Africa-Press – Zambia. The government has said that recommendations by the Zambia Law Development Commission to harmonise provisions of the law on bigamy, does not entail that government wants to decriminalise the offence.
Justice Minister, Mulambo Haimbe said that stakeholders recommended the removal of the offence of bigamy in Section 166 of the Penal Code but maintain the same in Section 38 of the Marriage Act.
Mr. Haimbe said that the recommendations have been calculated to avoid duplicity of offence in the country’s statutes, further saying that the recommendations are not final as they will be subjected to further debates in the National Assembly
Mr. Haimbe said this in a ministerial statement in Parliament yesterday and clarified that the Technical Committee that has availed recommendations for the harmonisation of Zambia’s Statutes is not new as it was constituted in 2011 under the Movement for Multi-party Democracy-MMD.
Mr Haimbe said the United Party for National Development (UPND) is merely trying to facilitate the implementation of recommendations to harmonise Zambia’s Statues to guard against duplicity in the application of laws.
Below is the full statement Delivered by the honourable minister of justice on the repeal of the law relating to bigamy in the penal code, chapter 87 of the laws of Zambia Madam Speaker,
Thank you for according me the privilege to issue a ministerial statement on the recommendation by Zambia law development commission to repeal the provision relating to bigamy under the penal code, chapter 87 of the laws of Zambia. This topic has garnered a lot of debate across the country and the discussions and comments on the matter have necessitated my ministerial statement as the penal code falls under the ministry of justice.
The crux of the matter is whether the law relating to bigamy will be proposed for repeal when the penal code is reviewed. Madam Speaker, From the onset, it should be noted that the Zambia law devel0pment commission is an independent corporate body established under the Zambia Law Development Commission act, chapter 32 of the Laws of Zambia.
The functions of the Zambia law development commisison under section 4 of the Zambia law development commission act, are to among others- (a) recommend the revision and reform of the law in Zambia;
(b) recommend the codification of unwritten laws in Zambia;
(c) review and consider proposals for law reform referred to the commission by the minister or the members of the public;
(d) hold seminars and conferences on legal issues;
(e) translate any piece of legislation into local languages;
(f) encourage international co-operation in the peformance of its functions under the act; and
(g) do all such things incidental or conducive to the attainment of the functions of the commission. Madam Speaker,
Pursuant to the commission’s functions, the government in 2011 appointed a technical committee led by honourable justice chalwe mchenga, in collaboration with the Zambia law development commission to review the penal code chapter 87 and the criminal procedure code, chapter 88 of the laws of Zambia. A report of the said committee has since been submitted to the ministry of justice. The report has highlighted on page 35 that a person may be charged under section 166 of the penal code for the same conduct and offence of bigamy similar to that provided under section 38 of the marriage act, chapter 50 of the laws of Zambia.
Madam Speaker, Section 38 of the marriage act provides that- Any person who- (a) contracts a marriage under this act, being at the time married in accordance with african customary law to any person other than the person with whom such marriage is contracted;
(b) having contracted a marriage under this act, during the continuance of such marriage contracts a marriage in accordance with african customary law shall be guilty of an offence and liable on conviction to imprisonment for a period not exceeding five years.
Provided that this section shall not extend to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time.
While section 166 of the penal code provides that- Any person who, having a husband or wife living, goes through a ceremony of marriage which is void by reason of its taking place during the life of such husband or wife, is guilty of a felony and is liable to imprisonment for five years:
Provided that this section shall not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time. Madam Speaker,
it is on this premise that the committee recommended on page 44 of the report that the offence of bigamy be repealed from the penal code to avoid duplicity of offences in the statute book as the statute book is read as one. Therefore, if the offence of bigamy was repealed under the penal code, it would still remain an offence under the marriage act. It will be seen therefore, that rather than the speculation among members of the public and stakeholders in general that the new dawn government has taken a position on polygamy in Zambia, all that has been done is a recommendation to clear up the stattute book. Even then appropriate committee will take views of all stakeholders in the event such an amendment comes before the house for consideration.
Madam Speaker, The above notwithstanding, the repeal of the provision relating to bigamy under the penal code remains a recommendation and this is to avoid duplicity on the statute book. The recommendation must be considered by the cabinet through the internal legislative processes before it is submitted to parliament for enactment.
Madam Speaker, ultimately, the decision lies with the Zambian people through its representatives in this august house on whether to repeal the offence of bigamy under the penal code if the amendment is made and once all the legislative processes are concluded and an amendment bill is tabled in the house.
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