On August 24, 2022, Zambia’s president, Hakainde Hichilema, signed into law a comprehensive law governing children, the Children’s Code Act (Act No. 12) of 2022. The act, which includes 19 parts and 198 provisions, provides for a comprehensive legal framework to govern matters affecting children for the first time in the country’s history. It brought to an end the piecemeal approach the country has followed by repealing and replacing the key laws that had previously governed different aspects of matters relating to children: the Legitimacy Act of 1929, Juveniles Act of 1956, Adoption Act of 1995, and Affiliation and Maintenance of Children Act of 1995.
Importantly, the act brings Zambia into compliance with its treaty obligations by domesticating a number of international conventions that it had signed over the years. These are the 1989 Convention on the Rights of the Child (which it ratified in 1991), the 1990 African Charter on the Rights and Welfare of the Child (which it ratified in 2008), the 1993 Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption (to which it acceded in 2015), and the 1980 Convention on the Civil Aspects of International Child Abduction (to which it acceded in 2014).
The act makes the principle of the best interest of the child (which the Zambian Constitution defines as a person who is 18 years of age or below) “the primary consideration in a matter or action concerning the child, whether undertaken by a public or private body.” (Children’s Code Act §§ 2 & 3; Constitution of Zambia § 266.)
It bars discrimination against children “on the basis of race, colour, sex, gender, age, language, political or other opinion, conscience, belief, tribe, pregnancy, health, ethnic or social origin, disability, property, birth, economic or other status.” (§ 7.)
The act includes a number provisions that protect children from harmful practices. It bars female genital mutilation and subjecting children to child marriage “or cultural rites, and religious or traditional practices, that are likely to negatively affect the child’s life, health, social welfare, dignity, and physical or psychological development.” (§ 18.) It also bars the sexual abuse or exploitation of children, use of children in prostitution, persuasion or coercion of children to engage in sexual activity, and exposure of children to obscene or pornographic material. (§ 19.) It prohibits the use of corporal punishment on children and bars the imposition of capital punishment or life imprisonment on child offenders. (§§ 22 & 23.) In addition, the act provides that children are “entitled to protection from maltreatment and any other form of exploitation, including sale, trafficking, abduction, cyber bulling or online exploitation.” (§ 17.) It bans the exposure of children “to the use, production, trafficking or distribution of hallucinogens, alcohol, tobacco products, drugs or precursor chemicals.” (§ 20.)
The act discourages detention of children in conflict with the law. It provides that a “child shall not be taken into custody … except as a measure of last resort.” (§ 57.) Conversely, it makes diversion a measure of first resort in dealing with children in conflict with the law. (§ 58.) According to the act, diversion is “the referral of cases of children alleged to have committed offences away from the criminal justice system with or without conditions.” In dealing with such children, the act requires the application of the following diversion options:
(a) an informal reprimand by a law enforcement officer;
(b) a formal and recorded caution made by a law enforcement officer in the presence of a child’s parent, guardian, close relative of the child or person having parental responsibility for the child;
(c) taking the child through a diversion programme;
(d) mediation;
(e) family group conferencing; or
(f) restitution.
The act accords a child in conflict with the law the right to legal representation and requires that the Legal Aid Board, a statutory body established under a 1967 law, provide legal representation to a child in conflict with the law in instances where the child cannot afford to pay for one. (§ 72.)
Hanibal Goitom, Law Library of Congress
December 30, 2022
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