Transfer of Convicted Persons

Transfer of Convicted Persons [No. 26 of 1998 269
GOVERNMENT OF ZAMBIA
ACT
No. 26 of 1998
Date of Assent: 22nd December, 1998
A n Act to provide for the transfer between Z a m b i a and
other specified or designated countries of persons for the
time being imprisoned in prisons, hospitals or other
institutions under orders m a d e in the course of the
e x e r c i s e by courts and tribunals of their criminal
jurisdiction; and to provide for matters connected with
or incidental to the foregoing. [28th December, 1998
E N A C T E D by the Parliament of Zambia. 1. This Act may be cited as the Transfer of Convicted
Persons Act. 1998. and shall come into operation on such date
as the Minister may. by statutory instrument, appoint. 2.

d as the Transfer of Convicted
Persons Act. 1998. and shall come into operation on such date
as the Minister may. by statutory instrument, appoint. 2.

( I ) In this Act unless the context otherwise requires—
" appropriate authority " means the person responsible
under an enactment of a specified or designated country
for administering the transfer of convicted persons to
and from that specified or designated country, and
includes the lawful delegate of such person;
** C o m m i s s i o n e r " m e a n s t h e p e r s o n a p p o i n t e d
Commissioner of Prisons under section ten of the
Prisons Act;
" Commissioner for Juvenile Welfare " means the person
appointed Commissioner for Juvenile Welfare under
section five of the Juveniles Act;
Enactmeni
Short title
and
commerue-
ment
Interpretation
Cap. 9;
Cap. 5.i

ed Commissioner for Juvenile Welfare under
section five of the Juveniles Act;
Enactmeni
Short title
and
commerue-
ment
Interpretation
Cap. 9;
Cap. 5.i

270 No. 26 of 1998] Transfer of Convicted Persons
" convicted person " means any person w h o —
{a) is a citizen or an ordinary or permanent resident
of Zambia, or has ciose ties with Zambia; and
:
'j convicted and sentenced in a specified or
-icsignated country t o —
(i) an effective term of imprisonment of
which the unexpired portion at the time
that an application under section four is
m a d e is not less than six months; or
(ii) an indeterminate period of imprison
ment; and includes a convicted person
released on licence from such sentence;
" designated country " means any country, not being a
C o m m o n w e a l t h country, designated as such by the
Minister under section three;
" foreign convicted person " means any person w h o —
(a) is not a citizen of Zambia;
(b) is a citizen of, or is ordinarily or permanently
resident in, a specified or designated country
or has close ties with a specified or designated
country; and
(c) is convicted and sentenced in Z a m b i a t o —
(i) an effective term of imprisonment, of
which the unexpired portion at the time
that an application in terms of sectior.

tenced in Z a m b i a t o —
(i) an effective term of imprisonment, of
which the unexpired portion at the time
that an application in terms of sectior.

/ o u r i s m a d e , is not less than six months;
or
(ii) an indeterminate period of imprison
ment; and includes a foreign convicted
person released on licence from such
sentence;
" imprisonment " includes—
(a) the placement of juvenile in a training institute
or reform school in terms of section ten of the
Cai. 53 Juveniles Act;

imprisonment " includes—
(a) the placement of juvenile in a training institute
or reform school in terms of section ten of the
Cai. 53 Juveniles Act;

Transfer of Convicted Persons [No. 26 of 1998 271
(b) the detention of a person, at the pleasure of the
President, in an institution in terms of section
one hundred and sixty-three of the Criminal Cap.88
Procedure Code; and
(c) any form of restraint of liberty analogous to
paragraph (a) or (b) that applies in a specified
or designated country. "judgement" means the final judgement of a court or tribunal
in which a person is convicted and sentenced;
"juvenile " means a person below the age of nineteen years;
" mentally disordered convicted person " means any convicted
person who has been certified as being mentally disordered
by a medical doctor;
" specified country " means a Commonwealth country or
territory specified under section three\
" transferred convicted person " means a convicted person
transferred under section five.

onwealth country or
territory specified under section three\
" transferred convicted person " means a convicted person
transferred under section five.

(2) In determining whether or not aperson has close ties with any
country, the following factors shall be taken into account:
(a) whether or not that person is a citizen of that country;
(b) whether or not that person was born in that country or is
descended from persons who were born in that country;
(c) whether or not that person has resided in that country, and
if so, the period of such residence;
(d) whether or not that person has any relatives by birth or
marriage in that country and the degree of relationship,
or
(e) anv cultural or religious ties that the person may have with
that countn
3. (I) This Act shall apply to the transfer of convicted persons ApptR^non
and foreign convicted persons to and from Zambia and any specified
or designated country—
(a) with which Zambia has entered into an agreement for the
transfer of convicted persons; and
(b) which has enacted similar legislation.

ted country—
(a) with which Zambia has entered into an agreement for the
transfer of convicted persons; and
(b) which has enacted similar legislation.

272 No. 26 of 1998] Transfer of Convicted Persons
Application
for and
agreement to
transfet
convicted
persons
(2) The Minister may, aftef consultation with the Attorney-
General, by statutory order—
(a) specify a Commonwealth country or territory for the
purposes of this Act; and
(b) designate any country notbeingaCommonwealthcountry
as a designated country for the purposes o / this Act. 4. (I) Subject to the other provisions of this section, an
application under this Act may be made to the appropriate authority
b y -
(a) the convicted person;
(b) the Attorney-General;
(c) a relative; or
(d) any other interested person or body.

ade to the appropriate authority
b y -
(a) the convicted person;
(b) the Attorney-General;
(c) a relative; or
(d) any other interested person or body.

(2) Notwithstanding the provisions of subsection (1) an application
under this Act may be made in Zambia on behalf of a foreign
convicted person by any other person where there is provision for
a similar application to be made on behalf of a convicted person in
the specified or designated country to which the foreign convicted
person wishes to be transferred,
( 3 ) Notwithstanding the other provisions of this section an
application for a transfer shall not be made under the provisions of
this Act where the convicted person or the convicted foreign person
is convicted and sentenced to death. (4) Where an appropriate authority agrees to give effect to an
application to transfer a convicted person to Zambia in terms of this
Act, it shall submit to the Minister—
fa) the application in the prescribed form;
(b) a copy of the judgement relating to the convicted person
which shall be certifiejj as correct and signed by the
appropriate authority; and
{c) such other document or.in formation that the Minister may
require for the purposes of processing the convicted
person's application for a transfer.

c) such other document or.in formation that the Minister may
require for the purposes of processing the convicted
person's application for a transfer.

(5) A copy of the judgement referred to in subsection (4) shall
be accepted as conclusive proof of the facts stated therein and shall
have effect as if it were a judgement of a court of competent
jurisdiction within Zambia.

ed as conclusive proof of the facts stated therein and shall
have effect as if it were a judgement of a court of competent
jurisdiction within Zambia.

Transfer of Convicted Persons [No. 26 of 1998 273
(6) The conviction or sentence of a convicted person transferred
to Zambia under this Act shall not be subject to any appeal or review
in Zambia. 5. ( h Upon receipt of an application under subsection (I) of
section four the Minister shall, after consultation with the Attorney-
General andtheCommissioner. indicate in writing, to the appropriate
authority, whether or not the Minister agrees to transfer to Zambia
the person applying for such a transfer. (2) The Minister shall refuse the convicted person's application
for a transfer where—
la) the convicted person has not obtained final judgement on
appeal from the final court of appeal of the specified or
designated country; or
lb) there is no agreement regarding the cost of the transfer as
provided under section fourteen. 6.

appeal of the specified or
designated country; or
lb) there is no agreement regarding the cost of the transfer as
provided under section fourteen. 6.

{!) If the Minister agrees to transfer to Zambia a convicted
person under subsection (1) of section/ire the Minister shall, al the
time of indicating agreement to the appropriate authority or after
such further consultations with the appropriate authority as may be
necessary, issue a warrant in the prescribed form to the appropriate
authority—
la) authorising the transfer of the convicted person to Zambia
from the specified or designated country concerned; and
lb) specifying or confirming any arrangements for effecting
the transfer of the convicted person. (2) The Minister shall at the time of issuing a warrant under
subsection (I) cause a copy of the warrant to be served on the
Commissioner-. 7. A transferred convicted person shall be imprisoned in Zambia
for the unexpired term of the convicted person's imprisonment:
Provided that the period between the issue of a warrant in respect
of the convicted person in terms of section six and the date of the
convicted person's arrival in Zambia shall count as part of the
convicted person's sentence of imprisonment. 8.

rms of section six and the date of the
convicted person's arrival in Zambia shall count as part of the
convicted person's sentence of imprisonment. 8.

( 1 ) A transferred convicted person shall—
la'i be credited with any remission of a sentence of
imprisonment to which the convicted person has become
entitled at the date of the convicted person's transfer in
Grant 01
refusal ol
application
by Minister
Issue tit
wavrant
Imprisonment
of c o m iciccl
person
R e m i s s i o n

the convicted person's transfer in
Grant 01
refusal ol
application
by Minister
Issue tit
wavrant
Imprisonment
of c o m iciccl
person
R e m i s s i o n

274 No. 26 of 1998] Transfer nf Convicted Persons
accordance with the law relating to remission in force in
the specified country from which the convicted person
has been transferred; and
C i p M? (b) be entitled to earn remission under Part XIV of the Prisons
Act in respect of the unexpired term of the convicted
person's sentence that remains t o be served on the date
of the convicted person's arrival in Zambia as if the
convicted person had been sentenced to a term of
imprisonment of the same length by a court in Zambia. (2) Any remission of a sentence of imprisonment referred to in
paragraph fa J o f subsection (1) shall be liable to forfeiture under Part
Ca
P-')7
XUI of the Prisons Act. Pardon. o,_ ()) Subjeci to the other provisions o f this Act the Minister
.imneMy and s n a l l , i n granting; the application o f the foreign convicted person
under section eleven, vet the following conditions—
(a) that the Head of State of the specified o r designated
country shall not.

ign convicted person
under section eleven, vet the following conditions—
(a) that the Head of State of the specified o r designated
country shall not.

except with the written consent of the
Minister, grant to such transferred foreign convicted
person a pardon or amnesty on a sentence imposed by a
Zambian Court o r have such sentence commuted under
the constitution orother laws of the specified or designated
country concerned;
(h) that the conviction or sentence of a foreign convicted
person transferred to a specified or designated country
under this Act shall not b e subject to any appeal or review
in the specified or designated country concerned. (2) The President may, with the consent of the appropriate
.'authority of the specified or designated country concerned ;-a:-k»r<_
Cap. 1 a t r a n s f e r r e d convicted person under A r t i c l e 59 of the Constitution. *u'-onile ,;nd 10. (II W h e r e an application undes section fut^ r d a f e A to ?. nienictiiy convicted person who is a invernle "J-y-: Minis1
, ;;hal\ afV
d»i:jiJ\-ieu" consultation w i t h the C o m m i s s i o n : " f ' n'lv W.'-"" :\v ino
L-onvici-jd m w riurig to the appropriate authority w h i t e r or 're- M;;*. ter
agrees to transfer t o Zambia the juvenilv convicted perso*!. (2) Where the Minister agrees to transfer to Zambia .

rity w h i t e r or 're- M;;*. ter
agrees to transfer t o Zambia the juvenilv convicted perso*!. (2) Where the Minister agrees to transfer to Zambia .

ju rnife
convicted person under subsection <! Mhe Minister J
prescribed warrant to the appropriate authority under subsection (1 >
of section six. ( 3 ) Where an application under section^wr relates to a mentally
disordered convicted person the Minister s h a l l , after consultation

section six. ( 3 ) Where an application under section^wr relates to a mentally
disordered convicted person the Minister s h a l l , after consultation

Transfer of Convicted Persons [No. 26 of 1998 275
with the person responsible for the movement of mentally disordered
persons under the Mental Disorders Act indicate in writing to the
appropriate authority whether or not the Minister agrees to the
transfer to Zambia of the mentally disordered convicted person. (4) Where the Minister agrees to transfer to Zambia a mentally
disordered con victed person, the person responsible for the movement
of mentally disordered persons under the Mental Disorders Act
shall, upon arrival in Zambia of the mentally disordered or defective
convicted person, make an application in terms of section six of the
Mental Disorders Act for the issue of a warrant in respect of the
mentally disordered convicted person. 11. (1) Where a foreign person—
(a) is convicted and sentenced after the commencement of
this Act, the judge or magistrate con victing and sentencing
that foreign person shall inform the foreign person of the
provisions of this Act; or
t b) was convicted and sentenced before the commencement
of this Act, the Commissioner shall inform the foreign
convicted person of the provisions of this Act.

convicted and sentenced before the commencement
of this Act, the Commissioner shall inform the foreign
convicted person of the provisions of this Act.

(2) If a foreign convicted person wishes to be transferred out of
Zambia in terms of this section to a specified or designated country
of which the foreign convicted person is a citizen or is ordinarily
resident or to which the foreign convicted person has close ties, the
foreign convicted person may apply in the prescribed form and
submit the application to the Commissioner. (3) The Commissioner shall forward any application made under
subsection (2) to the Minister, together with such written
recommendations on the application as the Commissioner thinks fit. (4) Upon receipt of the application made under subsection (2)
the Minister shall request the appropriate authority of the specified
or designated country concerned to furnish information indicating
whether or not die offence for which the foreign convicted person
has been sentenced in Zambia is an offence in such specified or
designated country.

whether or not die offence for which the foreign convicted person
has been sentenced in Zambia is an offence in such specified or
designated country.

(5) Where in response to the request made in subsection (4) the
Minister is informed by the appropriate authority of me specified or
designated country concerned that the offence for which the foreign
convicted person has been sentenced in Zambia—
(a) is not an offence in the specified or designated country, the
Minister shall not agree to the application;
Cap. 305
Cap. 305
Cap. 305
Transfer of
foreign
convicted
persons

the specified or designated country, the
Minister shall not agree to the application;
Cap. 305
Cap. 305
Cap. 305
Transfer of
foreign
convicted
persons

276 No. 26 of J 9^8] Transfer of Convicted Persons
(b) it an offence in the specified or designated country
concerned, the Minister may, subject to the other
provisions of this Act, agree to the application. (6) Wheic the Minister agrees to an application made under
subsection i 1), the Minister shall submit to the appropriate authority
of [he spec! -:4 or designated country concerned—
(a) the Application or a certified copy of the application;
(b) a cony of the judgement relating to the foreign convicted
person or an adequate summary of the judgement as may
be required by the specified or designated country
concerned,certified as correct and signed by the Registrar
of the High Court or the clerk of magistrate's court
which tried the foreign convicted person, as the case may
be; and
(c) such other document or information as the appropriate
authority may require for the purposes of effecting the
transfer of the foreign convicted person.

uch other document or information as the appropriate
authority may require for the purposes of effecting the
transfer of the foreign convicted person.

(7) If the specified or designated country concerned agrees to
the transfer of the foreign convicted person—
(a) the Minister shall order such transfer upon receipt by the
MinistCTofawarrantorouwdcoimem
authority of the specified or designated country concerned
authorising the transfer and srjecifying or confirming any
arrangements for-effecting the transfer; and
(b) the Commissioner shall, upon being served by the Minister
with such a warrant or document, effect the transfer in
accordance with the arrangements stated in the warrant
or document. (8) An application for the transfer of a foreign convicted person
under this section may, subject to section four, be made to the
Commissioner on behalf of the foreign convicted person by—
(a) an appropriate authority; or
{b)$ relative; or
(c) any other interested person or body. 12, (I) Where an application under subjection (1) of section
four relates toa juvenile or a mentally disordered convicted person,
the person legally entitled to act on behalf of the convicted person
concerned may complete the application. Applications
oi'convicisd
persons or
foreign
convicted
persons under
legal or othei
debility

convicted person
concerned may complete the application. Applications
oi'convicisd
persons or
foreign
convicted
persons under
legal or othei
debility

Transfer of Convicted Persons [No. 26 of 1998 277
(2) This section shall apply, with necessary modification, to
foreign convicted persons. 13. (J ) Where the convicted person or foreign convicted person
is being transferred under this Act that person shall be deemed to be in
lawful custody and subject, in the event of escape or an attempt to
escape, to the same punishment as if the convicted person or foreign
convicted person were in Zambia. (2) Any person who aids a convicted person or foreign convicted
person \n escaping or attempting to escape from lawful custody while
being transferred under this Act shall be guilty of an offence and shall
be liable on conviction to imprisonment for a term not exceeding seven
years. 14. The cost of the transfer shall be borne by the Government of
Zambia and the specified or designated country in such proportions as
may be agreed by the two countries regarding any particular transfer. 15.

ent of
Zambia and the specified or designated country in such proportions as
may be agreed by the two countries regarding any particular transfer. 15.

The Minister may by regulation, prescribe—
(aI the form to be used in an application under sections./b«r and
eleven:
(bj the procedure to be followed for the enforcement in Zambia
of a sentence imposed on a convicted person in a specified
or designated country;
(c) the form of warrant to be issued under section six;
(d) any other matter required or necessary to be prescribed under
this Act. Convicted
persons and
foreign
con vie led
persons in
Sawfui
custody
during
transfer
Cost of
transfer
Regulations