analysisBy Kizito Byenkya
Can you imagine spending three months - or even three years - in detention for being a 'rogue and vagabond'? While this will sound archaic to most people, it is not uncommon for people in Zambia to find themselves in prison or in police detention centres on just such charges - adding to the overcrowding that plagues the system
Zambia's prison infrastructure currently holds three times more people than it was designed to house. Lusaka Central Prison is even worse - with 1000 detainees squeezed into a space suitable for 200, according to a 2010 Human Rights Watch report.
These overcrowded conditions are compounded by a lack of basic sanitation, nutrition and healthcare. Recently, Zambia's Vice President Guy Scott visited the Mukobeko maximum-security prison and described the conditions there as "hell on earth".
If one looks at the profile of the Zambian prison population, more than a third has never been convicted of any crime - as an OSISA study on pre-trial detention in Zambia discovered.
Not only does this exacerbate overcrowding but pre-trial detainees are also more vulnerable than their sentenced counterparts, according to the Open Society Justice Initiative (OSJI) Global Campaign for Pretrial Justice.
"Many pre-trial detainees are exposed to torture, violence, and disease," argues OSJI. "They are subject to the arbitrary actions of corrupt officials.
Throughout their ordeal, most never see a lawyer or legal advisor and often lack information on their basic rights. When they eventually reach a courtroom - without representation - the odds are stacked against them". In addition, the longer a detainee is held before trial, the more likely he or she is to be found guilty.
The irony in Zambia - and across much of southern Africa - is that many of those in police detention or awaiting trial in prison are there because of outdated, colonial era offences - such as loitering, touting, failure to pay debts and disobedience to parents to name a few - which would long since have been removed from the criminal code in other jurisdictions
In Zambia, for example, a number of pre-trial detainees are held under suspicion of being a 'rogue and vagabond' - a charge that stems from the English Vagrancy Act of 1824 under which being 'intentionally unemployed' was a criminal offence.
At the time of its inception, English roads were crowded with unemployed and idle men who were seen as a menace to society. Needless to say, this law has been removed from the English criminal code and while it does appear on the statute in some former colonies, it is rarely prosecuted. For the most part, this is because vagrancy laws are regarded as being too vague - and providing the police with overreaching powers to make arbitrary and warrantless arrests.
Unfortunately, this has not been the case in Zambia. Despite significant strides in relation to development, democracy and economic growth, much still needs to be done to reform the criminal justice system.
Zambia's Penal Code has seen little change since it came into force after independence in 1964. People continue to be detained on minor offences - with 8 percent of those held at police stations in the last five years being there for the crime of being idle, according to the OSISA study. To this day Section 181 of the Zambian Penal code states that:
"Every person found wandering in or upon or near any premises or in any road or highway or any place adjacent thereto or in any public place at such time and under such circumstances as to lead to the conclusion that such person is there for an illegal or disorderly purpose...shall be deemed to be a rogue and vagabond."
In terms of Zambian law, those arrested for the first time on a charge of being a 'rogue and vagabond' may be sentenced to three months in prison, while repeat offenders face imprisonment of up to three years. Given the spurious nature of these charges, these sentences are indefensibly high, particularly given the wide latitude that judges and magistrates have in interpreting the law.
Exacerbating this is the lack of access by pre-trial detainees in Zambia to legal counsel. While a good lawyer can easily have these charges dismissed, it is unlikely that someone who has been charged as a 'vagabond' will be able to afford the services of a good lawyer? They are equally unlikely to have access to state sponsored legal services given the current strain on the Zambian legal aid system.
The upshot of all this is that many Zambians charged with these types of offences are at risk of spending prolonged periods of time in detention, impacting not only their own lives but also those of their families.
So what is to be done? According to the Civil Society Prison Reform Initiative (CSPRI), the Ouagadougou Declaration and Plan of Action on Accelerating Prison and Penal Reform in Africa of 2003 - which was endorsed by the African Commission on Human and Peoples' Rights - called for the 'decriminalisation of offences such as being a rogue and vagabond, loitering, touting, failure to pay debts and disobedience to parents' as a strategy to reduce the prison population.
However, CSPRI notes that even though many of the offences identified by the African Commission as ripe for repeal amount to nothing more than the criminalisation of poverty, homelessness and unemployment, few countries have made any progress in implementing this strategy in the past decade.
A key article in the African Charter on Human and Peoples' Rights, to which Zambia is a signatory, is the right to liberty and security of the person. And yet - in direct contradiction to this provision - indigent people, people with disabilities and other marginalised groups, such as sex workers, are currently at risk of being detained and imprisoned purely because of who they are.
Clearly a lot of work needs to be done to reform Zambia's criminal justice system. But a good - as well as simple and effective - first step would be to remove the offence of being a 'rogue and vagabond' as well as other outdated offences from the criminal code. This would instantly relieve the pressure on the system and help to protect people's basic rights.
Zambia has taken many positive steps towards reforming its laws and policies in the last decade. It is time to axe these spurious colonial laws, which continue to overload the system with innocent people and continue to tarnish what is otherwise a respectable track record in relation to good governance and the rule of law.