The People v John Sinkamba and Ors (2025/CCZ/R001) [2025] ZMCC 14 (28 July 2025)

IN THE CONSTITUTIONAL COURT OF ZAMBIA 2025/CCZ/R 001 HOLDEN AT LUSAKA (Constitutional Jurisdiction) IN THE MATTER OF: ARTICLE 266 OF THE CONSTITUTION AS READ WITH SECTION 71 OF THE CHILDREN'S CODE ACT NO. 12 OF 2022 IN THE MATTER OF: THE CONSTITUTIONAL REFERENCE FROM THE FAMILY DIVISION OF THE HIGH COURT IN THE MATTER OF: THE PEOPLE V JOHN SINKAMBA, D AND P~;N~ ~ KA~EBA vF~MJIA I K Coram: Munalula PC, Shilimi DPC, Musaluke, c~ Z,l,J,UbJ~~~ejg'.\ awimbe and Mulife JJC on 25th July, 2025. I 1-<r:. •: tSTRY 5 j p O CC I. t.1,X 7. LU St KA CONSTITUTIONAL REFERENCE Musaluke, JC, rendered the opinion of the Court Cases referred to: 1. Steven Katuka and Law Association of Zambia v The Attorney General and Ngosa Simbyakula and 63 Others CCZ Selected Judgment No. 29 of 2016 2. Milford Mambo and Others v The People CCZ Selected Judgment No. 31 of 3. Fredson Kango Yamba v The Principal Resident Magistrate, Anti-Corruption Commission and the Attorney-General, 2023/CCZ/003 CRl CamScanner Legislation referred to: The Constitution of Zambia (Amendment) Act No. 2 of 2016 The Penal Code Chapter 87 of the Laws of Zambia The Children's Code Act No. 12 of 2022 Other works referred to: Aharon Barak, Purposive Interpretation in Law, Princeton University Press, 2005. The Concise Oxford Dictionary (1995) (9th Edition) United States of America: Oxford University Press. Markandey Katju and S. K. Kanshik N. S. Bindra's Interpretation of Statutes (9th Edition) LexisNexis Butterworths, 2002. Report of the Technical Committee on Drafting the Zambian Constitution (30th April 2012). Convention on the Rights of a Child adopted on 20th November 1989: Entry into force 20th September 1990. African Charter on the Rights and welfare of the Child, OAU Doc. CAB/LEG/124.9/49 (1990): Entry into force 29th November 1990. INTRODUCTION AND BACKGROUND [1] This is a constitutional reference from the Family Division of the High Court of Zambia, seeking constitutional interpretation of the definition of a 'child' as set out in Article 266 of the Constitution of Zambia (Amendment) Act No. 2 of 2016 (the Constitution). [2] Background facts leading to this reference are that on 11 th April, 2025 the accused persons namely; John Sinkamba and Prince Kaseba as well as a child in conflict with the law (CIL) D K were CR2 charged with the offence· of possession of property suspected to have·····-·· -·- - - been stolen or unlawfully obtained contrary to section 319 (a) of the Penal Code, Chapter 87 of the Laws of Zambia. [3] When the matter came up before the referring court for determination of the child's age pursuant to section 71 of the Children's Code Act No. 12 of 2022, the affidavit verifying the name and age of the child indicated that the CIL was born on 6th June, 2006. That therefore, when the matter came up for plea on 11th April, 2025 it was found that at the time the CIL allegedly committed the subject offence on 16th November, 2024, he was years and months old. [4] The referring court, after hearing from counsel for both parties, referred to this Court the interpretation of the definition of a "child' as set out in Article 266 of the Constitution. The referring court, noted that actors and stakeholders in the Zambian child justice system have given divergent interpretations as to who a child is. That some actors or stakeholders consider that any person above 18 years of age is not a child while others have opined that any person below 19 years of age is a child within the meaning provided for under Article 266 of the Constitution. CR3 .. [5] Against this background the learned presiding Judge decided to refer this question to this Court. In this regard the learned presiding Judge said: "In the circumstances, I hereby refer the issue of the definition of who a child is as set out in Article 266 of the Constitution of Zambia (Amendment) Act, No.2 of 2016 to the Constitutional Court. This provision provides the following on the definition of a child: "child" means a person who has attained, or is below, the age of eighteen." INTERPRETATION AND CONSIDERATION [6] The constitutional reference before us seeks our interpretation as to who a child is as envisaged under Article 266 of the Constitution. [7] As the reference herein is one that will require our interpretative jurisdiction, it is imperative that we begin by addressing our minds to the principles of constitutional interpretation. [8] The starting point is Article 267(1) of the Constitution which guides this Court to interpret the Constitution in accordance with the Bill of Rights and in a manner that promotes its purposes, values and principles; permits the development of the law; and contributes to good governance. CR4 (9] This position was re-affirmed in the case of Steven Katuka and Law Association of Zambia v The Attorney General and Ngosa Simbyakula and 63 Others. 1 In that case, we stated inter alia that: As a starting point, we wish to observe that Article 267 (1) enjoins us to interpret the Constitution in accordance with the Bill of Rights and in a manner ' that promotes its purposes, values and principles. This entails that this Court must have in mind the broad objects and values that underlie any particular subject matter. [1 O] Bearing this principle of constitutional interpretation in mind, we will therefore, examine the necessary provisions of the Constitution touching on the definition and meaning of the word "child" in the Constitution. [11] We start with Article 266 of the Constitution which defines a 'child' as follows: "child" means a person who has attained, or is below, the age of eighteen years. (Emphasis added). [12] Apart from defining the word 'child' the Constitution has also defined other similar words and phrases such as 'adult' and a 'young person' in the following terms: "adult" means a person who has attained, or is above, the age of nineteen years: (Emphasis added). CRS CamScanineir ... "young person" means a person who has attained the age of fifteen years, but is below the age of nineteen years; (Emphasis added). [13] From a reading of the above definitions, we note that they contain catch words such as "attained", "above", "below" and "age". We have endeavored to look up the meaning of these catch words in ordinary parlance in order for us to decipher the context in which they were used by the drafters of the Constitution. [14] Since these catch words have not been defined but used as ordinary words in the Constitution , we look at the definitions as given in the Concise Oxford Dictionary (1995) (9th Edition) which defines these words as follows: attain (1) to arrive at; reach (a goal etc.); (2) gain, accomplish (an aim, distinction etc.); (3) arrive at by conscious development or effort ... age 1) the length of time that a person or thing has existed or is likely to exist; 2) a particular point in or part of one's life often as a qualification (old age; voting age); 3) come of age, reach adult status (especially in law at 18, formerly 21). below lower in position than or less than in amount or degree above CR6 . . ' 1) over; on top of; higher, - -- -·- - - - 2) more than or higher in rank, position, importance etc ... . 3) beyond the reach of ... [15] It is our considered view that from the reading of the above definitions, these catch words have been used in Article 266 of the Constitution to imply the achievement of a certain legal status. From the above definitions, the plain meaning is that there is a distinction between a 'child' and an 'adult' such that a person is deemed to be a child if that person has attained or is below the age of eighteen years, whereas a person is deemed to be an adult if that person has attained or is above the age of nineteen years. [16] We also note that the Constitution recognizes another category of persons defined as 'young person' to mean a person who has attained the age of fifteen years, but is below the age of nineteen years. The issue of young person is not applicable as the reference before us only seeks interpretation of the definition of a child as provided for in Article 266 of the Constitution. [17] Although the Constitution has defined and drawn a distinction between a child and an adult, the referring court seems to find it difficult to categorize a person who has attained the age of eighteen years but is CR7 I CamScann1er below the age of nineteen years into either a child or an adult. This is the issue that needs to be resolved by this Court. [18] Owing to this perceived gap and in order to bring clarity to the issue, we will explore the intention of the framers of the Constitution in enacting the definitions highlighted in Article 266 by considering the Report of the Technical Committee on Drafting the Zambian Constitution (2012). ('the Report') and other relevant provisions bearing on the subject. [19] Under Article 311 of the Report, the words 'child' and 'adult' were defined as follows: Child means a person who is below the age of eighteen years and "children" shall be construed accordingly. Adult means an individual who has attained, or is above the age of eighteen years. (20] The framers went on to give the rationale for the definition section in the following terms at page 286: The rationale for the Article is that, it is standard practice for the Constitution to provide definitions for words and terminologies in the context they will be used in the Constitution so as to avoid ambiguity. [21] It can be observed from the definition under Article 311 of the Report that, the framers of the draft Constitution intended for a child to be any CR8 CamScann1er . ' person below the age of eighteen years, while adult status was to be achieved when a person attained the age of eighteen years. [22] The definition of a child in the Report is not what is found in the Constitution. The Constitution specifically provides that to be considered a child you ought to have attained or are below the age of 18 years. [23] A literal reading of the Constitution will lead to a conclusion that indeed the framers of the Constitution were thinking that the definition of a child in the Constitution means that when a person attains the age of 18 then from there on, he/she is legally eighteen until his/her next birthday. This follows a school of thought that the gap between ages eighteen and nineteen should be considered eighteen and therefore, a person in that age range will be considered a child in terms of Article 266 of the Constitution. [24] This however, is not how the definition in the Constitution should be interpreted. In the words of the learned author, Aharon Barak the former President of the Supreme Court of Israel in his book, Purposive Interpretation in Law: A constitution is a legal text that grounds a legal norm. As such it should be interpreted like any other legal text. However, a constitution CR9 sits at the top of the normative pyramid. It shapes the character of society and its aspirations throughout history. It establishes a nation's basic political points of view. It lays the foundation for social values, setting goals, obligations and trends. It is designed to guide human behavior over an extended period of time, establishing the framework for enacting legislation and managing the national government. It reflects the events of the past, lays a foundation for the present, and shapes the future. It is at once philosophy, politics, society and law. The unique characteristic of a constitution warrants a special interpretative approach to its interpretation, because it is a constitution we are expounding. [25] This narrative of how to interpret a constitution resonates with our Article 267 (1) of the Constitution which we highlighted in paragraph 8 of this Reference. [26] In order for us to address the seeming gap between the ages of childhood and adulthood as provided for in Article 266 of the Constitution, we shall use the purposive interpretation of the Constitution. [27] Further, we will also apply the principle of constitutional interpretatio~ reiterated in the case of Milford Maamba and Others v The People2 that all the relevant provisions bearing on the subject for interpretation should be considered together as a whole in order to give effect to the objective of the Constitution. CRlO [28] Further clarity on the issue is evident in other provisions in that the - - ---~---·- ····- - - -· ... Constitution uses the phrase 'attained the age of eighteen years' in Articles 37 and 46. In Article 37 (1) of the Constitution it provides as follows: Subject to clause (2), a person is entitled to apply to the Citizenship Board of Zambia to be registered as a citizen if that person has attained the age of eighteen years and- (a) was born in Zambia and has been ordinarily resident in Zambia for a period of at least five years; (b) was born outside Zambia, has or had an ancestor who is, or was, a citizen and has been ordinarily resident in Zambia for a period of at least five years; or (c) has been ordinarily resident in Zambia for a continuous period of at least ten years; immediately preceding that person's application for registration, as prescribed. (Emphasis added). [29] Article 46 of the Constitution, provides as follows: A citizen who has attained the age of eighteen years is entitled to be registered as a voter and vote in an election by secret ballot. (Emphasis added). [30] What we decipher from these constitutional provisions where the age has been capped is that in the case of citizenship by registration , for one to be eligible to apply for registration as a citizen of Zambia that CR11 person among other conditions must have attained the age of eighteen years. Further, a citizen of Zambia has a constitutional right to register as a voter and vote in an election when he/she attains the age of eighteen years . [31] In common parlance these scenarios represent age gapping. It is our considered view that the framers of the Constitution had in mind the majority age of eighteen when they provided that those that attain age eighteen are eligible to be registered as citizens by registration and to register and vote in an election by secret ballot respectively. [32] We are of the further considered view that it is the intention of the Constitution to allow those that attain the age of eighteen to gain full legal rights and responsibilities. This age gapping in fact marks the transition from childhood to adulthood, where individuals are expected to take responsibility for their actions. Only a person who at law is presumed to be an adult can be allowed to apply for registration as a citizen by registration on their own and exercise the right to register and vote in an election respectively. The implication is that once you attain the age of eighteen, the law permits you to take actions and responsibilities that a child cannot take. CR12 CamScanner [33] It is worth noting that the purposive interpretation we have given to the term child as defined in the Constitution and as contained in the Technical Committee Report, mirror the definition of a child as provided in the International Convention on the Rights of a Child (CRC) and the African Charter on the Rights and welfare of the Child (AFRWC). Zambia having ratified the said Conventions in 1998 and 2008, respectively is bound by them. Article 1 of the CRC defines a child as follows: For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. [34] Article 2 of the AFRWC mirrors Article 1 of the CRC. [35] Based on the foregoing , it is clear that it is universally accepted that a person or an individual is deemed to be a child if that person is below the age of eighteen. We believe that this was the intention of the framers of the Zambian Constitution as seen from the use of the phrase "attained the age of eighteen years" in Articles 37, 46 and 266 of the Constitution. CR13 • I CamScanner [36] We therefore, hold that the definition of child under Article 266 of the Constitution means any person who is below the age of 18. A person who is over the age of 18 is therefore, not a child . ............................. ~ ........................ . M. M. MUNALULA (JSD) CONSTITUTIONAL COURT PRESIDENT ~ :) ·~ ····································~ A. M. SHILIMI CONSTITUTIO C URT DEPUTY PRESIDENT .................. . .. 1 ..................... . M. USA UKE CONSTITUTIONA COURT JUDGE M. K. CHISUN CONSTITUTIONAL C URT JUDGE ................... rzy a. M.t:t. i5 ................. . M .·r~,.· ·KAwi~,sE· CONSTITUTIONAL COURT JUDGE l . K. MULIFE CONSTITUTIONAL COURT JUDGE CR14 CamS,canner Mwandenga JC, concurring. [37] I have had the opportunity to read the opinion penned by my brother Musaluke JC. I agree with the outcome it proposes and I endorse the reasoning provided save to the extent indicated in this opinion. Therefore, I have decided to write separately to underscore a simple path that leads to the same outcome. [38] Before I give my opinion in this matter I wish to observe from the foregoing matters, that the High Court was ostensibly faced with a question relating to the Constitution hence the reference to this Court. Proceeding in the manner that the learned presiding Judge did, was in keeping with Article 128(2) of the Constitution and was proper. Article 128(2) of the Constitution provides in clear terms that: Subject to Article 28(2), where a question relating to this Constitution arises in a court, the person presiding in that court shall refer the question to the Constitutional Court. [39] The Court has had occasion to pronounce itself on the purport and meaning of Article 128(2) of the Constitution in the case of Fredson Kango Yamba v The Principal Resident Magistrate, Anti Corruption Commission and the Attorney-General 3 when it said: CR15 CamScanner Article 128(2) of the Constitution takes care of a scenario where a constitutional issue arises in any court by providing for referral. In such instances, the court, on its own motion or on application by a party, can refer a constitutional question or issue that arises in that court. Where this is done, the referring court must frame the constitutional question or issue for this Court's determination ... (Emphasis added). [40] In the circumstances of th is case therefore, indeed the learned presiding Judge properly referred the issue to the Court. The learned presiding Judge thus referred to the Court " ... the issue of the definition of a child is as set out in Article 266 of the Constitution ... " In this regard it is observed that the issue, that was referred to the Court was a pointed and specific one. The issue is about the meaning of the child as set out in Article 266 of the Constitution and not the meaning of child inter alia as set out in international or regional human rights instruments. In my view Courts, may however use international and/or regional human rights as a tool(s) of interpreting domestic constitutional provisions or laws, particularly when the language is ambiguous or when there is need to clarify the scope and contents of rights. In this matter though , I am of the considered view that the language of Article 266 of the Constitution vis-a-vis the definition of a "child" is not ambiguous and there is no need to expound on scope and CR16 Cams-canner - - - - - contents of rights . The Court in my view is therefore required to deal only with the constitutional issue posed by the presiding Judge without recourse to international or regional human rights instruments. [41] The starting point therefore, has to be Article 266 of the Constitution and nothing else. Article 266 of the Constitution provides for definitions of certain words and/or phrases used in the Constitution, as prior to providing the definitions it clearly states that: In this Constitution, unless the context otherwise requires-.. . (Emphasis added). [42] With the immediate foregoing matters in mind, therefore I opine that the definitions so provided are meant to aid in interpreting or understanding certain words, phrases or provisions in the Constitution itself. Some of the definitions in Article 266 of the Constitution have however, been incorporated expressly or by implication in or by other legislation. A case in point is the Children's Code where "Child" is defined in the following manner: "Child" has the meaning assigned to the word in the Constitution. (See section 2 of the Children's Code). CR17 I CamS,canner ' . , [43] I digress, this manner and style of drafting can also be seen in a number of pieces of legislation especially those that were drafted after the 2016 amended Constitution came into force. [44] Coming back to the issue at hand in the context of the reference before the Court therefore, simply put the question is: In Article 266 of the Constitution what is the definition of "child"? [45] In this regard Article 266 of the Constitution provides that: "In this Constitution, unless the context otherwise requires- "child" means a person who has attained, or is below, the age of eighteen." (Emphasis added). This definition as of necessity requires the Court to also decipher the meaning of the word a "person." In this regard Article 266 of the Constitution defines a "person" as meaning " ... an individual, a company or an association of persons, whether corporate or unincorporate; ... " (Emphasis added). [46] Therefore, the combined effect of the definition of a "child" and a "person" under Article 266 of the Constitution is that a "child" under the Constitution means an individual who has reached the age of 18 or is below the age of 18. CR18 •• • l I ' • [47] Without attempting to interpret section 2 of the Children's Code (which this Court is not empowered to do by Article 128 of the Constitution), which states inter alia that "child" has the meaning assigned to the word in the Constitution, all I can say is that the Children's Code merely incorporates the definition of a "child" from the Constitution into the Children's Code. Therefore, a "child" under the Children's Code bears the same meaning as that provided for in the Constitution. Simply put a child under Children's Code is an individual who has reached the age of 18 or is below the age of 18. A corollary to this is that any person who is over the age of 18 is therefore not a child in the context of Article 266 of the Constitution. [48] I am however, alive to the fact this position does not help resolve the issue which the learned presiding Judge pointed out when he stated that " ... However, inexplicably Section 71(2) of the Act which provides for a certificate signed by a health practitioner refers to the age of a person below nineteen years of age." [49] On account of the fact that the issue referred to the Court was a pointed and specific one as observed in paragraph 4 7 above and therefore does not specifically deal with section 71 (2) of the Children's Code and CR19 more importantly as Article 128 of the Constitution restricts inter a/ia the Court to interpreting the Constitution, I resist the temptation to say anything concerning or touching on section 71 (2) of the Children's Code. ---~ - ----- -- -- -------- --- --- ------ - M. Z. MWANDENGA CONSTITUTIONAL COURT UD CR20 CamScanne1r