Ex-ZSIS boss Chungu denied bail again

The Lusaka High Court recently dismissed a renewed bail application by former Zambia Security Intelligence Service director-general Xavier Chungu, affirming that courts lack discretion to grant bail once the Director of Public Prosecutions (DPP) issues a certificate denying it on grounds of national interest. This decision, rooted in Section 123(4) of the Criminal Procedure Code (Cap. 88), highlights a significant limitation on judicial power in cases involving national security. The ruling underscores the mandatory nature of the DPP's certificate, raising critical questions about the balance between executive authority, judicial independence, and the constitutional right to personal liberty in Zambia.

The recent decision by the Lusaka High Court to deny bail to former Zambia Security Intelligence Service (ZSIS) Director-General Xavier Chungu has sent ripples through Zambia's legal fraternity. Mr. Chungu, facing charges under the State Security Act, Chapter 111 of the Laws of Zambia, and the Penal Code, Chapter 87 of the Laws of Zambia, had his renewed application for bail pending trial dismissed on the grounds that a certificate issued by the Director of Public Prosecutions (DPP) effectively removes the court's discretion to grant such relief.

This ruling, which upholds a similar decision by the Lusaka Magistrates' Court, brings into sharp focus the extensive powers vested in the DPP under Zambian law, particularly concerning matters deemed to affect national interest. It reignites long-standing debates about the delicate balance between state security imperatives, the independence of the judiciary, and the fundamental constitutional rights of accused persons, including the right to personal liberty and the presumption of innocence. This article will delve into the statutory framework underpinning this decision, analyse its implications for criminal procedure and constitutional law in Zambia, and consider the practical challenges it poses for legal practitioners.

Bail in Zambia is primarily governed by the Constitution, the Criminal Procedure Code (Cap. 88), and the Bail Act (Cap. 94). Article 13 of the Constitution of Zambia (Amendment) Act 2016 safeguards personal liberty and provides for the right to apply for bail, stipulating that an arrested or detained person, if not tried within a reasonable time, shall be released either unconditionally or upon reasonable conditions. Section 3 of the Bail Act further empowers courts to grant bail, subject to conditions ensuring the accused's attendance at trial. Similarly, Section 123 of the Criminal Procedure Code generally grants courts discretion to admit persons accused of non-capital offences to bail.

However, this general discretion is significantly curtailed by specific provisions, most notably Section 123(4) of the Criminal Procedure Code. This critical section provides that "Notwithstanding anything to the contrary contained in this Code or in any written law, a person charged with an offence under the State Security Act shall not be admitted to bail, either pending trial or pending appeal, if the Director of Public Prosecutions certifies that it is likely that the safety or interests of the Republic would thereby be prejudiced." The DPP, whose office is established under the Constitution and further regulated by the National Prosecution Authority Act No. 34 of 2010, possesses broad prosecutorial powers, including the authority to institute, take over, or discontinue criminal proceedings. The exercise of these powers is generally subject to a two-stage test: evidential sufficiency and public interest.

In the case of Xavier Chungu, the Lusaka High Court's decision to deny bail hinged entirely on the mandatory language of Section 123(4) of the Criminal Procedure Code. Mr. Chungu was charged with offences including communication of certain information, seditious practices, and publication or disclosure of information to an unauthorised person, all falling under the ambit of the State Security Act. The Director of Public Prosecutions (DPP) issued a certificate asserting that granting bail would likely prejudice the safety or interests of the Republic.

Chief Resident Magistrate Nthandose Chabala, whose ruling was effectively upheld by the High Court, explicitly stated that the word "shall" in Section 123(4) renders the provision mandatory, leaving the court with no discretion once the DPP's certificate is issued. This interpretation means that the court's role is merely to acknowledge the certificate, rather than to independently assess the merits of the national interest claim or the likelihood of prejudice. The defence's argument that the State should be required to adduce evidence supporting the DPP's certificate was rejected, further highlighting the executive's unchallengeable power in this specific context.

This statutory provision creates a significant tension with fundamental constitutional principles. Article 13 of the Constitution guarantees the right to personal liberty, while Article 18(2)(a) enshrines the presumption of innocence. By removing judicial discretion in bail matters based solely on an executive certificate, Section 123(4) arguably encroaches upon the judiciary's role as a guardian of individual rights and the separation of powers. While the DPP's powers are generally "subject to the Constitution", the practical effect of Section 123(4) is to place the DPP's determination of "national interest" beyond immediate judicial scrutiny at the bail stage. This raises concerns about potential abuse of power and the erosion of due process, as an accused person can be deprived of liberty indefinitely without a judicial determination on the factual basis of the national interest claim.

While Zambia's legal framework does provide for "constitutional bail" under Article 13(3)(b) of the Constitution, which can be granted by the High Court in cases of unreasonable delay in trial, this is a remedy for prolonged detention, distinct from the initial denial of bail based on a DPP certificate. The current ruling implies that even if a constitutional challenge were mounted against Section 123(4) itself, the immediate effect of the DPP's certificate remains binding on the courts in bail applications. This situation contrasts with jurisdictions where courts retain a residual discretion to review the factual basis of executive claims in national security cases, ensuring a more robust check on executive power.

The High Court's decision in the Xavier Chungu case serves as a stark reminder to legal practitioners in Zambia of the formidable hurdle presented by a Director of Public Prosecutions' certificate denying bail on national interest grounds under Section 123(4) of the Criminal Procedure Code. For defence attorneys, the immediate implication is that conventional arguments for bail, focusing on factors such as community ties, flight risk, or the strength of the evidence, become largely irrelevant once such a certificate is issued in cases under the State Security Act.

Practitioners must therefore consider alternative strategies, including potential constitutional challenges to the validity or application of Section 123(4) itself, arguing that it unduly infringes upon the constitutional right to liberty and judicial independence. Furthermore, closely monitoring the pace of proceedings to invoke the right to "constitutional bail" under Article 13(3)(b) of the Constitution, in the event of unreasonable trial delays, becomes a critical avenue for relief. The case underscores the need for ongoing vigilance and advocacy to ensure that the expansive powers of the executive, while necessary for national security, are balanced against the fundamental rights and freedoms guaranteed by the Constitution.