Kapoko v People (2016/CC/0023) [2016] ZMCC 6 (7 November 2016);

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Flynote: 

Flynote: 

1. By virtue of Article 128 (1) (a), it is the preserve of the Constitutional Court to provide an interpretation of the Constitution other than the Bill of Rights.

2. The Constitution makes it clear in Article 267 (1) that the Constitution shall be interpreted in accordance with the Bill of Rights. The Constitutional Court, in interpreting the Constitution, has to apply its mind to the rights enshrined therein.

3. It is trite that the Constitution by virtue of Article (1) (1) is the supreme law of the land and no act of Parliament should contradict it either in letter or spirit. The Constitutional Court is also empowered to strike down any statutory provision that contradicts the Constitution under Article 128 (1) (b) upon the application of any person made under article 128 (3) (a).

4. Article 118(2) (e) is a guiding principle of adjudication framed in mandatory terms. It is a basic truth applicable to different situations. The Article's beneficial value is achieved well if it is applied in an eclectic fashion depending on the nature of the rule before it.

5. Article 118(2) (e) is not intended to do away with existing principles, laws and procedures, even where the same may constitute technicalities. It is intended to avoid a situation where a manifest injustice would be done by paying unjustifiable regard to a technicality.

6. Whether a particular provision is a technicality may be determined from its form, its content and its application in the peculiar circumstances of the issue before the court.

7. The rules of procedure in criminal trials as a whole, are not in themselves technicalities and Article 118(2) (e) is not intended to turn them into technicalities that fall within its ambit. Sections 207 and 208 of the Criminal Procedure Code are necessary rules of procedure and not mere technicalities.

Headnote and Holding: 

This is an application for the interpretation of Article 118 (2) (e) of the Constitution of Zambia, Act No 2 of 2016, in relation to sections 207 and 208 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia.
The brief facts are that the Applicant was the accused in the Court below against the Anti-Corruption Commission (ACC) who was the Prosecution. The Applicant was charged with counts of theft by public servant, money laundering and abuse of authority. When put on his defence, the Applicant sought to have his witnesses give evidence before him, contrary to what is provided for in sections 207 and 208 of the Criminal Procedure Code. He asserted that the requirement that the accused testify before the witnesses is a matter of practice rather than law and that Article 118 (2) (e) created a new order. The Prosecution objected to this assertion and stated that sections 207 and 208 of the Criminal Procedure code are not only instructive but also mandatory. The trial court concluded that this sequence is a matter of substantive justice as opposed to a procedural technicality. The trial court declined to interpret Article 118 (2) (e) as the interpretation was not with its powers. Dissatisfied with this, the Applicant moved this court for an interpretation of Article 118 (2) (e) of the Constitution of Zambia, Act No 2 of 2016.

Held

1. By virtue of Article 128 (1) (a), it is the preserve of the Constitutional Court to provide an interpretation of the Constitution other than the Bill of Rights.

2. The Constitution makes it clear in Article 267 (1) that the Constitution shall be interpreted in accordance with the Bill of Rights. The Constitutional Court, in interpreting the Constitution, has to apply its mind to the rights enshrined therein.

3. It is trite that the Constitution by virtue of Article (1) (1) is the supreme law of the land and no act of Parliament should contradict it either in letter or spirit. The Constitutional Court is also empowered to strike down any statutory provision that contradicts the Constitution under Article 128 (1) (b) upon the application of any person made under article 128 (3) (a).

4. Article 118(2) (e) is a guiding principle of adjudication framed in mandatory terms. It is a basic truth applicable to different situations. The Article's beneficial value is achieved well if it is applied in an eclectic fashion depending on the nature of the rule before it.

5. Article 118(2) (e) is not intended to do away with existing principles, laws and procedures, even where the same may constitute technicalities. It is intended to avoid a situation where a manifest injustice would be done by paying unjustifiable regard to a technicality.

6. Whether a particular provision is a technicality may be determined from its form, its content and its application in the peculiar circumstances of the issue before the court.

7. The rules of procedure in criminal trials as a whole, are not in themselves technicalities and Article 118(2) (e) is not intended to turn them into technicalities that fall within its ambit. Sections 207 and 208 of the Criminal Procedure Code are necessary rules of procedure and not mere technicalities.

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