.
same procedural requirements. The restriction affects children who in most cases do not qualify to give
sworn testimony. Clearly, this law is unreasonable, is not in the best interest of the child and is inconsistent
with the Constitution of Zambia.71
It is the author‟s view that issues of a witness‟ intelligence are irrelevant considerations as the basis to allow
a witness to testify. When crime is committed against a person, it is just and fair to allow the victim to
narrate to the court what transpired. It is the duty of the court to analyse the credibility of a witness and
assess the totality of the evidence received. According to the Constitution, the rights of all the citizens should
balance subject to lawful limitations. In a criminal trial, there are two competing rights; for the offender and
for the victim. However, in the Zambian criminal justice system, there is more attention on the protection of
the offender‟s rights overriding the victim‟s rights. Therefore, it is safe to state that the protection of the
offender‟s rights is not equivalent to the protection of the rights of the child victim in that the protection of
the offender‟s rights is even enshrined in the Constitution without any claw backs in any other written law or
otherwise.
Article 18 (1) of the Constitution 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. 72 Sub Article (2) (a) of the same Article provides that every person
who is charged with a criminal offence shall be presumed innocent until he is proved guilty or has pleaded
guilty. Meanwhile, the Constitution does not provide an equivalent right to a fair trial process for the
victim.73
Further, while the Constitution of Zambia guarantees freedom of expression to all its citizens, the Juveniles
Act precludes young citizens from enjoying their freedom of expression when they fail to pass the test to
adduce sworn testimony. Furthermore, girls of border line age fail to receive justice when a successful
defence under the Penal Code is advanced by the offender that he reasonably believed the girl to be above
the age of 16 years. This is discrimination on the basis of physical appearance or stature contrary to the
spirit of the Constitution which seeks to protect the rights of all its citizenry without discrimination.
71
Sampa, A; Machina, H; Mushota, L; and Sichilombe, J. “Gender Bias in the Zambian Court System: A report based on
research findings.” Women in Law and Development in Africa, June, 1994.
72
Sampa, A; Machina, H; Mushota, L; and Sichilombe, J. “Gender Bias in the Zambian Court System: A report based on
research findings.” Women in Law and Development in Africa, June, 1994.
73
Human Rights Watch, “The Human Rights Watch Global report on Women’s Human Rights.” August, 1995
3.5. CONCLUSION
It has been demonstrated that the Constitution guarantees freedom of expression to all people without
discrimination and protection from being defiled. However, statutes such as the Penal Code and the Juveniles
Act take away the rights of the child witness. The rights are denied to the children by virtue of the
restrictions stemming from the insistence on sworn evidence which takes away the right to be heard of tender
children who do not possess sufficient intelligence and do not appreciate the duty to tell the truth. In
addition, the availability of a defence based on the physical appearance of the victim has exposed the girl
child to defilement and the failure to uphold her right from being defiled when the defence leads to an
acquittal of the offender. The amended provisions in the Penal Code and Juveniles Act have exposed the
weaknesses embedded in the criminal law on sexual offences in Zambia which encompass the offence of
defilement.
CHAPTER FOUR
THE CHILD WITNESS PSYCHOLOGY AND THE COURT’S INTERPRETATION OF THE

EVIDENCE OF THE CHILD
4.0. INTRODUCTION
This chapter shows that psycho-social approaches are necessary if the law and procedures are to address
the challenges the child victim witnesses face during trial. The preceding chapters analysed criminal law
on defilement and found the weaknesses imbedded in the law with regard to the restriction on the
reception of unsworn testimony by the law and the requirement for an acquittal in the absence of
corroboration. The restriction as was shown is a departure from the rights guaranteed to children in the
Constitution of Zambia and in the CRC. It has been found that the weaknesses in the law and the
challenges courts encounter are due to the lack of understanding the child as a witness. The hypothesis is
that there is a gap between the law and child development. The gap can be answered by examining the
child‟s psychology as provided by psycho-social approaches on the development of the child.
As courts have been put on the spotlight, this chapter also seeks to discuss the psych-social effect of
putting on oath very young witnesses and how courts interpret the evidence of the children which has
inconsistencies when arriving at a decision. Regarding inconsistencies in the testimony, it will be shown
that there is no distinction in the way evidence given by adults and children is interpreted. The net result
is that it shall be demonstrated that such a general interpretation of the evidence disadvantages children
considering that for children, inconsistencies in their testimony is not an indicator of lies but of truth
while for adults,inconsistencies are an indicator of lies.74
Therefore this chapter discusses child witnesses with a view to understanding their abilities and
limitations in terms of cognitive development, language development and memory. These abilities are
critical for a witness in court. Cognitive ability in children is of importance to this dissertation as this is
one of the tools that victim child witnesses require to effectively give their testimonies in the courts of law
for crimes committed against their person. It is important to understand child witnesses if they are to be
good witnesses. It will also be shown that when simply allowed to narrate the event to the court, children
can be good witnesses.
74
Human Rights Watch, “The Human Rights Watch Global report on Women’s Human Rights.” August, 1995
4.1. UNDERSTANDING THE CHILD WITNESS
A child victim of sexual abuse is ordinarily expected to testify as a witness in a courtroom. However,
children were traditionally perceived as unreliable witnesses and the veracity of their allegations was
routinely disputed.75 In more contemporary times, child sexual abuse has received much media attention,
resulting in a swing to the opposite end of the spectrum. A child, even a very young child, who gives an
account of sexual abuse, is often believed without question, and this has given rise to such broad
generalisation as “children never lie about sexual abuse” or “the younger the child, the less likely it will
be a lie.” The media focus on child sexual abuse led to a renewed interest in the child witness by
researchers, and studies subsequently published, accusing children of having poor cognitive abilities and
of being highly susceptible to suggestion. The pendulum has thus moved backwards and forwards,
creating much uncertainty about the reliability of children testifying in court.76
The child victim is a witness in the courtroom as she is privy to certain information required by the court
to arrive at a just decision. This is in light of the fact that sexual offences are committed in secrete.
Thus, a child witness provides important evidence or the piece of the puzzle that tends to connect the
accused to the offence. For instance, the evidence of the victim usually places the accused at the scene
which may enable the court to make a finding of odd coincidence or make a finding that the accused had
an opportunity to commit the crime in question. Through the evidence of the child witness, the court is
likely to find corroborative evidence though not corroborative as a matter of strict law.77
The quality of the child‟s evidence is dependent on a number of interacting factors, namely the child‟s
age, competency, educational and family background, cognitive ability and perceptions of the court
process. Other factors include the setting in which evidence is given being (open court, videotaped
evidence or closed-circuit television); and the personnel involved in the court process.
In accessing evidence from the child witness, an understanding of the child‟s developmental, cognitive
and language abilities is of paramount importance. Children change physically, emotionally and
75
Penny. Ward; Mutengo Consulting; Regis M. Gwaba, “Children’s Rights in Zambia: A Situation Analysis.” Save the
Children, November, 2005.
76
Butegwa. F, “Factors affecting the Legitimacy of Human Rights Principles in the Protection of Women” paper
presented at the Workshop on Gender and Human Rights, UN Conference on Human Rights, June 16-17, 1993)
(unpaginated).
77
Wonani, C. “Sexual and Gender Based: The Zambian Case.” Women in Law and Development in Africa (WILDAF),
2008.
intellectually as they progress through different stages of development. Child development is viewed as a
progression through generally accepted milestones. It is important to appreciate the developmental
milestones and understand the general characteristics of each age period in order to determine the child‟s
ability to supply information about events witnessed or experienced. Therefore, in this chapter the
child‟s development, that is, cognitive development, memory, language abilities and suggestibility are
discussed to gain an understanding of children as witnesses and the veracity of their evidence.
4.2. COGNITIVE DEVELOPMENT

According to Munsaka and Matafwali, different scholars define cognitive development using a variety of
words however, these definitions boil down to Woolfolk‟s definition that cognitive development refers to
changes in thinking. 78In other words, cognitive development involves understanding how human beings
use their minds to effectively deal with their environment. Cognitive development in children is important
as it helps explain and clarify the inconsistencies and confusions that arise in a child‟s testimony. For
example, children do not understand kinship relationships. Where a crime has been committed in a four
year old child‟s presence, the child would be able to identify those present, such as (sister, mother,
grandmother, grandmother‟s sister etc) only by name and not by relationship. Therefore, the credibility
of such a child witness would be compromised by developmentally inappropriate questioning.
Jean Piaget, a Swiss Psychologist is one of the most renowned cognitive development theorists. Jean
Piaget (1896-1980) studied the way children reasoned. He noticed that children of a younger age
answered questions qualitatively differently from those of an older age. This suggested to him that
younger children were not less knowledgeable, but gave different answers because they thought
differently. Piaget proposed that development proceeded through four stages: sensorimotor, pre-
operational, concrete, and formal. Each stage is a progression defined by the mergence of a different
level of thinking, that is, an increasingly sophisticated form of knowledge. Each stage develops into the
next, involving the integration and incorporation of earlier ways of thinking.
According to Piaget, all children pass through the stages of cognitive development in the same order,
without any stage being skipped. Piaget observed that some children may reach a particular stage more
quickly or more slowly, depending on the child‟s environmental experiences.
4.3. LANGUAGE DEVELOPMENT

The legal process involves the ability to communicate in accordance with particular and specific
78
Piaget, J. The Moral Judgment of the Child. London: Routledge and Kegan Paul Limited, 1968.
requirements.79 A child witness, thus, needs to communicate in a manner that is understood by the adult
listeners. To give evidence successfully, a child must have reached a certain level of intelligence,
vocabulary and conversational skill.
Children from the age of two years begin to produce sentences which at least contain two words mainly a
combination of nouns, verbs and adjectives without any conjunctions. For instance, sentences such as
“mummy sleep,” “mummy eat,” “mummy sit.” At age two and a half years, sentences exceed two words
and include more connective words, adjectives and pronouns.80 At age between three and five years,
grammatical structures in a child‟s speech become more sophisticated and use is made of different tenses,
singular and plurals as well as the inclusion of more articles and conjunctions. Negatives, questions and
passives are also gradually introduced. However, a child may understand certain words differently from
an adult. Research has shown that even when a child thinks he/she understands a particular word it may
not have the same meaning as understood by adults. For instance, the word “minor” to a child means
someone who digs coal while “parties” are where one gets presents. If an adult misjudges the child‟s level
of knowledge, this can create a great deal of confusion in communication.
A Zambian expert on this subject of language development explained that for most children at three years,
language is not developed and is not coherent. However, at three years, girls can say something (though
not in great detail) as girl children develop language faster than boys. At three years, it might be too early
for the child to give their testimony but they can use telegraphiclanguage.81
Therefore, in a courtroom set up, it is important to know that children have difficulties answering
questions such as when, who, what, why and how. Initially children can only answer what, who, and
where questions, because these questions require concrete information they can understand – agents,
objects and locations.82 However, with regard to when-questions, a child under the age of eight will have
difficulty providing accurate information. Though the understanding of time and date is very limited in
young children, they are however, able to say if an event took place during the day or at night or if it is
related to an important event such as a birthday or Christmas. Before the age of eight or 10, children are
unable to answer the why questions as children have difficulties understanding evaluative questions, that
is, those which require the child to think and interpret facts. Due to this difficulty in evaluating the data,
79
80
81
82
this may, in fact, result in younger children being better witnesses, since they report details of what they
witnessed without evaluating them, while adolescents and adults may commit errors because they think
about the details.
Lawyers‟ verbal skills are very well developed and therefore, this skill sometimes creates a significant
barrier to effective communication with children. Lawyers need to be aware of children‟s limited
language abilities and to choose their words with great care when interviewing children.83 For effective
communication with children, it is imperative that interviewers such as lawyers and prosecutors are
knowledgeable about the stages of language development and of common errors in language usage. In
this vein, simple language of child appropriate age should be used to communicate with child witnesses.
It is important to note that children also use emotion to communicate. Munsaka and Matafwali have
explained that anger is an emotion that children use to express themselves. They observed that during
infancy, anger or aggression is expressed through displays of tantrums while children in early childhood
are able to express their anger more explicitly. This is mainly as a result of the children‟s ability to use
language to express their feelings. A child can, for instance, verbally express a threat to another child who
has made him/her angry. Through the words that are used and the body language thereof, the anger of the
child will be clearly expressed.
Another emotion that is commonly expressed by children in early childhood is fear. Common fears at this
stage include fear of being left alone, fear of loud banging sounds, fear of dark places, fear of unfamiliar
people, and so on, and the children will explicitly make the fears known. Therefore, a child victim is able
to exhibit fear of the accused person in thecourtroom. It is imperative for the court to note and record the
kind of emotion expressed by the child victim in the courtroom. Therefore, as children develop language,
they also use it to express emotions. It can then be appreciated that children have emotions such as anger
and fear. As these are imbedded in children, the anger and fear in a child could become pronounced when
defiled. The child becomes angry with herself and the people around her and also becomes very scared of
people around her especially fear of the accused person. These emotions affect the children‟s well- being
and development for the rest of their lives.
Therefore, it is quite clear that children can be good witnesses provided they are asked age appropriate
questions which they understand well. This is because when questions are not age appropriate, it is a
83
Muntlngh, L. “Evaluation Report on Child Justice in Zambia,” (Lusaka: UNICEF, 2007)
source of confusion and children tend to appear as though they are unreliable witnesses. Therefore, the
court players being the adjudicators, lawyers and prosecutors need to appreciate the type of questions
appropriate for child witnesses in order to avoid confusion or failure by a child witness to correctly
answer questions during cross examination.
4.4. MEMORY
Most scientists agree that it is very useful to describe human memory as a set of stores which are „places‟
to put information, plus a set of „processes‟ that act on the stores. 84 Children do have memory that is not
yet developed and have difficulties in communicating with adults due to their stage of language
development as earlier discussed. Despite the limitations in language development in children, for
purposes of the legal process, once a child has perceived an event, he/she must be able to remember and
report the information. While children may be able to perceive an event accurately, they have difficulties
translating this perception into words. This is because the event may be stored in the child‟s memory in
some representational form but the child may not have the ability to communicate the content of the
memory because the child does not have the necessary vocabulary.85 In order to be effective witnesses,
children must be able to demonstrate their retention of material in one of the three ways: recognition,
reconstruction and recall.
4.5. WHETHER CHILDREN’S MEMORY IS AFFECTED BY SUGGESTIONS IMPLANTED

BY ADULT INTERVIEWERS
Suggestions implanted by adult interviewers into children‟s memory which is also known as children‟s
suggestibility has been a focus of research since the turn of the Twentieth Century. Suggestibility relates
to young children‟s memories and the degree to which their memory and reports can be modelled by
suggestions implanted by adult interviewers. This brings into play the encoding, storage and retrieval
which can be influenced by a range of external factors unwittingly incorporated into memory, such
as subtle suggestions, expectations, stereotypes, leading questions as well as explicit bribes, threats and
other forms of social inducement.86
There have been many studies that examine the influence of a single misleading suggestion on children‟s
recall of an event; generally, these studies indicate that in a variety of conditions, young children are more
suggestible than adults with pre-schoolers being more vulnerable than any other age group. Researchers
84
85
86
Muller, K. and Hollely, K. Introducing the Child Witness. Port Elizabeth: Printrite, 2000.
have developed paradigms to examine children‟s reports of salient and personally-experienced events that
involve their own bodies.87 No longer do older maxims hold that when children are inaccurate in their
reporting about such events it is because they make errors of omission (i.e. they fail to report important
events) rather than errors of commission (i.e. they insert inaccurate details). Rather the newer research
indicates that under certain conditions, young children also make errors of commission about personally
experienced events involving their own bodies. There has also been a number of studies which have
shown that children as young as five can answer objective questions about simple events just like the
adults and that psychological research has shown that children are not as suggestible as manyadults would
believe them to be. Some factors affecting suggestibility relevant to this dissertation are: the questioner‟s
status and repeated questions.
4.5.1. The Questioner’s Status

The interviewers are supposed to be neutral and not engage in “interviewer bias.” This is because when
an interviewer is biased due to previously decided beliefs about past events in eliciting certain
information without paying attention to other possible outcomes, the interviewer will proceed to mould
the interview to elicit statements from the child that are consistent with these prior beliefs. The
interviewer‟s bias would then affect the child‟s entire evidence which would then not be accurate.
This is very important in the Zambian courtroom. Although the court players, that is, the lawyers and
prosecutors are officers of the court with a duty to assist the court arrive at a just decision, the reality is
that the lawyer and prosecutors have a role of their own. While the prosecutor‟s role is to prove that the
accused is guilty beyond all reasonable doubt, the defence lawyer has a duty to show the innocence of the
88
accused by discrediting the evidence for the prosecution. As a result, when a child witness is being
interviewed by a prosecutor or cross examined by a lawyer during trial, there is a tendency to ask
questions that are biased towards the outcome either party seeks to achieve. Effectively, this means that in
cross examination a child is pitted against an expert trial lawyer.
4.5.2. Repeated Questions

The repeated questioning of a witness on the same facts makes the witness feel intimidated thereby
projecting answers in the manner desired by the interviewer. This is because repeated questioning can
amount to suggestion especially where the interviewer has misleading information. However, repeated
87
88
questioning can amount to rehearsal which can help in recall of the evidence. Basing on the theory on
degree of suggestion as earlier discussed, it is quite clear that children are credible witnesses whose
evidence is reliable. Psychological research has shown that children as young as five years of age can
answer objective questions about simple events just like adults and that children, are not as suggestible as
adults would believe them to be. As can be seen from the studies conducted on the degree of
suggestibility, when children are left to narrate the events as perceived, there is no reason for
apprehension as the evidence which is free from interference is accurate.89
In view of these studies, there is no justification for preventing young witnesses from testifying in court
simply because they have failed the test required for them to give sworn testimony. As has been shown,
evidence free from interference is accurate. The danger comes in when a lawyer for an accused puts
leading questions to the child which area distortion of the facts that may result in distortions in the child‟s
testimony. It is therefore, important that adjudicators in the Zambian courts ensure that they take control
of their courtroom to prevent the distortion of the child‟s evidence through cross examination even though
under the common law system, the function is an umpire rather than an inquirer. In the Zambian court
system, defence lawyers are at liberty to ask any questions whether leading or not, provided they are
relevant; more especially where the lawyer has misleading information as narrated to him by his client,
the accused person. In the courtroom, lawyers being interviewing persons and officers of the court need to
be neutral as they undertake cross examination of a child witness to ensure that the testimony of the child
witnesses is accurate.
4.6. EFFECT OF CROSS EXAMINATION ON THE CHILD’S TESTIMONY

As earlier discussed, most defilement victims are of tender age, that is, the majority being aged between
zero and 10 years. As such, it is important to note that young children usually do not possess sufficient
intelligence and do not appreciate the nature of an oath to enable them give sworn testimony. However,
in the quest to receive evidence from the child victims, trial courts do receive sworn testimony of the
children. It is therefore necessary to ascertain the effect of cross examining child witnesses in order to
understand whether child witnesses are able to handle the pressure that comes with putting them on oath.
For instance, in the case of Akatama Wamunyima v The People, 90 the child was aged three years old and
she gave sworn testimony. This was after the court made a finding that the child had sufficient
intelligence to give sworn testimony.
89
90
SCZ Appeal No. 583/2013.
Also, in the case of Teddy Shikabita v The People,91 the child was aged four years and she was put on
oath. Trial courts are aware of the importance and need for the child victim to testify. This is because it
is indisputable that the evidence of a defilement victim is crucial to assist the court arrive at a just
decision. Magistrates must accommodate this. Therefore, in an effort to ensure that justice is upheld for
the victims through convictions of the offenders, the practice now as demonstrated above is that
magistrates tend to put on oath very young victims ofdefilement such as those ranging between three
to nine years. Meanwhile Beatrice Matafwali, a psychological child expert said at three years, language is
not developed and is not coherent. Also, that at three years, it is too early for a child to testify in a trial.
Further, this position was confirmed when the author interviewed one of the magistrates at Lusaka
Subordinate Court. In the interview, the magistrate stated that with the amendment to Section 122 of the
Juveniles Act, the magistrate admitted putting on oath young witnesses ranging between four and seven
years as long as he was satisfied that the child understood the duty to speak the truth and possessed
sufficient intelligence to adduce sworn testimony.92 The magistrate further stated that many children had
language limitation or had limited vocabulary hence tended to use short phrases and short sentences.
The position as explained by the magistrate is in accordance with Section 122 of the Juveniles Act cited
earlier in this dissertation. As earlier discussed, Zambian courts have no discretion to receive unsworn
testimony of the child witness who does not meet the test of adducing sworn testimony. Therefore, the
challenge by the courts in upholding the rights of the child emanate from Section 122 of the Juveniles Act
as regards the restriction on the non-reception of unsworn testimony of child witnesses so that courts can
only receive sworn testimony.
Having given sworn testimony, the young witnesses are later cross examined either by the accused or by
defence Counsel. During the interview, the magistrate stated that due to the age of the child coupled with
limited understanding and language limitation, during cross examination child witnesses tend to get
mixed up or confused. He noted that children usually become inconsistent in their testimony and tend to
give inconsistent answers as they tend to answer questions just for the sake of it while at times answer just
to avoid further questions. He observed that at times the evidence even gets distorted. It must be noted
that while most adults do get confused during cross examination, it becomes worse for the child thereby
making the case disastrous for the prosecution. Meanwhile, it is important for the child witness to be
consistent in her testimony. This is crucial for the interpretation of the evidence by the court. When
interviewed, Matafwali opined that a child should not be made to take oath as they are too young to
91
SCZ Appeal No. 543/2013
92
Muller, K. and Hollely, K. Introducing the Child Witness. Port Elizabeth: Printrite, 2000
understand it.
In the Akatama Wamunyima case, due to the tender age of the victim, it is quite common to have inconsistencies in
the child‟s evidence during cross examination. The inconsistencies in the child‟s evidence mostly tend to go in
favour of the accused i in which case the accused is acquitted even when it should have been a conviction.
However, in the Akatama Wamunyima case,93 the appellant was convicted and sentenced to 15 years
imprisonment with hard labour by the High Court. The appellant appealed to the Supreme Court against
both conviction and sentence. When the matter came up for hearing of the appeal, the appellant withdrew
the appealwhich meant that he was to serve the sentence imposed on him by the High Court.
According to Muller, cross-examination is not only traumatic for children, but also results in inaccurate
evidence. The child is questioned in a hostile environment, often about very intimate and emotionally
laden events. Cross examination, according to Davies, is the strategy of words and actions which the
advocate employs during the presentation of evidence by the opposition that serves to cast doubt upon the
opposing party‟s case. Brennan and Brennango further and argue that cross-examination is “geared
tactically to upset the credibility of a witness.
In the case of Shawaza Fawaz and Prosper Chelelwa v The People 94 the Supreme Court held, inter alia,
that:
Cross-examination cannot always shake the evidence of untruthful witnesses in every
respect; it is sufficient to show the unreliability of a witness if he is shown to havetold an
untruth about an important part of his evidence.
The Shawaza Fawaz case shows that once cross examination has shaken a witness to an extent that the
witness‟ evidence is rendered unreliable, the evidence of such a witness is interpreted by the court as
being untruthful. The Shawaza Fawaz case cited above also applies to child witnesses. Therefore, cross
examination has the potential of confusing very young defilement victims into contradicting themselves
thereby raising doubt in the mind of the court on the veracity of their testimony which doubt then operates
in favour of the accused person. Meanwhile, the child‟s testimony is an important piece of evidence in a
defilement case. This isbecause the evidence of the child tends to bring out an important piece of evidence
that tends to connect the accused to the offence. Muller observed that in cases of abuse, the child is very
often the only witness to the incident, and a finding of non-competence will, in effect, amount to an
acquittal. For instance, in the Akatama Wamunyima case cited earlier, in her evidence in chief, the child
testified that the appellant did bad manners to her on her private part using an „insect‟ which he removed
93
94
(1995) S.J
from his trousers. In cross examination, the child testified that the appellant made her lie down on the bed
in a cabin and that he was standing when doing bad manners to her. She later changed and said the
appellant got on top of her when doing bad manners.
Further, in the case of Teddy Shikabita v The People,95 the child was four years old. She gave sworn
testimony and was later cross examined. In the child‟s evidence in chief at page 15 of the judgment, this is
what she said:
“Chi Teddy got a knife from his trousers and he cut me using it. He cut me in the house on the bed.
He cut me on my private part. I did not feel good when he cut me. When cutting me he was standing.
I was sitting on the bed after cutting me. I did nothing and I then told my grandmother that Chi
Teddy had cut me. Thereafter we went to the hospital. I was given medicine at the hospital. The
doctor checked on my private part.”
In cross examination, at page 16 of the Judgment, the child said: “You slept with me.” Looking at the
evidence in chief and cross examination, there is a visible shift from the accused cutting her while he was
standing and while she was seated. In cross examination, the child does not refer to her earlier testimony
but said something that appears to be totally different from her earlier statement that the accused slept
with her.
4.7. INCONSISTENCIES IN THE CHILD’S TESTIMONY AND THE COURT’S EVALUATION

It is believed that cases of sexual abuse are usually difficult to adjudicate especially when the victim is of
very tender age. This is because by its very nature, sexual abuse is committed in secrete with the child in
most cases being the only eye witness. The younger the victim, the more limited the vocabulary or verbal
competence of the child witness. Therefore, adjudicating a case of child sexual abuse very often comes
down to a decision by the presiding officer as to which party, between the accused and the child witness,
is telling the truth.
Evaluation of credibility can be done in one of two ways, either through psychological lay persons or
through a psychological expert. Of importance to this dissertation is the evaluation by psychological lay
persons. The psychological lay persons are judges, magistrates and prosecutors. This evaluation is done
by observing the child while the child is being questioned, and piecing together any additional
information relating to the child‟s personality, cognitive abilities and reputation in order to form a
composite approach to credibility. This is known as a social judgment or impression formation task.
In its evaluation of the evidence, the court does evaluate the inconsistencies in the child‟s testimony
which usually arise during cross examination as earlier discussed. Inconsistencies have an effect on the
95
credibility judgment of the witness. With this inconsistency in the child‟s testimony, doubt is caste in the
mind of the court as to the veracity of the child‟s testimony. The law provides that any doubt in the mind
of the court should be resolved in the favour of the accused. In certain instances, the inconsistencies in the
child‟s testimony may lead the court to conclude and record that the demeanour of the child is of a
witness not telling the truth.
In the case of Machobane v The People, 96 it was held, inter alia, that:
Demeanour of a witness is an item of evidence which must be included in the record or at least the
judgment of the trial court and the absence of any evidence to support an adverse finding on
demeanour in the record or judgment is a serious irregularity.
The Machobane case shows that demeanour of a witness is a serious consideration in a trial. Once the
court forms the view that the witness‟ demeanour is of one not telling the truth, such a view is supposed to
be recorded on the court record. Such a record is quite fatal to the case as such a finding is a finding of
fact which the appellate court cannot upset.
In the case of Eddie Christopher Musonda v. Lawrence Zimba, 97 where at page J28 the Acting Chief
Justice Lombe Chibesakunda said:
“Also it is well established principle that the learned trial Judge is a trier of facts, he has the
advantage of observing the demeanour of witnesses to determine as to who was telling the
truth in the trial. Bearing that in mind, we cannot upset his findings.”
The Christopher Musaonda case relates to trial courts. In defilement cases, the trial court is the magistrate
who has the advantage of observing the demeanour of the witness. When the magistrate records the
demeanour of the witness, the High Court and the Supreme cannot upset such a finding. Further in the
case of Shawaza Fawaz and Prosper Chelelwa v The People 98 the Supreme Court held, inter alia, that:
Not sufficient for trial court to find that prosecution witness probably spoke the
truth. The evidence of the witness must be accepted beyond reasonable doubt.
In the Shawaza Fawaz case, the court is precluded from speculating as to the veracity of the witness‟
testimony but accept it when the court must be satisfied that the witness spoke the truth beyond
reasonable doubt. When the court finds that the witness was not telling the truth, the court is then obliged
to record the demeanour of the witness as being untruthful as held in the Machobane case. Therefore, the
inconsistencies in the child‟s testimony are fatal to the case especially where the court records the
96
(1972) Z.R. 101
97
98
(1995) S.J
demeanour that the child is not a truthful witness. Therefore, the inconsistencies have the potential to
lead to an acquittal based on a technicality and not on the innocence of the offender. As a result, justice
for the child victim is eroded. This is the more reason children should simply be allowed to give unsworn
testimony in order to avoid inconsistencies that arise in cross examination.
On this issue the researcher interviewed one magistrate who handles child witnesses in defilement cases
and other cases and is at the same time a Juvenile Court. The magistrate was called upon to shed more
light on the practice adopted by Magistrates with regard to the reception of the evidence of child
witnesses. The magistrate observed that the practice of receiving unsworn testimony of child witnesses
was useful and posed no challenges or difficulties; neither to the accused nor the child witness. Therefore,
before the amendment to the Juveniles Act, children were allowed to simply narrate a short story to the
court unhampered by the dangers that arise as a result of cross examination as is currently the position.
4.8.POSSIBLE EFFECTS OF THE INCONSISTENCIES ON THE CASE
With the background that Zambian courts are permitted to only receive sworn testimony of child
witnesses, it should be appreciated that when young children are cross examined, they become
inconsistent in their testimony as has earlier been shown. Such inconsistencies in a child‟s testimony are
quite common and the magistrate would have to make sense of what the child is saying which goes to the
credibility of the child as a witness. The court then has a duty to consider such inconsistencies when
evaluating the evidence received in totality. In the Teddy Shikabita case cited earlier, the child witness
was four years old at the material time and she was inconsistent in her testimony as highlighted above.
The court opted to make sense of what the child said as elaborated below. This practice however, has
no legal backing. The court‟s duty is to interpret the evidence as it is as opposed to deciphering what
the witness was trying to say. Hence in the Teddy Shikabita case,99 the court determined what the child
was trying to say by restricting itself to evidence given in chief as opposed to the evidence of the child as
a whole, a procedure which has no legal backing. At page 24 of the Judgment, the trial court had this to
say:
“The child identified the accused and said he got a knife from his trousers and cut her private part.
She said that this happened in the house and on a bed.” The magistrate convicted the accused on
the totality of the evidence before it and committed the accused to the High Court for sentence. In
the High Court the accused who appeared under cause No. HPS/65/2013 was sentenced to 35 years
imprisonment with hard labour.
99
The convict appealed to the Supreme Court against conviction and sentence. When the matter came up for
hearing, the appellant withdrew the appeal. The Supreme Court dismissed the case and the 35 years
imprisonment with hard labour imposed by the High Court judge was not disturbed. Other than the
approach adopted by the court in the Teddy Shikabita case, the magistrate explained during the interview
that on his part, due to the inconsistencies, he considers the demeanour or credibility of the child witness
and if he finds that the child is lying, the finding operates in favour of the accused, hence results in an
acquittal. However, the magistrate noted that at times despite the inconsistencies, he considers all the
evidence before him and the demeanour of the child witness and if he finds that the child is telling the
truth, he then takes the evidence of the child into account despite the inconsistencies.
The magistrate however, observed that due to the inconsistencies that arise as a result of cross
examination of child witnesses, there is a likelihood or danger of having more acquittals at magistrate‟s
level as courts would find the evidence of a child witness in question unreliable. This would be as a
result of lack of a standard procedure with regard to how courts should interpret inconsistent evidence of
child witnesses.
It was his observation that due to absence of the standard or special procedures with regard to
interpretation and consideration of a child‟s testimony, courts have a duty to treat the evidence of a child
witness on oath in the ambit of the ordinary or general rule regarding evidence of witnesses. This poses
more danger as all inconsistent evidence of child witnesses will be discounted and not relied upon. In
discounting inconsistent testimony of a child witness, the magistrates are backed by law.
In the case of Sipali Chibozu and Chobu v The People 100 it was held that:
The failure by the learned judge to notice or explore the inconsistency in the prosecution evidence
constitutes a serious misdirection.
The Sipali Chibozu case entails that trial courts are under obligation to notice or explore the
inconsistencies in the evidence of the witnesses for the prosecution. This case also applies to
inconsistencies in the accused‟s evidence. Failure by the trial court to notice the inconsistency is a
misdirection which could be fatal to the prosecution case. Further, where the inconsistencies reveal
evidence which tends or seems to support the accused person, courts are called upon to resolve such
doubts or inconsistencies in favour of the accused.
In the case of Mutale and Phiri v The People,101 it was held that:
100
(1981) Z.R. 28
Where two or more inferences are possible, it has always been a cardinal principle of criminal law
that the court will adopt the one that is more favourable to an accused if there is nothing to exclude
that inference. Where there are lingering doubts, the court is required to resolve such doubts in
favour of the accused.
According to the Mutale and Phiri case, where there is more than one inference with nothing to exclude
such inference and there are lingering doubts on material facts, the accused is entitled to an acquittal. This
is because where there are lingering doubts, trial courts usually make a finding that the prosecution has
failed to prove their case against the accused beyond all reasonable doubt.
In the case of Mwewa Murono v The People ,102 the Supreme Court held, inter alia, that:
1. In criminal cases the rule is that the legal burden of proving every element of the offence charged,
and consequently the guilt of the accused, lies from beginning to end, on the prosecution.
2. The standard of proof must be beyond all reasonable doubt.
The Mwewa Murono case entails that it is the duty of the prosecution to prove the case against the
accused beyond all reasonable doubt. Proving a case beyond reasonable doubt means the prosecution
should prove each and every element of the charge. In the Mwewa Murono case cited above, the
Supreme Court was of the view that the case had not been proved beyond all reasonable doubt and
therefore, the conviction and sentence were quashed. The above cited casesalso apply in defilement cases.
Thus, inconsistencies in the testimony of a witness have a negative effect on the credibility of a witness.
And as earlier observed, where credibility of a witness is in question, it has the potential of raising doubt
in the mind of the court. Therefore, the court would be entitled to conclude that the prosecution has failed
to prove the case beyond all reasonable doubt thereby acquitting the offender.
Looking at the inconsistencies in the children‟s testimonies and the manner in which the trial courts are
salvaging the inconsistent evidence of child witnesses, it is clear that placing on oath very young
witnesses has posed new challenges. However, the law is very clear that where a witness is inconsistent,
it negatively affects the demeanour of a witness and as provided by law, courts are called upon to record
the demeanour of the witness which may be detrimental to the case. The demeanour of a witness is very
cardinal and once the court takes note especially where the witness is inconsistent, the demeanour usually
arrived at is of a witness who is not telling the truth.
In the case of Haonga v The People,103 the Supreme Court held, inter alia, that:
101
(1995-97) Z.R. 227
102
(2004) Z.R. 207
103
(1976) Z.R. 200
Where a witness has been found to be untruthful on a material point the weight to be attached to the
remainder of his evidence is reduced; although therefore it does not follow that a lie on a material
point destroys the credibility of the witness on other points (if the evidence on the other points can
stand alone) nevertheless there must be very good reason for accepting the evidence of such a
witness on an issue identical to that on which he has been found to be untruthful in relation to the
accused.
The Haonga case shows that when a witness has been found to be untruthful by the trial court, there must
be very good reasons for accepting the truthful portions of the evidence of such a witness. Otherwise, the
evidence of such a witness is discounted in its entirety. Further, in the event that such a witness‟
testimony is found to be untruthful on material evidence, the weight attached to the rest of the evidence is
reduced. Muller explains that adjudicators have consciously or unconsciously devised various criteria that
are perceived as indicative of truth or lies in distinguishing between truthful and false statements. Facial
expressions or demeanour are believed to be indicators of deception. This is the basis of confrontation in
the criminal justice system, that is, a witness must testify in the presence of the accused, so that the latter
can observe the witness‟ demeanour. The demeanour of a witness is the main emphasis in the
courtroom. The face and eyes and certain facial expressions are perceived as indicative of deception.
The tone of the witness‟ voice is believed to reveal truth.
On the part of superior courts, their decisions or judicial precedents bind the lower courts. Thus, in order
to reduce the high acquittal rate in defilement case, it is important for the superior courtsand trial courts to
understand that child witness‟ testimony cannot be placed at the same footing with adult witnesses. This
is because as has been demonstrated earlier in this dissertation, the ability of a child witness to testify is
closely associated with the developmental stage or age at the material time. Usually, due to their tender
age, children do not give their testimony in a coherent manner like the adults. Their evidence is mostly
illogical and inconsistent. However, this is not an indication of false testimony on their part as may be the
case for an adult witness. The inconsistencies and illogical manner in which children give their evidence
is an indicator of truth as explained below.
As demonstrated above, children are credible witnesses as the basis for casting doubt on their evidence is
not supported by research but merely based on erroneous assumptions. In judicial proceedings the
credibility of a witness has always depended on evidence of specific instances of conduct which are
assumed to be probative of the truthfulness or otherwise of the witness. These assumptions,
according to Undeutsch, have their roots in public opinion and, therefore, cannot form a reliable basis for
the assessment of the truthfulness of a particular statement.
4.9. TRUTHFUL EVENTS VIS-À-VIS INVENTED EVENTS
It is a fact that there are real or truthful occurrences and invented or false events. There has been
research conducted in this area. One such notable researcher is Undeutsch. According to him, since truth
exists and falsehood has to be invented, the reasonable deduction is made that truthful accounts of events
experienced by the witness differ in certain characteristics from those that are entirely or partially
invented. This has been referred to as the Undeutsch hypothesis.104 The characteristics which assist in
distinguishing between truth and falsehood are known as „criteria of reality‟ or „reality criteria‟ and
have been developed to form a key for determining theveracity of statements.
The evaluation of statement credibility, known as Statement Validity Analysis (SVA) requires the
expert to approach the assessment of the child‟s credibility as a scientific problem in the course of the
interview. Forensic research has shown that truthful accounts of self-experienced, real occurrences
display certain fundamental criteria. There are 19 different criteria, known as reality criteria, which are
organized into five categories.
4.10. CONCLUSION
Child witnesses are very key witnesses in cases of defilement. Once a child has perceived an event and
encoded it in his/her memory, the child is able to recall and state what he/she perceived provided the
questioner is not bias and questions are not repeated deliberately in order to confuse the child witness.
Further, although it is commonly believed that children are more suggestible than adults, psychological
research has shown that children are not as suggestible as many adults would believe them to be.
In Zambia, however, despite the abilities of the child witness discussed above, the practice is that courts
do not receive the evidence of children who according to the court, do not appreciate the duty to speak the
truth and fail to show that they have sufficient intelligence to give sworn testimony. As there is no
scientific explanation or research findings to support such practice, it is erroneous and a lack of
understanding of children and their ability to testify. It has also been shown that child witnesses have
difficulties in expressing themselves and are usually inconsistent in their testimony due to their tender age.
If the inconsistencies go to the root of the case, doubt is cast in the mind of the court which operates in
favour of the accused. Doubt on the veracity of a child‟s testimony is based on the fact that the
testimony of children is not presented in a logical and coherent manner. However, forensic research has
104
Penny. Ward; Mutengo Consulting; Regis M. Gwaba, “Children’s Rights in Zambia: A Situation Analysis.” Save the
Children, November, 2005.
shown that truthful accounts of self-experienced, real occurrences while making sense have unexpected
complications, unstructured production and are somewhat disorganised, unlinear and unconstrained which
are indicators of credibility. Kohnken explains that witnesses, especially children, will rarely have the
cognitive capacity to report an invented story in a disorganised way with fragments of the events scattered
throughout the statement. Further, it has been shown that when a child victim, in her testimony,
spontaneously corrects her own testimony; or admits lack of memory; or raises doubts about her own
report; self-deprecation of the witness; and pardoning the perpetrator are behaviours understood as
indicators of credibility. It is imperative for adjudicators to understand the nature of the evidence of
child witnesses and appreciate the indicators of credibility.
Therefore, in view of the current law, it is important to find ways of limiting the inconsistencies by
allowing children to simply narrate what transpired without the need for them to undergo cross
examination. This is because current law and judicial precedent have shown that in relation to
inconsistencies in the testimony of witnesses, whether children or adults, the interpretation or analysis is
the same that the witness is probably lying without necessary distinction for children. Considering that
the interpretation of the child‟s testimony with regard to inconsistencies is placed on the same footing as
adult witnesses and is certainly not in the best interest of the child as envisaged in the CRC.
CHAPTER FIVE
OVERVIEW OF THE RESEARCH FINDINGS, SUMMARY AND RECOMMENDATIONS ON

DEFILEMENT LAWS.
5.0. INTRODUCTION
This study sought to determine whether the rights of girls who are defiled are protected by the courts. The
question that was being determined was whether the law and the courts are upholding the rights of
defilement victims. In so doing, existing legislation on criminal law, procedural requirements and the courts
were examined with a view to ascertain whether the rights of the victims are upheld and protected.
Therefore, the rights of a child with regard to defilement were highlighted with reference to provisions as
contained in international instruments and domestic legislation. Further, the dissertation sought to
determine the challenges courts face, if any, in its duty to protect the rights of defilement victims.
5.1. FINDINGS
In this dissertation, it has been demonstrated that in theory international instruments such as the CRC has
progressive provisions on the protection of children‟s rights. It was the intention of the formulators of
international instruments for State Parties to use the law in the home countries by taking necessary steps for
the law to be part of domestic legislation. Therefore, State Parties who ratified the CRC have an obligation to
implement and domesticate its provisions by bringing domestic legislation in conformity with the provisions
of the CRC. Zambia ratified the CRC as was shown earlier in this dissertation and by ratifying she has an
obligation to domesticate the rights provided in the CRC into its domestic law for it to be of relevance to
Zambian children. Until this is done, Zambian children will be subjected to laws which are in effect
inconsistent with provisions of the CRC thereby depriving the rights of defiled children.
It has been demonstrated that Zambia has made strides in domesticating and implementing the provisions of
the CRC. However, in its implementation, Zambia has focused on the child offenders without considering or
including the child victims in its programmes and in the formulation of the law. This has left the victims
vulnerable and discriminated against by virtue of the laws being introduced and through judicial
interpretation of the law as well as through trial procedures in the courts. According to the spirit of the CRC,
the law ought to be fair to all children in its application and in its effect without any trace of discrimination.
Also, having analysed domestic legislation relating to criminal law and procedural requirements during trial,
it was evident that while the CRC and the Constitution of Zambia provide for freedom of expression to all
persons without limitation or discrimination other than for purposes of public security, the Juveniles Act has
however, taken away this rights from children who do not pass the test to adduce sworn testimony. It has
been concluded that the restriction on free speech emanating from the procedural requirements for testifying
or giving evidence in court for children is a violation of the child‟s rights as provided in the CRC and as
guaranteed in the Constitution of Zambia. Further, looking at the provisions in the Penal Code and Juveniles
Act which have a negative bearing on children, it is clear that they are a departure from the mandate Zambia
undertook of domesticating the CRC.
The Juveniles Act‟s provision for an acquittal of the offender in the absence of corroboration has been found
to be a challenge for the courts in its quest to provide justice in defilement cases as corroborative evidence is
usually not available. It has been concluded that the requirement for corroboration prevented convictions in
many defilement cases thereby eroding justice for the victims.
The Juveniles Act and the Penal Code are therefore inconsistent with the provisions of the Constitution
guaranteeing children‟s rights. Until the said provisions in the two said statutes are nullified to the extent of
their inconsistency with the Constitution, the statutes in question will remain law in Zambia and applied by
Zambian courts. Because the law in the Penal Code relating to defilement and the law in the Juveniles Act
relating to the reception of sworn evidence of child witnesses by the court has not been challenged in the
courts of law by relevant authorities, the rights of children guaranteed in the Constitution continue to be
denied by the courts.
It has been shown that most children fail to meet the test of giving sworn testimony as provided in the
Juveniles Act. However, due to the restriction on the reception of unsworn testimony of child witnesses,
many magistrates are putting on oath very young witnesses in a quest to receive their testimony. As a result,
during cross examination, many child witnesses become inconsistent in their testimony. This is because
cross examination has an effect of confusing child witnesses thereby making them become inconsistent.
Also, that once a child gives inconsistent testimony, it has a negative bearing on the credibility of the child as
a witness as the court is required to record the demeanour. According to Zambian law, once the credibility of
a witness is questioned, doubt is cast in the mind of the court. When this happens, the law provides that any
lingering doubt in the mind of the court operates in favour of the accused which usually leads to an acquittal.
With regard to the analysis and interpretation of the inconsistencies and demeanour of a witness by the court,
there is no distinction between a child and an adult witness. For an adult, inconsistencies are deemed as an
indicator of lies. However, this dissertation has demonstrated that for a child witness, psycho-social
approaches have shown that inconsistencies in a child‟s testimony are an indicator of truth. Therefore, the
courts are incorrectly interpreting the demeanour of child witnesses thereby erroneously acquitting
perpetrators of defilement. This is another avenue of the many acquittals in defilement cases thereby making
the courts fail in their core duty of protecting the rights of defilement victims.
It has also been demonstrated that children are good and credible witnesses. Psycho-social approaches have
shown that children do not have the ability to analyse an event but simply report it the way it was perceived.
Also, that in the absence of suggestibility, when children are simply allowed to narrate an incident, they are
as credible as adult witnesses. Therefore, in view of the findings by psycho-social approaches on the
credibility of child witnesses, it is has been concluded that there is no justification for restricting child
witnesses from giving unsworn testimony and also, that there is no justification for cross examining child
witnesses. While cross examination is meant to test the veracity of a witness‟ testimony, in children, the
opposite is the outcome as even when a child witness is credible, cross examination confuses the child hence
making the child give inconsistent testimony thereby leading the court to conclude that the child is not a
credible witness.
5.2.RECOMMENDATIONS
In view of lifetime consequences for the victims which vary from one case to another, it is fairer if the rights
of children in defilement cases are also accorded the same importance as those of the accused. There is no
justification for the law to claim to have the interests of defilement victims when in fact not, as the accused
rights are glorified in view of the safeguards put in place for the accused at the expense of the victim. Justice
not only ought to be done but must be seen to be done for the defilement victims as well. Therefore, all
provisions of the law which impede or inhibit children from freely testifying in cases in which they have an
interest must be done away with for the children‟s rights to be fully realised. Section 122 of the Juveniles
Act needs to be amended once again to allow the receptionof unsworn testimony of witnesses of tender age.
For the court to be able to receive the evidence of a child witness, the child must take oath and give sworn
testimony. Sworn testimony is tested by way of cross examination. However, it has been shown that
magistrates have challenges in as far as receiving sworn testimony from tender children is concerned. During
cross examination, most if not all the children become inconsistent in their evidence. Amending section 122
of the Juveniles Act will allow the re-introduction of the reception of unsworn testimony of the child witness
during trial.
As long as corroboration remains a requirement, then the State has the responsibility to find the resources to
support the process of obtaining full proof evidence such as DNA. This is because corroboration is not
readily available in defilement cases as the offence itself is committed by secluding the victim. Thus,
corroboration is limited to circumstantial evidence while in rare circumstances by an eye witness to the
offence and by the medical report which only shows that defilement was committed but does not state the
identity of the offender. DNA evidence of the offender and the semen found on the victim can provide
corroboration on the identity of the offender. Therefore, to reduce pressure on the child in terms of
corroboration, effective corroboration such as DNA is needed. When DNA testing is introduced, it would
also reduce the challenges on the prosecution of proving the identity of the offender as DNA evidence would
conclusively show who the offender or defiler is thereby attaining justice in defilement cases. There is need
for innovative ways of receiving children‟s testimony, for instance, the use of dolls during trial. This would
enable tender age witnesses to demonstrate on the doll the similar part on the accused‟s body which was used
to defile her. The child would also demonstrate using the doll to show which part of her own body was
touched by the accused.
5.2.CONCLUSION
In conclusion, currently, in sexual offences there is no law compelling an accused to be tested for DNA. This
is the more reason it is only the child who is examined. In cases where an accused has also been tested in a
sexual offence, it means the accused volunteered to be examined or tested. However, considering that
defilement is a serious offence with serious repercussions on the victim, there is no justification for the
accused to have the discretion whether to be examined or not.
It has been concluded that with regard to defilement victims, the law, the procedures employed in criminal
matters and the courts‟ interpretation of the inconsistencies in the testimony of child witnesses are a
hindrance to the realisation of the rights of children. Also, that the law and the procedures applied during
trial are not sensitive to the rights of the victims and give a blind eye to the interest of the child contrary to
Zambia‟s obligations in the CRC and the rights guaranteed in the Constitution of Zambia.
BIBLIOGRAPHY
BOOKS
Cohen, P.C. Women and International Human Rights Law (Vol. 3). Ardsley: TransnationalPublishers,
1998.
Garner, A. Bryan, trans., Black‟s Law Dictionary (9th Ed). Dallas Texas: West Publishing Co,2009.
McLean, I. and Morrish, P. Harris‟s Criminal Law. (22nd Ed). London: Sweet and Maxwell,1973.
Muller, K., and Holley, K. The Judicial Officer and the Child Witness. Port Elizabeth: Carl andEmily
Fuchs Foundation, 2002.
Muller, K. Prosecuting the Child Sex Offender. Port Elizabeth: Printrite, 2001.
Munsaka, E., and Beatrice M. Human Development from Conception to Adolescence: Typicaland
Atypical Trends. Lusaka: University of Zambia Press, 2013.
Myers, J.E.B. Child Witness: Law and Practice. United States: John Wiley and Sons, 1987. Perry, N.W.,
and Wrightsman, L.S. The Child Witness: Legal Issues and Dilemmas. California:Sage Publications,
1991.
ARTICLES
Human Rights Watch, “Suffering in Silence: the link between Human Rights Abuses and HIV
Transmission to girls in Zambia.” November, 2002.
Human Rights Watch, “The Human Rights Watch Global report on Women‟s Human Rights.” August,
1995.
Penny. Ward; Mutengo Consulting; Regis M. Gwaba, “Children‟s Rights in Zambia: A Situation Analysis.”
Save the Children, November, 2005.
Sampa, A; Machina, H; Mushota, L; and Sichilombe, J. “Gender Bias in the Zambian Court System: A
report based on research findings.” Women in Law and Development in Africa, June, 1994.
Mabula, T.K; Sara L. “The Enforcement of Human Rights of Zambian Women.” Zambia LawJournal Vol.
21-24, (1989-92): 30-45.
Wonani, C. “Sexual and Gender Based: The Zambian Case.” Women in Law and Development inAfrica
(WILDAF), 2008.
PAPERS
Butegwa. F, “Factors affecting the Legitimacy of Human Rights Principles in the Protection of Women”
paper presented at the Workshop on Gender and Human Rights, UN Conference on Human Rights, June
16-17, 1993) (unpaginated).
Fatuma. C, “With our eyes in our own voices: Breaking down walls of Sexual Harassment.”
Paper presented at the Forum for African Women Educationists, Nairobi, Kenya, 1997

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NATIONAL INSTITUTE OF PUBLIC ADMINISTRATION

AN ANALYSIS OF SEXUAL VIOLENCE IN ZAMBIA: A CASE OF DEFILEMENT

Signature: ___________________ Date: ______________________

Name: MUTINTA SILUMESI Examination #: 28027335

AN ANALYSIS OF SEXUAL VIOLENCE IN ZAMBIA: A CASE OF DEFILEMENT

Name: …………………………….. Division/Department: Legal

completion. I would like to express my gratitude to my supervisor Mr……………………… on his

my dear husband …………………. I appreciate your understanding, support and endurance

through-out the period of my research for this dissertation.

AIDS Acquired Immune Deficiency Syndrome

Akatama Wamunyima v The People SCZ Appeal No. 583/2013

AN ANALYSIS OF SEXUAL VIOLENCE IN ZAMBIA: A CASE OF DEFILEMENT

1.2. Problem Statement

1.3. General Objectives of the Research

1.4. The Specific Objectives are:

 To analyse the law on child witness testimony in cases of defilement in Zambia;

1.5. Justification of the Study

1.6. Research Questions

1.9. Purposive Sampling

1.10. Data Analysis

1.11. Limitation to the study

1.12. Literature Review

2.1. CONVENTION ON THE RIGHTS OF THE CHILD

2.1.1. Obligations of States Parties

2.1.1. Children’s Explicit Rights in the CRC:

2.2.1. The Unique Position of the African Child in the Charter

2.2.2. Rights and Duties of States Parties

2.2.3. THE UNITED NATIONS STANDARD MINIMUM RULES FOR THE

2.5. IMPLEMENTATION OF THE CONVENTION ON THE RIGHTS OF THE CHILD IN

3.1. THE CONSTITUTION OF ZAMBIA

3.1.1. The Bill of Rights in the Zambian Constitution

On appeal, the Supreme Court held that:

3.2. DEFINITION OF A CHILD IN THE CONSTITUTION VIS-`A-VIS OTHER DOMESTIC

3.3. DEFILEMENT AS DEFINED IN THE PENAL CODE

3.4.THE JUVENILES ACT

THE CHILD WITNESS PSYCHOLOGY AND THE COURT’S INTERPRETATION OF THE

4.2. COGNITIVE DEVELOPMENT

4.3. LANGUAGE DEVELOPMENT

4.5. WHETHER CHILDREN’S MEMORY IS AFFECTED BY SUGGESTIONS IMPLANTED

4.5.1. The Questioner’s Status

4.5.2. Repeated Questions

4.6. EFFECT OF CROSS EXAMINATION ON THE CHILD’S TESTIMONY

4.7. INCONSISTENCIES IN THE CHILD’S TESTIMONY AND THE COURT’S EVALUATION

4.8.POSSIBLE EFFECTS OF THE INCONSISTENCIES ON THE CASE

OVERVIEW OF THE RESEARCH FINDINGS, SUMMARY AND RECOMMENDATIONS ON

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