Can ADR Be Used in Criminal Cases in Zambia? Practical Guidance for Prosecutors, Defence & Victims

The question of ADR in criminal cases Zambia has moved from academic debate to live policy in 2026, driven by the Judiciary’s public advocacy and the presentation of the Draft ADR Bill to government. Subject to legal limits, alternative dispute resolution can already be used in appropriate criminal matters in Zambia, principally as diversion or as an adjunct to sentencing, provided consent, public-interest and safeguarding conditions are met. This guide gives prosecutors, police, defence lawyers, victims’ representatives, court administrators and policy-makers the practical protocols, checklists and enforceability analysis that high-level advocacy has so far left unaddressed.

It takes a clear position on when to use each ADR method, when to refuse referral, and what the Draft ADR Bill may change once enacted.

Last updated: 2026 (this article will be updated when the Draft ADR Bill text and any operational circulars are gazetted). This is general guidance, not legal advice, always take a jurisdictional check and seek qualified Zambian counsel before acting.

Quick overview: legal basis, current practice and the Draft ADR Bill

Who this article is for: prosecutors, police, defence lawyers, victims’ representatives, court administrators, NGOs and policy-makers evaluating whether and how to use ADR in criminal matters.

Quick answer: ADR, especially restorative justice and victim–offender mediation, can be used in Zambia in suitable criminal matters as diversion or as an adjunct to sentencing. Use it only where statutory or prosecutorial policy permits, where consent and safeguards are met, and where the matter is not excluded by severity or public interest. Until a dedicated ADR statute is enacted, stakeholders rely on existing criminal procedure, Judiciary guidance and prosecutor policy.

Current legal touchpoints

At present, ADR in criminal cases Zambia operates within the framework of existing criminal procedure and prosecutorial discretion rather than a dedicated statute. The Penal Code and the Criminal Procedure Code define offences, sentencing powers and the mechanics by which prosecutions may be discontinued or diverted; these primary instruments should be checked directly through the Parliament of Zambia and official statute sources. Prosecutorial policy and the discretion of the Director of Public Prosecutions govern whether a matter is negotiated, diverted or brought to full trial. Restorative practices have so far advanced through pilot programmes, NGO initiatives and judicial encouragement rather than a codified mandate.

The Judiciary of Zambia has publicly championed ADR in criminal cases, signalling institutional support for expanding these routes.

What the Draft ADR Bill proposes

The Draft ADR Bill was presented to government, as recorded publicly by the Zambia Law Development Commission. Observers expect the Bill to give statutory recognition to ADR pathways, introduce procedural safeguards, provide for the accreditation of ADR practitioners, define referral powers and set out enforcement mechanisms. For a fuller commercial-facing analysis of the reform, see our explainer on the Zambia ADR Bill, what the Draft ADR law could mean for businesses. Until the Bill text is gazetted, treat its proposals as indicative and monitor for the final scope of any criminal application, exclusions, mandatory-reporting rules and funding provisions.

Which ADR methods are usable (and suitable) in criminal cases?

Not every ADR modality fits the criminal context, and treating them as interchangeable is a mistake. The methods most relevant to ADR in criminal cases Zambia are victim–offender mediation, restorative justice conferences, community mediation or reparation panels, plea negotiation and diversion, and arbitration. Arbitration determines civil liability and cannot decide criminal guilt, it does not belong in the criminal process. The other four each have a defined and useful place, but only within limits set by offence severity, victim vulnerability and public interest.

Short, medium and longer lists of suitable offences

• Clearly suitable (low-level). Minor assaults without lasting injury, petty theft, criminal damage to property, neighbour and market disputes, first-time youth offending and low-value fraud where the harm is reparable.
• Suitable with caution (mid-level). Repeat property offences, mid-level fraud, and interpersonal disputes where a relationship must continue, usable only where consent is genuine and power imbalances are managed.
• Generally excluded (serious). Serious offences including homicide, serious bodily harm, sexual and gender-based violence, trafficking, and any offence against a highly vulnerable victim where negotiated diversion would defeat the public interest in prosecution.

Victim-centred versus public-interest concerns

Every referral decision balances two legitimate interests. The victim-centred interest prioritises repair, voice, restitution and welfare; the public-interest concern prioritises deterrence, denunciation of serious wrongdoing and protection of the community. Where these align, a reparable harm, a consenting and supported victim, an offender who admits responsibility, ADR may be appropriate. Where a serious offence demands public condemnation, or where a victim’s consent cannot be considered free of pressure, prosecution must proceed. Do not let convenience or case-load pressure override this test.

Comparison table, ADR methods versus criminal suitability

Decision framework, choosing between ADR options

• Choose victim–offender mediation when the victim and offender are known to each other, both consent freely, the harm is reparable, and preserving the victim’s welfare is the primary objective.
• Choose a restorative justice conference when the harm affects a community or involves young persons, and multiple stakeholders need to participate in the resolution.
• Choose diversion or plea negotiation when the public interest supports a negotiated outcome, the offender admits responsibility, and a statutory or policy-based diversion mechanism exists.
• Avoid ADR entirely when the offence involves serious bodily harm, sexual violence or trafficking, or where public-interest prosecution is essential.

Referral routes and procedural steps: prosecutors, police and courts

Sound referral discipline is what separates credible ADR in criminal cases Zambia from ad hoc informal settlements that undermine victims and the rule of law. Each referrer, police, prosecution, defence and court, has a distinct role, and each referral should be documented, assessed and time-bound. A pre-referral meeting should confirm consent, screen for vulnerability, test the public interest and record the proposed method and facilitator.

Police checklist before referral

1. Preserve all evidence and complete the investigation file before any referral, so prosecution remains possible if ADR fails.
2. Confirm that a victim exists and is identifiable, and arrange victim support before making contact about ADR.
3. Screen for vulnerability, age, disability, intimidation risk and any relationship of dependency or coercion.
4. Record the victim’s and offender’s provisional consent in writing, noting that consent must be free and informed.
5. Flag any public-interest concern that would make diversion inappropriate and escalate the matter to the prosecutor.

Prosecutor checklist

1. Apply the public-interest test: weigh seriousness, culpability, victim impact and community protection against the benefits of a restorative outcome.
2. Check the offender’s prior record and any pattern of similar offending that would counsel against diversion.
3. Confirm the offence falls within a category suitable for ADR and is not excluded by severity or statutory bar.
4. Verify genuine, uncoerced consent from both victim and offender, and that legal advice has been offered to the accused.
5. Select the appropriate method and a suitably qualified facilitator, and document the diversion or withdrawal instrument to be used if ADR succeeds.

Defence counsel’s role and client advisement

Defence counsel must ensure the accused understands that participating in ADR, particularly admitting responsibility in a restorative process, carries consequences. Advise the client on what is being waived, how any admission may be used, the difference between a diversion that avoids conviction and an agreement that merely mitigates sentence, and the risk that a failed ADR process may leave admissions exposed unless confidentiality protections apply. Counsel should never allow a client to enter a restorative process to relieve system pressure at the cost of the client’s legal position. Insist on written safeguards and clarity about what happens if the agreement breaks down.

Safeguards, consent, capacity and confidentiality

Robust safeguards are the price of legitimacy for ADR in criminal cases Zambia. Poorly run processes risk re-traumatising victims, coercing offenders and producing outcomes that courts will not respect. International standards, including the UNODC restorative justice resources, stress voluntary participation, trained facilitators, protection of vulnerable parties and clear limits on confidentiality. Adapt these to the Zambian context and build them into every referral protocol.

Best practice for informed consent

Consent must be free, informed and revocable. Explain the process, the possible outcomes, the right to withdraw at any point and the consequences of both success and failure. Screen actively for coercion, especially where the parties have an ongoing relationship or where one holds power over the other. Record consent in writing and confirm it again at the start of any conference or mediation. Confidentiality should protect what is said during the process, but participants must be told that mandatory reporting obligations, child-protection duties and the risk of future prosecution may limit that confidentiality.

Child and vulnerable adult safeguards

Where a child or vulnerable adult is involved as victim or offender, apply enhanced protections consistent with Zambia’s child-protection and juvenile-justice framework. Require the presence of a parent, guardian or independent supporter, use facilitators trained in working with children and vulnerable people, and involve specialist support services. Never proceed where a vulnerable participant cannot understand the process or where their participation cannot be made genuinely safe. In cases of sexual or gender-based violence, ADR is generally inappropriate, and the default position should be prosecution with victim support.

Costs, funding and who pays for ADR

Cost allocation is a live access-to-justice issue, and this guide takes a firm position: victims should not bear the cost of ADR in criminal cases Zambia. Where the state channels a matter out of prosecution into a restorative process, funding that process is properly a public responsibility. Common models include state-funded programmes, NGO-funded pilots, cost-sharing arrangements and court-ordered restitution or reparation paid by the offender to the victim.

• Default recommendation. Public funding for court- or prosecutor-referred criminal ADR, so access does not depend on means.
• Victim protection. Victims should never be charged for participating; any financial flow should run from offender to victim as reparation, not the reverse.
• Private mediation. Where parties opt for private mediation outside a public scheme, they may contractually decide who pays, but this should be the exception in criminal matters.
• Practical step. Build a cost-assessment field into every referral form and, where relevant, prepare a draft cost or reparation order for the court.

Outcomes, enforceability and legal effect

Understanding the legal weight of an ADR outcome is essential, because different modalities produce very different enforceable effects. An ADR agreement is not automatically a criminal order. Its effect depends on how the criminal process treats it and whether a court has adopted it.

How courts treat ADR agreements at sentencing

A successful victim–offender mediation or restorative conference typically operates as a mitigating factor at sentencing or, where the court adopts it, as a restorative order forming part of the disposal. A diversion decision by the prosecution may result in withdrawal of the charge on agreed conditions. The court retains ultimate control: it decides whether to record the agreement, reflect it in sentence, or reject it as inadequate. Practitioners should present ADR outcomes to the court clearly and in writing so the legal effect is documented.

Enforcement routes for reparation and breach

Where an agreement includes reparation, payment, work or return of property, enforcement routes vary. A reparation term adopted into a court order may be enforced as part of the sentence. A standalone reparation agreement may be enforceable through civil remedies. Breach of a diversion condition can result in the original prosecution being revived, subject to the terms of the diversion instrument. Relevant Zambian sentencing and restorative-justice case law can be located through the courts and legal databases such as SAFLII, and the governing statutory provisions checked via the Parliament of Zambia. Always spell out in the agreement what happens on breach, so that no party is left uncertain.

The Draft ADR Bill: what may change for criminal ADR

The Draft ADR Bill is a pivotal development for ADR in criminal cases Zambia. On present indications, the headline reforms may include statutory recognition of ADR pathways, codified procedural safeguards, a framework for accrediting ADR practitioners, defined referral powers, and clearer enforcement mechanisms for ADR outcomes. The likely practical effect would be to convert today’s discretionary, pilot-based practice into a more structured, auditable system with clearer entry points and protections.

Several provisions warrant close attention once the text is published: the precise scope and any exclusions for serious offences; the mandatory-reporting and confidentiality rules; the accreditation standards for facilitators; and the funding model. Guidance from the Ministry of Justice and any Judiciary operational circulars will shape day-to-day implementation.

Immediate practical implications for stakeholders

• Police. Expect standardised referral criteria and documentation, replacing informal practice with an auditable process.
• Prosecutors and the DPP. Expect statutory backing for diversion decisions, alongside clearer accountability for the public-interest test.
• Courts. Expect clearer powers to adopt, record and enforce ADR outcomes, and to refer suitable matters to accredited processes.

Practical tools: referral form fields and sample consent wording

Use copy-ready tools to make referrals consistent. A criminal ADR referral form should capture the following fields:

• Offence details. Charge, date, brief facts, and whether the offence is within a suitable category.
• Victim information. Contact details, support arrangements, and any vulnerability notes.
• Offender information. Prior record, admission status, and legal representation confirmed.
• Consent statements. Signed, dated confirmation from both parties that consent is free, informed and revocable.
• Proposed method and facilitator. ADR type selected and the facilitator assigned.
• Cost and enforcement notes. Funding source and the instrument to be used if the process succeeds or fails.

Sample consent clause: “I confirm that I understand the nature and purpose of this restorative process, that my participation is voluntary, that I may withdraw at any time, and that I have been advised of the possible outcomes and of the limits of confidentiality. I give my free and informed consent to take part.”

Recommended next steps for stakeholders and training priorities

• Prosecutors and police. Adopt written pilot protocols, standard referral forms and a documented public-interest test.
• Defence and victims’ NGOs. Build advisory scripts on rights, consequences and safeguards, and establish victim-support pathways.
• Court administrators. Prepare templates for recording and enforcing ADR outcomes, and begin collecting outcome data.
• All stakeholders. Invest in facilitator training and accreditation, so capacity is ready when statutory recognition arrives.

Conclusion: a clear position on ADR in criminal cases Zambia

The recommendation is straightforward. ADR in criminal cases Zambia can be used for low- to mid-level offences where a victim is identifiable, consent is genuine, harm is reparable and the public interest is served, with victim–offender mediation and restorative conferences as the default tools. Refuse ADR for serious violence, sexual and gender-based crime and trafficking, where prosecution must prevail. Document every referral, protect vulnerable parties, fund the process publicly, and record outcomes so courts can give them proper legal effect. With the Draft ADR Bill poised to formalise these pathways, stakeholders who build sound protocols now will be ready to operate a credible, statutory system the moment it arrives.

Sources

1. Judiciary of Zambia, Championing ADR in Criminal Cases
2. Zambia Law Development Commission, Draft ADR Bill announcement
3. SAFLII, Southern African case law and legislation databases
4. Parliament of Zambia, Acts and legislative information
5. Ministry of Justice, Republic of Zambia
6. United Nations Office on Drugs and Crime, Restorative Justice resources