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INTRODUCTION
The Court was faced with a very difficult case on whether a child comes in conflict with the law
can actually be given a custodial sentence considering the gravity of offences and the maximum
sentences for the same taking into account the provisions of the Children Code Act which
prescribes how children who find themselves on the other side of the law should be dealt with.
Analysis of the case
The Court stated that methods for dealing with a child offender under Section 79 of the
Children's Code, are essentially the same as those that were available under Section 73 of the
Juveniles Act, but for three major Variations.
The first important variation is that Section 73 (1) (i) of the Juveniles Act, expressly specified
that an offender who was a young person, could be imprisoned. Under that Act, a "young person'
was defined person who has attained the age of sixteen years, but has not attained the age of
nineteen years A similar provision does not exist in the Children' s Code. The other variations are
that under Section 79 (1) of the Children ' s Code, are that a child can be committed into a child
care facility or a restorative justice order can be made. From the foregoing, it is clear that with
the enactment of the Children' s Code, the power of the court to imprison children of certain
ages, which was expressly set out in the Juvenile' s Act, was omitted.

The Court further considered the question whether it can be said that the courts still have the
power to imprison children, but that this time around, that power is not express but
implied, through Section 79 (1) (i) of the Children' s Code? In taking this position, the
court relied on the case of R. v. Hughes, at page 624:

"A penal statute falls to be construed with a degree of strictness in favour of

the accused. It is undoubtedly open to Parliament to legislate to create a
harsh offence or penalty, just as it: is open to it to take away any
fundamental rights, but it is not to be assumed to have done so unless that
interpretation of its statute is compelled, and compelled by the language of
the statute itself".

The Court was of the view that had Parliament intended that the courts should still have the
power to imprison children, the Children' s Code would have retained a provision that clearly
and expressly provided for it, as was the case in the repealed Juvenile' s Act. The Section 23 (2)
of the Children' s Code, which is under Part II of the Code, tiled the Rights and Responsibilities
of a Child", provides that "a person shall not subject a child to capital punishment or life
imprisonment". Can it be said that since the law only prohibits life imprisonment, any other
form of imprisonment is permitted?
Further, the Court was the opinion that the mere fact that only life imprisonment is proscribed,
cannot lead to a conclusion that the courts have the power to imprison for a shorter period.
Currently, imprisonment is the most severe sanction that an offender can be subjected to in
Zambia. We take the view that the power to impose such a severe
The Court stated that sanction, especially on a child, must expressly be provided for. The
existence of such power cannot be assumed or inferred. In the absence of such an express
provision, it is our conclusion that neither Section 79(1)(i) of the Children' s Code, nor any other
provision in the Code empowers the courts to imprison children.

The Court opined that Section 79(1)(i) of the Children' s Code, is similar to Section 73(1)(j) of
the Juveniles Act, which allowed a court that had found a child guilty of committing an offence,
to deal "with the case in any other manner in which it may legally be dealt with". That provision,
just like Section 79(1)(i) of the Children' s Code, allowed the courts to impose a sanction other
than those listed.

This being the case, it cannot be said that Parliament probably removed the express power of the
court to imprison children, and rendered it discretionary, through Section 79(1)(i) of the
Children' s Code, because even under Section 73(1)(i)of the Juveniles Act, which expressly
provided for imprisonment of children, the courts had the power to impose sanctions other than
those that were listed.

The Court agreed with the lacuna in the Children’s Code Act in terms sentencing of children
who come into conflict with the law. it stated that it is our view that the courts are not the right
forum for the resolution of sentencing problem this case has exposed.
How should the Court deal with Children
However, section 79. (1) of the Children’s Code Act provides for methods of how a juvenile
court or Children’s Court ought to deal with a child and it states that a child may be dealt with in
one or more of the following ways:
(a) dismiss the case against the child or discharge the child;
(b) make a probation order in respect of the child;
(c) send the child to a child approved centre or child reformatory centre;
(d) commit the child to the care of a fit person or child care facility;
(e) in the case of a child who is a young person, order the young person to pay a fine, damages or
costs;
(f) order the child’s parent, guardian or person having parental responsibility for the child to pay
a fine, damages or cost;
(g) order the child’s parent, guardian or person having parental responsibility for the child to give
security for the good behavior of the child;
(h) make a restorative justice order in accordance with programs established under section 84; or
(i) in any other manner that the juvenile court or Children’s Court determines in the
administration of justice.
A juvenile court or Children’s Court should take into consideration the ability of the young
person, child’s parent, guardian or a person having parental responsibility for the child to pay the
fine, damages or costs before the order is made. Further, the Court is prohibited to given a child
below the age of sixteen a custodial order. It further provides that a child who is aged sixteen to
eighteen shall not be given a custodial order if the child can be suitably dealt with in any other
manner.1 Section 79(5) states that juvenile court or Children’s Court should not pronounce or
record an order of death against a child.2 The juvenile court or Children’s Court proscribed from
the use of the words “conviction” and “sentence” in relation to a child before the court and a
reference in any written law to “conviction” and “sentence” shall not apply but the words
“finding of guilty” or “order”.3 The juvenile court or Children’s Court shall expeditiously deal
with the case of a child and if the case is not completed within six months of the child’s first

1
Section 79 (4) of the Children’s Code
2
Ibid Section 79(5)
3
Ibid Section 79(6)
appearance before the court, the juvenile court or Children’s Court may discharge the child
immediately.4
The shortfalls of the Childrens Code Act
The greatest shortfall of the aforementioned act is the limiting of the Courts powers to deal with
the children that decide to come in conflict with the law. under this Act, the Court hands are tied
and they cannot impose a custodial sentence on a child regardless of the gravity of the offence
committed. Section 79(3) and (4) prohibits the imposition of a custodial sentence on a child. The
Court have been rendered inoperative subject to archaic provisions of the Act. The Court no
longer have discretional powers to impose a sentence on child. I am of the view that this Act is
not a good law as it is an escape goat for children who consciously come into conflict with the
law. the Act should have given a minimum and of possible a maximum custodial and other
reformatory orders rather than completely doing away with sentences. This law is a shield for
young offenders as they cannot be prosecuted by the Courts. Section 79(8) provides a child must
be released unconditionally if the matter is not concluded within six months, given the backlog
of cases our Courts are facing, most of the cases involving children might end up being decided
in very expeditious manner in order to comply with the provisions of the law.
How evidence of a child should be received
Section 25(1) of the Children’s Code Act provides that a child that is giving evidence to a law
enforcement officer or other authorized officer shall be questioned
(a) In the presence of the child’s parents, guardian or relative, a person having parental
responsibility for the child or a child welfare inspector;
(b) In a manner that avoids any harm being occasioned to the child;
(c) In a manner that promotes the well-being of the child; and
(d) Having regard to the age, maturity and cognitive abilities of the child, through a child welfare
inspector or other authorized officer acting for the child.
Section 78(1) of the Act provides for how such evidence should be received. For the record,
cases involving children are heard and determined by the Children’s Court which is also known
as Juvenile Court. It should be noted that in criminal or civil proceedings against a person, if a
child is called as a witness, the juvenile court or Children’s Court is required to receive the
evidence, on oath, of the child if juvenile court or Children’s Court is of the opinion that the

4
Section 79(8)
child possesses sufficient intelligence to justify the reception of the child’s evidence, on oath,
and understands the duty of speaking the truth.5
However, if the juvenile court or Children’s Court, is of the opinion that the child does not
possess sufficient intelligence to justify the reception of the child’s evidence, on oath, and does
not understand
the duty of speaking the truth, the child may give unsworn evidence that may be received as
evidence in a juvenile court or Children’s Court or may give evidence through a child welfare
inspector responsible
for the child’s case.6
I must be quick to mention that a child required to give evidence in a juvenile court or Children’s
Court according to the Act be prepared to testify by a child welfare inspector or any other
authorized officer.7
When a child is giving evidence he/she must be questioned in an environment that is child
friendly, he/she must be questioned in camera and not in an open court in order to make the child
witness comfortable, he/she must be questioned in a manner that is proportional to the child’s
age and maturity of the child, he/she not interact or be in the same room with a person the child
is testifying against; and, he/she must not be questioned more than twice.8
No one is allowed to cross-examine the child witness, however, such a person the child is
testifying against or that person’s legal practitioner is required to cross examine a child witness
through a child welfare inspector, an authorized officer or a child’s next friend, acting as an
intermediary, the use of a video link.9
According to the Children’s Code Act, the juvenile court or Children’s Court allows recorded
pre-trial interviews with a child to be presented as evidence instead of a live testimony by a
child, this is because the child might not be able to testify freely before the judicial officers, the
Court may alternatively request a report from a child welfare inspector or other authorized
officer who has interviewed a child to be used as evidence.10

5
Children’s Code Act section 78(1)
6
Children’s Code Act Section 78(2)
7
Ibid section 78(3)
8
Ibid section 78(4)(a,b,c,d,e)
9
Ibid section 78(5)(a,b,c)
10
Ibid section 78(6)
The Act emphasized that that a child witness shall be protected from threats, intimidation,
reprisal or any other form of victimization prior to and when giving evidence before a juvenile
court or Children’s Court and that evidence presented before the juvenile court or Children’s
Court
to be corroborated by some other material evidence.11
Conclusion
In conclusion, the court’s sufficient powers to render custodial sentence to juvenile offender was
caused by the limitation of power by the Children’s Code Act. The Courts hands were tied and
could not go further to sentence the offender. This paper has also highlighted the short-falls of
the Act and emphasized on the need to revisit the Act in order to avoid the future occurrences of
the similar nature and the case analyzed herein makes a bad precedent.

11
Ibid section 78(9)
Bibliography
Legislation
Children’s Code Act No. 12 of 2022
Cases
The People v Abraham Phiri (Appeal No. 09 2024) 2024 ZMCA 45