ZAMBIAN OPEN UNIVERSITY SCHOOL OF LAW

AN EXAMINATION OF THE ADMISSIBILITY OF CONFESSIONS IN THE LAW OF EVIDENCE

BY

JOEL .L. MULEMWA

ZAOU 2015

ZAMBIAN OPEN UNIVERSITY

SCHOOL OF LAW I recommend that the directed research prepared under my supervision by Joel .L. Mulemwa, entitled:

AN EXAMINATION OF THE ADMISSIBILITY OF CONFESSIONS IN THE LAW OF EVIDENCE

Be accepted for examination. I have checked it carefully and I am satisfied that it fulfils the requirements pertaining to format as laid down in the regulations governing directed research.

A directed research submitted to the School of Law of the Zambian Open

University in partial fulfillment of the requirement for the award of the

Bachelor of Laws Degree (LL.B)

………………………………… ………………………………… DR. FREDRICK NG’ANDU DATE (SUPERVISOR)

DECLARATION

I, JOEL. L. MULEMWA, COMPUTER NUMBER 21210736 DO HEREBY declare that this

research paper represents my own work, and where other people’s work has been used, due

acknowledgements have been made. This paper has not been submitted to the Zambian Open

University, or any other institution for any academic awards to the best of my knowledge. No

part of this work may be reproduced or copied in any manner without the written consent and or

prior authorisation of the author.

………………………………… …………………………………

(Authors Signature)

JOEL .L. MULEMWA DATE

DEDICATIONS

This work is dedicated to the memory of my late parents, Mr. Richardson Lubasi Mulemwa

and Mrs. Jane Malila Mulife Mulemwa. To my beloved father, i wish to thank you for

providing an example of excellence early in my life although shot lived from which i could build

on. To my beloved late mother and friend who could not see this day, words can never express

my gratitude for the invaluable advice and seed of hard work and dedication you imparted in me.

I thank you for always believing me and sharing in my dream of being Counsel and showing me

that there is nothing impossible in life with passion and dedication.

To my beloved brothers Obby Mumba, Mainga Mulemwa and Mutukwa Mulemwa, i thank

you guys for the positive words of encouragement and support in the duration of my study.

Special thanks to you my young brother Mutukwa Mulemwa for always pushing me to settle

for nothing but the best in my academia.

.

(i)

ACKNOWLEDGEMENTS

Special thanks go to my Supervisor, Dr. Fredrick Ng’andu for the amount of trust you showed

in me during the production of this paper and for guiding me throughout this work.

I extend my special thanks to my learned brothers and friends Edwin Mbewe II and Ray

Mulenga Mukwavi, we have come a long way, and every moment has been worth the time. I

thank you for the support, guidance and pushing me to the realisation of our dreams even when

things seemed bleak, to you Counsel i salute and pray that the future brings more glory as the

past has in our quest to the Legal Profession.

I wish to also extend my special thanks to Nelia Mulenga, you have been my pillar of strength

and shared in my moments of gloom and glory and always provided me with the right words of

encouragement, i could not have asked for a better friend than you as you have always believed

in me. Special thanks also go to Honorable Exnobert Zulu (PRM), Mr. Switz Mweemba

(Legal Aid Counsel) for the input and Mr. Kims Banda (Counsel), for showing me that hard

work and dedication pays; you have inspired me in more ways than one.

And to my colleagues, Gladwell Habene, Noah Mwamba, Peter Chilufya, Naomi Kalunga,

James Zulu, Njavwa Sinkamba, Mutinta Hataala, Micheal Ngala and Roonie Kaonga for all

the encouragement during my study at the University. Guys, you made school life easier

whenever we shared data and jokes, i am forever indebted to you all.

I thank all those who may not have been mentioned who helped me in one way or another.

Lastly, but not the least, i thank my Almighty God who has always been with me in both good

and bad times. I love you my Lord and i believe that this is a work of your hand.

(ii)

TABLE OF CASES

Abel Banda v. The People (1986) ZR 105 (SC)

Attorney-General v. Musonda Samuel Mofya (1995) S.J. S.C

Banda v. The People (1990) ZR (SC)

Charles Lukolongo and others v. The People (1986) ZR 115 (SC)

Chimba v. The Attorney –General (1972) ZR 165

Chibwe v. The People (1972) ZR 239

Chibozu and Anor v. The People (1981) ZR 2

Edward Kunda v. The People (1971) ZR 99

Kabwika and others v. The People (1974) ZR 78

Liswaniso v. The People (1976) ZR 277 (SC)

Mandavu v. R (1962) R&N 298

Major Issac Masonga v. The People (2009) SCZ No. 24

Mark Maulla and Asukile Mwapuki v. The People (1980) ZR 119 (SC)

Miranda v. Arizona (1920) 384 U.S. 436

Mutambo v. The People (1905) ZR 15

Muwowo v. The People (1965) ZR 91

Patrick Sakala v. The People (1980) ZR 205

R v. Sang (1979) 2 ALL ER 1222

Ruben Njobvu and Light Chimpanzi Banda v. The People (1978) ZR 372

Tapisha v. The People (1973) ZR 202

The People v. B (1980) ZR 219 (HC)

The People v. Chanda (1986) ZR 105

Woolmington v. The DPP (1935) AC 462

Zando v. R (1964) S.N.R. 102

(iii)

TABLE OF STATUTES

Constitution, Chapter 1 of the Laws of Zambia

Criminal Procedure Code, Chapter 88 of the Laws of Zambia

Penal Code, Chapter 87 of the Laws of Zambia

Police Act, Chapter 107 of the Laws of Zambia

Prevention of Torture of Persons Act, No. 13 of 2013

Protection and Prohibition of Torture Law, Act of 2012

(iv)

ABSTRACT The law of evidence determines how facts may and may not be proved1 before the courts of law.

Conversely, the law of evidence pays critical attention to what kind of evidence may be admitted

in a court of law and that which may be disregarded.

The rules of evidence which prohibit certain facts from being proved or admitted before the

courts of law are called “exclusionary rules2”. These rules play a very important part in the law

of evidence so much that it is sometimes said that the major portion of that law is devoted to the

determination of what is not evidence3. An example of such evidence would be a confession,

according to which an accused person makes a self incriminating declaration with respect to an

offence or any material information relevant to a particular case and the facts in issue.

A Confession is recognised as a means of proof, but only to the extent that it conforms to the

dictates of the rules of practice and procedure for its admissibility. The two major functions of

the law of evidence therefore are anchored on; proof (how facts may be proved), and the second

limb is concerned with admissibility (what facts may not be proved owing to exclusionary rules).

The courts being the trier of facts are generally left to decide on the questions of admissibility of

evidence brought before it, an element of adjudication usually referred to as judicial discretion4.

The determination of this will be based on either the practice or the procedure relevant to the

admissibility of such evidence brought before it as well as any statutory provisions and

legislation. The administration of justice in such case will rest on the adequacy or efficacy of the

practice and procedures in place to provide a resolute outcome with due consideration of all

ingredients of the evidence brought before it; including questions of the manner in which such

evidence was obtained. This calls for a careful balance to be struck between the competing

interest of ensuring that alleged perpetrators of crimes are punished and the need to ensure that

the accused is provided with a right to a fair trial on all fours as a constitutional requirement,

more so were the evidence tendered has a self incriminating propensity against the accused.

1 Cross,R., and Wilkins,N.(1964).Outline of the Law of Evidence, p. 1 2 Ibid 3 Ibid 4 This is the power of the court to take some step, grant a remedy or admit evidence or not as it thinks fit. Many rules of procedure and evidence are in discretionary form or prove some element of discretion.

(v)

LIST OF ACRONYMS

UDHR Universal Declaration of Human Rights

UNCAT United Nations Convention against Torture and other Cruel, Inhuman

or Degrading Treatment or Punishment

ICCPR International Covenant on Civil and Political Rights

PPTA Protection and Prohibition of Torture Law Act

PTPA Prevention of Torture of Persons Act

PPCA Police Public Complaints Authority

DPP Director of Public Prosecutions

NHRI National Human Rights Institution

(vi)

TABLE OF CONTENTS Dedications:……………………………………………………………………………(i)

Acknowledgments:…………………………………………………………………….(ii)

Table of Cases:………………………………………………………………………...(iii)

Table of Statutes :……………………………………………………………………...(iv)

Abstract:………………………………………………………………………………..(v)

List of Acronyms:……………………………………………………………………...(vi)

Table of Contents:……………………………………………………………………..(vii)

CHAPTER ONE: AN INTRODUCTION TO CONFESSIONS

1.0 Introduction:…………….………………………………………………….……...(1)

1.1 Statement of the Problem:………………….……………………………………...(3)

1.2 Scope of Study:……………………………………………….……………..…….(3)

1.3 Significance of Research:………………………………………….…………...….(4)

1.4 Research Questions:…………………………………..……………………………(5)

1.5 Objectives of the Research:…………………………...…………………………...(5)

1.6 Methodology:……………………………………………………………………...(6)

1.7 Literature Review:………………………………………………………………....(6)

1.8 Research Design:…………………………………………………………………..(7)

(vii)

CHAPTER TWO : HISTORY OF CONFESSIONS AND THE BURDEN OF

PROOF

2.0 Introduction:……………....………………………………………………………..(10)

2.1 History of Confessions:…………………………………………………………….(10)

2.2 Arguments in favour of Confessions:…………………………..………..…..….....(12)

2.3 Arguments against the use of Confessions:……………………………..….…..….(14)

2.4 The Burden of Proof in the Admissibility of Confessions:……………………….. (16)

2.5 Conclusion:.............................................................................................................. (21)

CHAPTER THREE: COURTS ADMISSIBILITY OF CONFESSIONS

PRACTICE AND PROCEDUE

3.0 Introduction:….…………………………………………………………….….......(22)

3.1 Voluntariness of Confessions:……………………………………………….….....(23)

3.2 Trial Within a Trial Procedure:………………………………….…………….......(24)

3.3 The Efficacy of the Judges Rules:…………………………………………..…......(25)

3.4 Warn and Caution:………………………………….………………………….......(26)

3.5 Judicial Discretion in the Admissibility of Confessions……………………..…....(28)

3.6 Use and Abuse of Confessions vis-à-vis illegally obtained Evidence………...…...(33)

3.7 Conclusion:……………………………………………………..…………..….......(35)

(viii)

CHAPTER FOUR: INADEQUECES OF THE ZAMBIAN LEGAL

FRAMEWORK ON TORTURE

4.0 Introduction:……………………………………………………………….…....…(37)

4.1 The Legal Framework on the Prohibition of Torture:……………………...…..….(38)

4. 2 Zambia’s Adherence to International Standards of Torture:…..……………….....(39)

4.3 Republic of Uganda :................................................................................................(44)

4. 4 Republic of South-Africa:……...........................................................................…(46)

4.5 Legislative Standards of the Police...........................................................................(47)

4. 6 Conclusion:……......................................................................................................(49)

CHAPTER FIVE: RECOMMENDATIONS AND CONCLUSION

5.0 Introduction:………………………………………………………………………..(50)

5.1 Revision of the Law on Illegally obtained Evidence:……………………...…........(50)

5.2 Judges Rules to be Made Rules of Law:……………...…………………….......….(52)

5.3 Surveillance of Police Interrogation Rooms:………………………...………..........(53)

5.4 Restructuring the Police Public Complaints Authority:……………….………...…(53)

5.5 Revision of the Human Rights Commission Act:……………………...….…….....(55)

5.4 Criminalisation of Torture:………………………………………………………....(56)

5.5 Conclusion:……………………...…………………………………………...……..(57)

(viiii)

CHAPTER ONE

AN INTRODUCTION TO CONFESSIONS

1.0 Introduction

Confessions are a major form of evidence relied on before the courts of law in the criminal

justice system and the law of evidence in general. The procedure governing the admissibility of

confessions in the law of evidence is one that has been questioned by various writers on the score

of the potential danger of giving false evidence on account that confessions are usually viewed

and have been proved to be a product of coercion, intimidation or other physical or mental pain5.

The questions regarding the credibility of confessions usually stem from the general environment

under which such confessions are made being away from the public view and the conventional

intimidating suspect and police encounter during interrogations. It is because of this element that

led to the change of the “police force” into the now “police service”6, in an effort to eliminate the

old military policing system as people associated the police as being the common enemy as

opposed to protectors of the citizenry.

During the process of trying to ascertain a particular crime, police officers may handle an

accused person in such a way that the accused ends up giving vital information to the police.

This information can be given to the police by the suspect admitting or confessing the offence. It

5 Hatchard,J, and Ndulo,M.(1991).The Law of Evidence: Cases and Materials, p.273 6 Masiye,C.J.(2005).The Zambia Police Service: A legal Perspective. Directed research, Unza, p.18-19

1

is also during this process that evidence obtained in violation of the constitutional rights of the

due process of the law usually ends up being rejected by the courts of law.

In modern day judicial practice and with specific reference to confessions, the courts play a

pivotal role in ensuring that an accused person is granted a fair trial in all respect and on the

evidence before it, an aspect that is centered on the weight to be attached to evidence brought

before the court of law. Section 5(1) of the Evidence Act7, provides;

“In estimating the weight, if any, to be attached to a statement admissible as evidence

by virtue of this Act, regard shall be had to all the circumstances from which any

inference can reasonably be drawn as to the accuracy or otherwise of the statement,

and in particular to the question whether or not the person who supplied the

information contained or recorded in the statement did so contemporaneously with the

occurrence or existence of the facts stated, and to the question whether or not that

person, or any person concerned with making or keeping the record containing the

statement, had any incentive to conceal or misrepresent the facts”.

The question of the admissibility of evidence becomes even more important when the form of

evidence adduced by the prosecution is that of a confession. On account that most confessions

are made away from the courts view, it is imperative that a radical judicial system of practice and

procedure of admitting such evidence exists both legally and in reality. Notwithstanding a clear

procedure being existent in Zambia, case law indicates that the question of admissibility of

confessions is not always an easy undertaking for the trier of facts to determine and has

invariably been challenged in most instances by way of appeal on the premise of procedural

impropriety and breach of due process of the law inter alia.

7 Chapter 43 of the Laws of Zambia

2

1.1 STATEMENT OF THE PROBLEM

Notwithstanding clear guidelines on the manner in which interrogations should be conducted by

law enforcement agencies and the procedure to be followed by the courts in the event that

questions of admissibility of confessions as evidence arise, the nature, practice and procedure of

the existent rules have proved problematic for both the law enforcement agencies and in some

instances the courts. The lack of strict adherence to the rules governing confessions poses a great

risk on the accused right to the protection of the law and a fair trial. This discrepancy largely

follows from the lack of effective complainant’s procedures, efficient institutions with enough

enforcement powers to ensure the protection of the accused rights in violation of such procedures

even before the accused case sees the light of day in court. While this may be brought to light

before the courts of law, the decision to inquire into the merits of any such complainant largely

remains to the good will of the trier of the facts in issue as a matter of discretion. However, it is

the duty of the author of this research paper to attempt to bring to light the answers of what may

be done to improve or add efficacy to the current practice and procedures governing the law of

evidence with respect to confessions and to the criminal justice system as a whole.

1.2 SCOPE OF THE STUDY

The research paper intends to provide an examination and evaluation of the current practice and

procedure regarding the admissibility of confessions in the law of evidence while bringing to

light the various discrepancies that exist in the current system which may be subject to abuse by

law enforcement agencies and the courts and may compromise the accused right to a fair trial.

The paper further intends to provide remedial recommendations to the current legal system

3

regarding the admissibility of confessions and bring to light institutional interventions that may

help provide solutions to the abuse of or use of confessions as well as prosecution of such

enforcement officers found to be violating laid down procedures vis-a-vis the production of

confessions as evidence before the courts of law.

1.3 SIGNIFICANCE OF RESEARCH

The right to a fair trial or most often referred to as due process is a critical ingredient in the

criminal justice system8, the manner in which an accused person is investigated, indicted and

prosecuted lies at the centre of the evidence obtained against him for the commission of any

particular offence in question. The importance of this research is to provide an evaluative review

of the current practice and procedure regarding the admissibility of confessions and the danger of

false convictions on account of the abuse that may be perpetrated by law enforcement agencies

against a suspect in trying to obtain evidence and were the only source of such evidence is a

confession of the accused person himself. Further, the research intends to highlight whether the

current legal procedure before the courts regarding the admissibility of confessions is efficient

and adequate to guarantee a fair balance in the administration of justice and guaranteeing the

accused right to the protection of the law with specific reference to occurrences where

intimidation or torture may be the form of method used to obtain such evidence produced before

the courts of law and what may be done to guard against such risks which are usually

problematic to conclusively determine with utmost certainty.

8 Article 18(1) of the Constitution, Chapter 1 of the Laws of Zambia

4

1.4 RESEARCH QUESTIONS

These are as follows:

(1) Does the current practice and procedure as well as the Zambian legislation provide

efficacy and safeguards with respect to the admissibility of confessions as evidence with

its propensity of false confessions regarding the manner in which confessions may be

obtained by law enforcement agencies such as the police?

(2) Has Zambia fully adhered to the International standards of the Convention Against the

Elimination of All Forms of Torture and Inhuman and Degrading Treatment.(CAT)

(3) Would the criminalisation of torture9 and the review of the certain remedial institutions

provide a better and more efficient counter measure against the inevitable abuse of

confessions as a form of evidence?

1.5 OBJECTIVES

Specifically, the objectives of the study are;

To give an evaluative scope of the current law regarding the admissibility of confessions

In Zambia.

To identify and examine the practice, procedure and legal framework governing the

admissibility of confessions with specific reference to cases were such evidence is one

obtained by force or torture and whether the current legal system provides sufficient

safeguards against the vice.

To provide recommendations that would improve the current system and curb abuses

against the use of confessions improperly obtained.

9 Times of Zambia, 2nd March 2015

5

1.6 METHODOLOGY

The research will be dependent on both primary and secondary sources. The primary sources to

be used will include interviews with personnel from the legal profession such as legal

practitioners and magistrates and other personnel relevant to the scope of the research. The

secondary sources of information to be referred to will consist of books, dissertations, articles as

well as statutes and relevant law reports forming the subject matter of the research as methods of

data collection.

1.7 LITERATURE REVIEW

John Hatchard and Professor Muna Ndulo in their book, the Law of Evidence in Zambia10 note

that the question of confessions is one that has exercised the minds of many lawyers,

practitioners and judges. The issue of confessions is tied to the accused’s right against self

incrimination, they further note that the foundation underlying the privilege is the respect a

government must accord to the dignity and integrity of its citizens and the fact that confessions

are often unreliable and it is thus desirable that a government seeking to punish an individual

produce the evidence against him by its own independent labours, rather than from the accused

own mouth11.

Another scholar, Ramsey Clark points out that the history of confessions is full of torture,

treachery and lies. He cites the biblical times of Jesus prosecution during which he was subjected

to various kinds of torture. Three books of the New Testament relate the story of Jesus trial.

Charged with a capital offence, the accused was asked by prosecutor Pontius Pilate, “Art thou

the king of the Jews?” But the only answer Jesus would give was “Thou sayest it.” It is clear

10 Supra note 5 11 Ibid

6

from the facts surrounding the events of the trial of Jesus which were characterised by

intimidation, torture that his right to a fair trial and that any evidence obtained from him during

the time of his prosecution was adversely impugned.

Further, Hatchard and Ndulo note that insistence on confessions arises from inability to know a

man’s heart and mind12. While in modern law enforcement, the effort to obtain confessions

usually arises from a genuine desire to solve a crime, the use of confessions necessarily implies

that other evidence, equal or better, is not available and that the only reliable piece of evidence in

such event would be an accused own confession. Beyond the desire to solve crime is the not

unknown motive of assuring the public of police effectiveness, whether the person charged is

guilty or not. Hatchard and Ndulo further highlight that it can be argued that if violations of the

rule against involuntary confessions were tolerated all the careful safeguards erected around the

giving of testimony, whether by an accused or any other witness, would become empty

formalities; the most compelling evidence of guilt, a confession, would have already been

obtained at the unsupervised pleasure of the police13.

1.8 RESEARCH DESIGN

The organisation of the research comprises of four chapters which are each dedicated at

addressing various issues to be raised within the context of the research topic.

CHAPTER ONE

The first chapter of the research comprises of the general introduction to confessions, it gives the

outlook and nexus between the law of evidence and confessions as a form of evidence and

12 Supra note 5, p.272 13 Ibid

7

further highlights the grey areas that have been raised against the use of confessions. The first

chapter’s composition includes the overall outline of the entire research paper, which include; the

statement of the problem, the scope of the study, the significance of the research, the research

questions, the objectives of the research, research methodology, the literature review and the

research design.

CHAPTER TWO

The second chapter is dedicated to looking at the history and overview of confessions as a form

of evidence. It will centre on analysing the definition of confessions and will further explore the

arguments advanced for and against the use of confessions in the law of evidence. An analysis of

the burden of proof in criminal offences, persons to whom confessions may be made and the

conduct that is likely to impede a fair trial with respect to the use of confessions as a form of

evidence.

CHAPTER THREE

Chapter three will look at the admissibility of confessions in Zambian legal practice which will

centre on the courts procedure of the trial within a trial and its discretionary powers and the

efficacy of the judges rules. It will further explore the use and abuse of confession with respect to

illegally obtained evidence.

CHAPTER FOUR

The fourth chapter will look at the prohibition of torture, legislative standards of the police as

well as the inadequacies of the Zambian legal framework on Torture. It will further explore the

dangers of false confessions arising from the police and suspect encounter.

8

CHAPTER FIVE

Lastly chapter five will look at the areas of legal reform and give recommendations on the ways

of mitigating the abuse of confessions which include statutory reformation as well as the reform

of remedial institutions to counter or curb the negative use of confessions as a form of evidence.

The chapter will explore the criminalisation of torture, the reform of rules of police procedures in

questioning suspects, the amendment of the law creating institutions such as the Human Rights

Commission to add more efficacies and increase access to justice and the effective

operationalisation of the Police Public Complaints Authority, improving the interrogative

methods of the police inter alia.

9

CHAPTER TWO

HISTORY OF CONFESSIONS AND THE BURDEN OF PROOF

2.0 Introduction

The subject of confessions has its developments from ancient times long before courts were

established or legal systems existed to guard against the abuse of confessions or provide practical

guidelines on their admissibility in the course of determining various matters that ensued within

the communities and society at large. The chapter discuses the evolution and transition of

confessions and their admissibility as well as the burden of proof with respect to confessions.

The chapter further outlines the arguments for and against the use of confessions on the law of

evidence.

2.1 HISTORY OF CONFESSIONS

There exists no universally accepted definition of a confession; however, various authors and

scholars have devised working definitions that have gained both academic and legal acceptance

on what amounts to a confession. Phil Huxley defines a confession as;

“an out of court (“extra judicial”) statement either oral or written which is adduced as

evidence of its contents and is, either in whole or in part, adverse to the interests of the

person who made it14.”

14 Huxley,P.(2010). Evidence The Fundamentals.(2nd e.d), p. 168

10

In some instances, a distinction is made between inculpatory and exculpatory forms of

confessions. The former refers to confession statements that are self-incriminating in nature

while the latter refers to statements that have the effect of exonerating the accused. However, the

most prevalent forms of confessions that have seen the light of day in the courts of law are self

incriminating confessions that have the propensity disclosing an offence committed by an

accused or some fact that goes to show that they had knowledge of an offence committed

relevant to the facts in issue15. At common law, an adverse admission relevant to the issue of

guilt in a criminal case is known as a confession16.

A historical genesis and overview of the use of confessions on trials is illustrated by Wigmore17

who noted four phases in the history of the laws use of confessions. In the earliest stage which

formed most of the sixteenth century, there was no restriction on the reception or admissibility of

confessions. This was largely due to the fact that there existed no concise legal system and

framework on the use of confessions at the time. The lack of formulated mechanisms as a

restraint or limitation on the use of confessions and the manner in which they were obtained

meant that even confessions obtained by way of torture were readily admitted as forming part of

evidence and consequently relied upon to convict persons.

In the second phase, which comprised the second half of the 1700’s, Wigmore notes that there

was a general departure from the way confessions were perceived in the sixteenth century. There

grew a general disregard on the use of confessions on account of their propensity of being

15 Heydon,J.D.(1984).Evidence: Cases and Materials, p.45 16 Murphy,P.(2000).Murphy on Evidence.(2nd e.d), p. 38 17 Wigmore,J.(1981).Evidence in Trials at common Law, p. 382

11

untrustworthy with specific bias to confessions obtained away from the public view or in hostile

circumstances18.

In the third phase, which comprised most of the 18th century, a principle excluding some

confessions to guard against the use of false confessions was developed as a best practice to

ensure fairness and efficacy in the criminal justice system and the determination of evidence

obtained by way of a confession19. Convictions were then rejected where it was evident that a

confession made was one obtained through procedural impropriety and posed a question on their

credibility for the attainment of justice20.

The exclusion principle on confessions consequently resulted in the rule against the admission of

confession and led to the last phase that saw the exclusionary rules being endowed and

formulated in statutes as well as constitutional mechanisms of various jurisdictions21. The

American Constitution for instance formulated a provision that made it a legal requirement that a

person be informed of their rights before questioning them and getting a confession out of them.

2.2 ARGUMENTS IN FAVOUR OF CONFESSIONS

Proponents of confessions have advanced arguments in favour of the use of confessions; they

argue that confessions are necessary to curb crime in society. Abolishing the use of confessions

18 Ibid 19 Ibid 20 Ibid, p. 38 21 Ibid, p.382

12

would inadvertently lead to an upswing on the prevalence of crimes22. The proponents further

argue that confessions stand as the best form of evidence when they are well procured and are

generally a useful way of proving facts in issue.

The other argument advanced in favour of confessions is that through questioning a suspected

person, better evidence is obtained in the process of making the confession that may have a

corroborative effect to the facts is issue. The law in Zambia seems to provide legal justification

on this account on the premise that illegally obtained evidence is admissible to the extent that it

is factual and relevant to facts in issue.

In Liswaniso v. The People23, the applicant an inspector of the police was convicted of official

corruption, the allegation being that he corruptly received a sum of k80 in cash as consideration

for the release of an impounded motor car belonging to the complainant. The evidence on which

the applicant was convicted was obtained by means of an illegal search. It was held that apart

from the rule relating to the admissibility of involuntary confessions, evidence illegally obtained,

for instance as a result of an illegal search and seizure or as a result of an inadmissible confession

is, if relevant, admissible, on the ground that such evidence is ‘fact’ regardless of whether or not

it violates a provision of the constitution (or some other law).

Further, proponents of the use of confessions have argued that proscribing the use of confessions

would increase the crime wave. After Miranda v. Arizona24, a case which proscribed statements

obtained by the police against an accused in breach of procedure as being at variance with

22 Supra note 5 23 (1976) ZR 277 (SC) 24 (1920) 384 U.S. 436

13

constitutional requirements, most Americans among them Richard Nixon the 37th President of

the United States of America accused the United States Supreme Court of emptying prisons of

criminals, they claimed law enforcement would never again be effective, as confessions were

regarded as an instrument of law enforcement that has for long and quite reasonably been

thought worth the price paid for it25. The dissenting opinion in the Miranda Case (supra), put

the point this way:

“We do know that some crimes cannot be solved without confessions, that ample expert

testimony attests to their importance in crime control...interrogations is no doubt often

inconvenient and unpleasant for the suspect...Society has always paid a stiff price for law

and order, and peaceful interrogations is not one of the dark moments of the law”.

Indeed case law has in various respects placed reliance on confessions where such confessions

are in the eyes of the court of a legitimate nature. The courts have gone ahead to convict solely

on the confessions tendered as the only form of evidence. A question however, may arise as to

the extent courts have gone in establishing and ascertaining the manner and circumstances in

which such confessions was made.

2.3 ARGUMENTS AGAINST THE USE OF CONFESSIONS

Contrary to the school of thought that advances arguments in favour of the use of confessions,

certain scholars have discredited the use of confessions as a form of evidence and have censured

25 Supra note 5, p. 273

14

and critically cautioned on the manner in which confessions should be admitted as evidence on

account of the their propensity to be false26.

Ramsey Clarke cites a case on the facts that involved two girls who were brutally murdered and

dismembered. The accused having made a full confession pleaded guilty to the crime and was

sentenced to life imprisonment, however, less than a year the man was set free because further

evidence indicated that it was physically impossible for him to have been at the scene of the

crime. Another man who had been arrested on another charge was shown to have been the

murderer27.

Another argument advanced against the use of confessions lies in the historical genesis of

confessions being associated with intimidation, violence and torture leading a person to make

false self incriminating statements. If forced or coerced, the reliability of a confession is fatally

compromised and the integrity of the system of administration of justice itself made to suffer, as

such an act would be at variance with an accused’s right to a fair trial as most confessions are

obtained away from the view of the court.

Article 18(1), (2) (a) of the Constitution28, provides that;

“If any person is charged with a criminal offence, then, unless the charge is

withdrawn, the case shall be afforded a fair hearing within a reasonable time by an

independent and impartial court established by law.”

(2) Every person who is charged with a criminal offence-

(a) Shall be presumed innocent until he is proved or has pleaded guilty;

26 Clarke,R.(1982). Crime in America, p. 392 27 Ibid 28 Chapter 1 of the Laws of Zambia

15

In light of the above provisions critics of the use of confessions advance that confessions should

be condemned from the point of view that onerous techniques of eliciting confessions inevitably

leads to unfairness and abuse of an accused rights to the due process of the law. It has been

remarked that the use of confessions encourages the police to carry out shoddy investigations.

As Charles J pointed out in Zondo v. R29;

“The basis upon which evidence of an incriminating statement is excluded in the absence

of proof of the condition of admissibility is not that the law presumes the statement to be

untrue in the absence of such proof, but because of the danger which induced confessions

or admissions present to the innocent and the due administration of justice30”.

2.4 THE BURDEN OF PROOF IN THE ADMISSIBILITY OF CONFESSIONS

The law governing the admissibility of confessions in criminal cases is formulated on the rules

and dictates of criminal law with respect to the burden and standard of proof procedures. In the

admission of evidence, criminal law gives the accused the benefit of doubt31. A trial court may

not convict an accused unless it is shown that the accused was guilty beyond all reasonable

doubt, a principle established in the seminal case of Woolmington v. DPP32.

There are two kinds of burden of proof namely; the evidential burden of proof and the legal

burden of proof. The accused burden is called the ‘evidential burden’ which proof is on the

balance of probabilities33.

29 (1964) S.N.R. 102 30 Supra note 25 31 Kulusika,S.E.(2006).Texts, Cases and Materials on Criminal Law in Zambia, p. 31 32 (1935) AC 462 33 Supra note 31

16

The position regarding the proof required for the admissibly of confessions in evidence is no

different and falls squarely on the prosecution that the confession was obtained in a manner that

does not prejudice the rights and interest of the accused. Hence, to ensure that this is achieved,

there is need to ensure that the whole of a confession is tendered in evidence, including parts

favourable to the accused. It ultimately remains within the discretion of the courts to consider

such parts as may be adjudged34. When the prosecution relies upon a confession which is

properly admitted as a whole, the accused may rely on such self-serving portions of it as there

may be although not carrying as much weight as the exculpatory parts. Where the whole or

portions of a confession tendered by the prosecution is disputed or objected to on account of

questions as to its legitimacy when it was obtained by the prosecution from the accused, the

burden of proof is on the prosecution to prove to the courts that the confession was obtained

voluntarily, all the accused has to do at his trial is to raise the question of voluntariness or

legitimacy of the confession.

In the People v. B35, the accused raised allegations of torture and duress when making a

statement prior to his interrogation by the police; this was not challenged by the prosecution

throughout the trial within a trial. The accused disclosed that he had been subjected to solitary

confinement, frequent assaults and violence to his person and induced into making a statement

by torture, threats and promises. The accused alleged that he was requested to make a confession

by the Assistant Commissioner of Police at an interrogation centre, in the company of men

dressed in army uniforms, two of whom were armed. He was jostled for five to ten minutes and

promised to be removed from solitary confinement if he cooperated and ended up making the

34 Silungwe, A,N.(1977).Confessions in Criminal Cases in Zambia. Directed Research, p. 110 35 (1980) ZR 219 (HC)

17

confession to satisfy his interrogators. The learned judge found that the allegations raised by the

accused were not rebutted by the prosecution and consequently ruled in favour of the accused.

It was held that it is a fundamental principle in criminal law that when an accused raises an

objection to the introduction of a confession into evidence, alleging that it was not made freely

and voluntary on account of assaults, threats or inducements, the burden of proving that a

confession is voluntary is on the prosecution and at no time does it shift to the accused.

The practice of having the prosecution prove the voluntariness of the confession carries with it a

danger on account that the accused having had prior contact and interaction with the

interrogators in the absence of the courts view would have been induced and coerced into

making a false confession, and threatened not to disclose the actual events leading to the manner

in which the confession was obtained. The threats may have been directed to him or any such

person known to the accused forcing him to make a confession as illustrated in the preceding

case. Not all confessions forcibly obtained have the light of day in court owing to the

consequences and fears that an accused may be entangled in preventing their disclosure before

the courts of law, more so where such a person is not provided with legal representation before

the courts of law.

It is a peculiar principle of evidence law that any doubt cast on the prosecution evidence must be

exercised in favour of the accused. However, in some cases, the courts have gone on to convict

an accused even where the confession so obtained was objected to by the accused as not having

been offered voluntary, it is under such cases where the confession in question was one not

18

reduced in writing that poses a great danger on the courts arriving at a wrong decision of

admitting a confession that may have been obtained in “mala fides”.

In light of the arguments advanced for and against the use of confessions and in line with the

burden of proof in proving the authenticity of a confession, this poses the serious question as to

whether confessions are the best form of evidence for which a determination should be drawn by

the courts of law. In addressing this question, the authors view is rendered together with views

collected from interviews.

In an interview conducted with Principal Resident Magistrate, Exnobert Zulu, on the question

as to whether confessions were a reliable form of evidence, magistrate Zulu stated that

depending on its accuracy, and the surrounding circumstances, confessions may be a reliable

form of evidence. He further noted that not all confessions are involuntary but that it was

desirable to ascertain the truthfulness of a given confession36.

The author partly agrees with the learned Magistrate’s opinion to the extent that circumstances

under which a confession is made has a huge bearing on its legitimacy and reliability, however,

the author contends that the proper approach to be taken that should ultimately form the pillar of

consideration in the admissibility of a confession is not so much to do with ascertaining the

truthfulness of the confession but that the strict rule of consideration should be whether or not

such a confession is true or false and was obtained in a manner that can be said to have been free

and voluntary.

36 Principal Resident Magistrate Exnobert Zulu, interview conducted by author , 7th June 2015

19

Thus, in the case of Kabwika and Others v. The People37, at p. 82, Barton, D.C.J (as he then

was) observed;

“the probabilities are that the confessions of the second and third appellants were the

truth. But, the issue is not truth but voluntariness. Our law is clear, and the cases are

legion that even though the court may be satisfied that what an accused person has said

in a statement to the police is in fact true, that statement is inadmissible as evidence

unless the prosecution prove that it was freely and voluntary made”.

It is the author’s opinion that admission of confessions tendered as evidence should be sparingly

countenanced and if so admitted in evidence, this must be done with extreme caution owing to

the danger and propensity of their unreliability and potential for miscarriage of justice which

would inevitably be at variance with the accused right to the protection of the law. It is on this

account that confessions have been referred to as tainted evidence38. Professor Wigmore39 put it

in the following context;

“the real objection is that any system of administration which permits the prosecution to

trust habitually to compulsory self-disclosure as a source of proof must itself suffer

morally thereby. The inclination develops to rely morally upon such evidence, and to be

satisfied with an incomplete investigation of the other sources ultimately the innocent are

jeopardised by the encroachment of a bad system”.

37 (1974) ZR 78 38 Ndulo,M.(1973).Confessions-Tainted Evidence?. Zambia Law Journal 101 39 Evidence, Vol.4, sec. 2250

20

2.5 CONCLUSION

The chapter having given a definition of a confession has further expounded the evolutionary and

transitional nature that confessions have taken as a form of evidence with more safeguards being

implored as condition precedents to their admissibility owing to the questions of their

authenticity being self incriminating statements and usually characterised with circumstances

that suggest the impairment of an accused person to exercise his free will. While certain

proponents advocate against the use of confessions, other proponents have advanced arguments

justifying confessions as the best form of evidence if properly procured. The burden of proof in

the admissibility of confessions always lies on the prosecution who must prove to the courts that

such confession tendered as evidence was obtained without prejudice to the suspect or accused.

The pertinent question therefore centre’s on the manner of procuring confessions of which the

chapters that follow will endeavor to unlock.

21

CHAPTER THREE

COURTS ADMISSIBILTY OF CONFESSIONS: PRACTICE AND

PROCEDURE

3.0 Introduction

Whenever the question of a confessions authenticity becomes the subject of the courts

determination in the course of proceedings, the court is obliged to stay the proceedings of the

main trial and give precedence to the determination of the questions raised which go to the root

of the question of voluntariness vis-à-vis the manner in which such confession may have been

obtained. Courts in Zambia like other common law jurisdictions prescribe certain procedures as a

matter of law and practice to determine such questions to erase any risk of a miscarriage of

justice. However, a perusal of certain cases that have been the subject of appeal before the courts

of law indicate that the procedure is one that is sometimes misapplied by trial courts as well as

law enforcement agencies in the course of interrogations notwithstanding clear guidelines that

must always be addressed in determining the admissibility of confessions. The chapter examines

practice and procedure followed by the Zambian courts with respect to the admissibility of

confessions.

22

3.1 VOLUNTARINESS OF CONFESSIONS

In order for a confession to be admissible as evidence, it must be shown and ascertained that the

confession was made freely and voluntarily by the accused person. In Muwowo v. The People40,

Blagden CJ, defined a voluntary confession as follows;

“A voluntary confession is one made in the exercise of free choice to speak or to remain

silent; it cannot be the product of violence, intimidation, persistent importunity or

sustained or undue insistence or pressure or any other method by the authorities that

overbears the will of the accused to remain silent”.

From the preceding definition it can be construed with utmost certainty that one of the principles

for admissibility of a confession is premised on the fact that it was ‘prima facie’ voluntarily

made by an accused and that this was done after a warn and caution from which the accused

accordingly exercised his free will41 to make the confession or not.

The accused person’s free will and the preceding confession made or obtained out of him must

always be critically construed in light of the circumstances that the accused was exposed to in the

course of obtaining such confession. Any prejudicial aspect however slight may have a physical

or psychological bearing on the accused admitting or making a false confession rendering it

nugatory. This was noted in The People v. Chanda42, where it was held that statements were

obtained from the first accused after what the court referred to as ‘improper inducement’. The

interrogation officer admitted that he kept all the suspects in the inquiries room overnight on a

hard bench, and later subjected to them to prolonged questioning with further allegations of

assault being made by the accused. It was held that were it is shown that an accused person at

40 (1965) ZR 91 41 Supra note 15, p.175 42 (1986) ZR 105

23

first denied a crime and then after a considerable period in police custody suddenly comes

forward with a confession, those circumstances in themselves raises a ‘prima facie’ reasonable

suspicion of involuntariness which requires cogent evidence to be excluded.

3.2 TRIAL WITHIN A TRIAL PROCEDURE

As a condition precedent to the admissibility of a confession, whenever a question is raised as to

the voluntariness of a confession by an accused person, the court is obliged to commence a trial

within a trial to determine the voluntariness of the confession. The courts have in some instances

failed to address their minds to the strict adherence of this procedure.

In Edward Kunda v. The People43, it was held that the question of voluntariness of a

confession applies to both written and verbal confessions. Notwithstanding the law being settled

with respect to the admissibility of confessions in Zambia, the trial court in the preceding case

failed to follow the guidance that has consistently been laid down by the Supreme Court. The

Supreme Court on appeal noted that the words made by the accused were in fact a confession

and before admitting them as evidence the learned magistrate should have satisfied himself on

the question of voluntariness. The magistrate failed to carry out a trial within a trial to establish

the voluntariness of the statement.

Where a confession is about to be admitted as evidence before the courts of law, the onus falls

on the judge or magistrate seized with conduct of the matter to ensure that the accused person

clearly consents to its admittance, more so where the accused person is not represented by

counsel. The rationale behind this is that the judge or magistrate has the duty to ensure that all

43 (1971) ZR 99

24

matters raised and forming the ‘factum probanda’ are addressed in order to arrive at a reasonable

and just determination with reference to all circumstances of a particular case.

In Chibozu and another v. The People44, it was held that the judge was supposed to have asked

the appellants weather they had objections to the confessions being admitted as evidence, and if

so, a trial within a trial be instituted to determine the voluntariness of their admissions.

Guidance on the trial within a trial procedure was aptly stated in Tapisha v. The People45, where

the applicant was convicted of theft, part of the prosecution’s evidence was based on a

confession that was extracted by police officers to which the accused objected to its admissibility

on account that it was obtained from him as a result of beatings, a trial within a trial was then

commenced. The court stated that;

“Where any question arises as to the admissibility of a confession or any part of it, as a

matter of law, as a condition precedent to the admissibility of the statement the issue must

be decided as a preliminary one by means of a trial within a trial. The failure by the

magistrate to conduct a trial within a trial when such inquiry should have been

conducted is an irregularity, but curable if there is no prejudice to the accused. Where

prejudice has resulted, or may have resulted, the appellant court must ignore the

confessions”.

3.3 THE EFFICACY OF THE JUDGES RULES

The judge’s rules are a set of practice rules that have their origins from the English common law

regime. Prior to their establishment, the police had not followed any particular procedure when

44 (1981) ZR 23 45 (1973) ZR 202

25

interviewing suspects. On this premise, evidence given to the police was usually rejected in the

courts of law because it was considered that force or some sort of pressure had been used to

obtain a statement from the accused such as torture46. The establishment of the judge’s rules was

thus aimed at providing guidance to police officers or law enforcement agencies as to the proper

way of dealing with suspects and accused persons. On the one hand, the rules enhance the

protection of an accused person’s right against self incrimination47.

However, practice will question the extent to which the judge’s rules can actually be seen as

effectively protecting the accused rights and interest against the whims and caprices of the

investigative authorities being persons having influence over the accused at the time of such

interrogation. Further, the mere fact that the judges rules are rules of practice rather than rules of

law, pose a subtle and sometimes apparent risk of abuse to which the investigative authorities

have been seen to abuse by the failure to adhere to the rules.

3.4 WARN AND CAUTION

A fundamental preliminary requirement to the admissibility of confessions in the law of evidence

and practice requirement under the judge’s rules is that the accused person must be warned and

cautioned before making an incriminating statement or before being interrogated by the

investigative authority generally referred to as persons in authority. The courts have given

guidance as to who qualifies as a person in authority for the purposes of administering a warn

and caution statement, the rationale seems to focus on the modus operandi of such persons

46 Human Rights and Policing in Zambia: A Trainers Manual, p.82 47 Ibid

26

purporting to administer the warn and caution of which certain persons have been excluded as

having no ‘locus standi’ to administer and caution an accused person.

In Abel Banda v. The People48, the appellant was convicted of murder by administering a

pesticide in a local brew called kachasu. The Prosecution evidence included inter alia, an

interrogation conducted without administering a warn and caution by the village headman. It was

held inter alia, that a village headman is not a person in authority for purposes of administering a

warn and caution before interrogating a suspect since his normal duties did not pertain to

investigating crime.

Warn and caution statements are simply statements administered by an officer to a suspect,

stating the reasons for the officer’s intention to arrest or detain a suspect and also availing the

accused the right to remain silent and the consequences of not doing so49.

Article 14(3) (g) of the International Covenant on Civil and Political Rights to which Zambia

is a signatory further buttresses this requirement and provides that;

“In the determination of any criminal charge against him, any one shall be entitled to the

following minimum guarantees in full equality;

(g)Not to be compelled to testify against himself or to confess his guilt”.

The necessity of administering a warn and caution statement from an accused person before a

statement or confession can be rendered admissible before the courts of law was ably stated in

Major Issac Masonga v. The People50, where it was held inter alia that; it is a well established

principle at law that a suspect who has to be interviewed by a person in authority has to be

48 (1986) ZR 105 (SC) 49 Supra note 46, p.53 50 (2009) S.C.Z Judgment No.24 of 2009

27

warned and cautioned before he makes any statement which may be produced in court against

him. The rationale stems from the need to guarantee a fair trial, but also to ensure that even the

investigations are conducted in accordance with established procedures of a fair trial for all

suspects.

It must be noted that the failure on the part of the investigative authorities to administer a warn

and caution statement creates a rebuttable presumption of involuntariness on the part of any

confession or self incriminatory statement that may have been obtained from an accused in the

process of interrogations or investigations.

3.5 JUDICIAL DISCRETION IN THE ADMISSIBILITY OF CONFESSIONS

While voluntariness is the primary determinate inter alia, in the admissibility of confessions in

the law of evidence, the courts as adjudicators have the power in some instances to exclude a

confession adjudged to have been obtained voluntarily as per rules of admissibility. This

discretion stands as a proper safeguard to the protection of the rights of an accused standing trial

and especially where the confession is the subject of dispute before the court as to the manner in

which it was obtained, its overall operative effect on the accused and the propensity of it being

prejudicial to the accused.

It is not in dispute that the police and suspect encounter places a suspect in a weaker position

during interrogations or investigations that are conducted privately and away from judicial

scrutiny. It is for this reason that most confessions are disputed before the courts of law. The

power imbalances always raises suspicion of the authenticity of incriminating statements or

confessions tendered by an accused as he may well be forced or have been threatened into stating

28

that such confession recorded or obtained from him was voluntary when infact not. There have

been several cases on which the courts have excluded a confession made by an accused person

tendered in by the prosecution notwithstanding it having been made free and voluntarily. The

premise upon which the courts may use its discretion to exclude a confession is referred to as the

“unfairness rule51” where on the facts of the case its admittance would lead to substantial

injustice.

In Mandavu v. R52, the principle was reaffirmed as follows;

“Even though a court is satisfied that a statement was made voluntary, it nonetheless has

discretion to exclude such statement if it were obtained in a manner unfair to the

accused. In this context, the observance or non observance of the judge’s rules is a most

relevant factor”.

Notwithstanding this proper guidance which the court has been at pains to belabor, the proper

application of the courts discretion has not been a fairly swift exercise on the part of many judges

and magistrates which has in most cases led to many points of contention and appeals more

especially where such failure to exclude a confession was one obtained in breach of the judges

rules.

In Patrick Sakala v. The People53, it was noted by the Supreme Court on appeal that there was

in this case no reference made by the trial court to the exercise of its discretion and so, failure to

consider the matter of its discretion in connection with the statement made by the accused

51 Supra note 15, p. 175 52 (1962) R & N 298 at 304 53 (1980) ZR 205

29

persons constituted a serious misdirection, an error which compelled the court of appeal to rule

that the statements were wrongly admitted.

Further, on the point of the courts failure to properly address its mind to its discretionary power

of excluding confessions prejudicial to an accused person notwithstanding such confessions

having been obtained voluntarily and without duress, the court in Chibwe v. The People54,

stated that;

“It is unnecessary for us to consider whether on the record the learned trial judge should

have exercised his discretion and excluded the statement notwithstanding his finding that

it had been freely and voluntary made; it is clear that the learned trial judge should have

exercised his finding that it had been freely and voluntary made; it is clear that the

learned trial judge did not direct his mind to the question of the courts discretion and it

could well be that if it were necessary to decide this point, we would have to hold that his

failure constituted a fatal defect”.

In Banda v. The People55, during trial on a murder charge, a confession statement to the offence

was admitted in evidence against the appellant. There was a discrepancy between the police

officer who took down the statement and a civilian witness as to whether the required warn and

caution statement had actually been administered. In admitting the statement, the trial court had

relied heavily on a statement from the bar by the appellants counsel during the trial that his initial

instructions had been that the statement was free and voluntary notwithstanding the accused

raising allegations of assaults and inducements leading to his confession. On appeal, the court

held that the failure to administer the warn and caution statement created a rebuttable

54 (1972) ZR 239 55 (1990) ZR (SC)

30

presumption of involuntariness. It was further held that the statements should have been

excluded as the stance taken by the appellants at the trial had amounted to actual prejudice to the

appellant.

On appeal in, Charles Lukolongo and others v. The People56, it was held that the warn and

caution statement of the first appellant was wrongly admitted as the trial judge did not inquire

much into the allegations as to the police beatings of the accused and consequently, the

remainder of the appellants statements should equally have been excluded as the parties were

interviewed and interrogated contemporaneously. The court of appeal therefore ruled that all

statements of the four appellants were wrongly admitted.

It is noted that the fact that there are no hard and fast rules on the application of the courts

discretion in the admissibility of voluntary confessions, may be the cause that many cases

boarding on such points of law and fact end up being disputed on the point of proper application

of the discretion. However, the courts have endeavored to provide guidance on the correct

manner and procedure on which the question of the courts exercise of its judicial discretion to

exclude a confession arises and is exercised.

In Mutambo v. The People57, the ground of appeal was that the learned trial judge wrongly

failed to exercise his discretion by not excluding the confession. It was held that while a judge

has discretion, it should be used when it appears clearly that the evidence in itself by reason of

56 (1986) ZR 115 (SC) 57 (1965) ZR 15

31

the circumstances in which it was obtained has an unfair prejudicial tendency against the accused

out of all proportion to its probative value.

It should be noted that the proper exercise of the courts discretionary power to exclude the

admissibility of a confession is and should be ultimately premised on promoting and not

defeating the course of justice. The dicta in R v. Sang58, on the judge’s rules provides the

following guidelines namely;

A breach of the Judges Rules does not by itself confer upon the judge discretion

to reject a subsequent confession admissible in law.

The discretion does, however, arise if the breach has induced the accused to make

a confession which he would otherwise not have made, because the breach will be

improper if not unfair; and

If the breach is such that the confession which it induces is not voluntary, the

judge has no discretion, and must exclude the confession as inadmissible in law.

The summation of the necessary steps that a court should always follow with respect to the

admissibility of confessions in the law of evidence was outlined in Ruben Njobvu and Light

Chimphanzi Banda v. The People59 where the court stated that;

“For the avoidance of doubt, we wish to say that there are three important stages to be

observed in order for a confession to be admissible as evidence. First the court must

decide whether or not the accused statement was made free and voluntarily; if it so finds,

58 (1979) 2 ALL ER 1222 59 (1978) ZR 372

32

then it must next consider the second stage, namely the question of the exercise of its

discretion on the ground that strict admissibility of the statement would operate unfairly

against the accused, for instance, if there was an unfair or improper conduct on the part

of a person or persons in authority surrounding the making of the statement. Once the

courts discretion is exercised in favour of the accused, the statement is excluded forthwith

notwithstanding that it had been made freely and voluntarily. If it is admitted and some

further evidence is later adduced concerning which the court feels its discretion should

be exercised with regard to the already admitted statement, the court may then decide to

exclude such statement before judgment or in the judgment. The third stage is that the

court must decide what weight if any, is to be placed on the admitted statement’.

3.6 USE AND ABUSE OF CONFESSIONS VIS-À-VIS ILLEGALLY

OBTAINED EVIDENCE

The position in Zambia’s jurisprudence with respect to illegally obtained evidence is that it is

admissible in the courts of law as long as it is factual and relevant to the facts in issue. In

Liswaniso v. The People60, it was held that apart from the rule of law relating to the

admissibility of involuntary confessions, evidence illegally obtained, e.g. as a result of an illegal

search and seizure or as a result of an inadmissible confession is, if relevant, admissible on the

ground that such evidence is a fact regardless of whether or not it violates a provision of the

Constitution (or some other law).

60 Supra note 23

33

It has been noted that the position given by the courts on this subject matter impliedly granting

immunity to the police for the use of illegal means in conducting their investigations has

exacerbated the levels of impunity on the part of the investigation authorities which has to some

extent lead to the abuse of confessions aimed at making the accused or suspect assist the police

in the recovery of items or other related investigations. The rational being that while the

confession obtained in such a manner will not be admissible before the courts of law, any items

so recovered as a result of such confession will however, be admitted in evidence. This position

impliedly allows the investigation authorities to be beneficiaries of an illegality otherwise

referred to as the ‘fruits of a poisoned tree”.

In Mark Maulla and Asukile Mwapuki v. The People61, the Supreme Court reaffirmed the

position by holding inter alia that evidence discovered in consequence of an involuntary

confession is admissible.

Due to the frailties of human nature, it so happens that sometimes confessions are abused62. It is

easy to imagine a policeman who has been laboriously on the search of the criminal for a long

time and fully confident that the suspect has committed the offence or is aware of the

occurrences of the case under investigation. In the excited moment of his triumph, he finds

himself shot of one piece of necessary evidence which he may then be tempted to obtain from

the suspect by using unorthodox methods, such as threats, torture, inducements aimed at

breaking the suspects will or forcing him under pain to confess as to the discovery of items63.

Sometimes the suspect or accused may be unaccommodating as not to supply a ready confession,

the police officer concerned may then fall into the temptation to invent one for his convenience

61 (1980) ZR 119 (SC) 62 Supra note 34, p. 143 63 Ibid

34

so that he could secure a conviction. This type of impropriety may well be common parlance

among some police officers who feel that their chances of promotion to higher ranks are mainly

dependent upon the number of convictions they can secure64.

3.7 CONCLUSION

The courts admissibility of confessions practice and procedure in premised on established rules.

The failure to adhere to the practice and procedure with respect to the admissibility of

confessions operates in favour of the accused person. The primary rule is that for any confession

to be admissible before the courts of law, such confession must be one that is freely and

voluntarily given by the suspect or accused. Any allegations of threats, beatings or other

inducements which impliedly raise questions of the voluntariness of a statement given by an

accused person should always compel the courts to enter into a trial within a trial in order to

determine the voluntariness of the confession in question. Further, such confession must be one

made to a person in authority. Allegations of threats and procedural impropriety in the manner

confessions are obtained that ultimately form the subject of objections and appeals before the

courts of law usually stem from the police suspect encounter during interrogations which are

carried out away from the public or judicial scrutiny. In view of this and in a bid to ensure

minimum protection of the rights of an accused, the judge’s rules operate as guidelines for police

conduct in the manner in which interrogations should be carried out. However, the fact that the

judges rules are merely rules of practice and not rules of law have lead police officers to adhere

less to the strict requirements of conducting interrogations most of which have prejudiced the

64 Ibid

35

rights and interest of the accused right to a fair trial which essentially should start from the

manner police investigations and interrogations are carried out. Notwithstanding a confession

having been freely and voluntarily given, the courts reserve the discretion to exclude a

confession on prejudicial accounts surrounding its admissibility. The test as to whether the

discretion should be exercised is whether the application of the strict rules of admissibility would

operate unfairly against the accused. The cases reviewed indicate that this practice is one that has

not been properly exercised by the courts on various occasions and has formed the subject of

appeal more so where irregularities arise in administering a warn and caution statement before

any confession is obtained from the accused. It is also noted that the Zambian position on

illegally obtained evidence being admissible has provided an incentive for investigating

authorities to use unorthodox methods of interrogations such as torture. While the confession

obtained in such a manner may be rendered inadmissible, anything that is discovered as a result

of such confession if factual and relevant to the facts in issue is admissible before the courts of

law. This aspect may invariably implore investigation officers to test the waters using illegal

means in an attempt to make the accused reveal information that may be implied to be within his

knowledge.

36

CHAPTER FOUR

INADEQUECIES OF THE ZAMBIAN LEGAL FRAMEWORK ON

TORTURE

4.0 Introduction

Police officers are responsible for the lawful administration of justice on matters seized within

their conduct; the mistreatment of accused persons in a view to obtain or solicit for confessions is

a violation of human rights65. Accused persons must be presumed innocent until proven guilty

by a competent court of jurisdiction. The police on the one hand are given powers by law to

enable them carry out their mandate and obligations to the extent of using reasonable force in the

course of their duties66. However, the abuse of authority by law enforcement agencies has

constantly given birth to the arbitrary use of power and force resulting in adverse violations of

human rights and the due process of law against suspects through acts of torture in a bid to obtain

confessions. On this premise, torture cannot be divorced in addressing the admissibility of

confessions in the law of evidence as it is mostly in such cases that allegations of torture in

extracting confession from an accused arise, detracting from the voluntariness of a confession to

sustain its authenticity. The chapter therefore gives an analysis of the inadequacies of the

Zambian legal framework on torture, the legislative standards of the police and dangers of false

confessions from the police suspect encounter.

65 Supra note 46, p.97 66 Ibid, p. 100

37

4.1 THE LEGAL FRAMEWORK ON THE PROHIBITION OF TORTURE

Torture is generally construed as a grave violation of human rights and is strictly prohibited both

under the Zambian law and International law. In Zambia, the prohibition of torture is contained

under Article 15 of the Constitution; the relevant article provides that;

“A person shall not be subjected to torture or to inhuman or degrading punishment or

other like treatment67.”

This prohibition is further established in core international and regional human rights and

humanitarian law instruments as being absolute and non-derogable; which means that the state is

not permitted to temporarily limit the prohibition against torture under any circumstance

whatsoever, whether in a state of war, internal political instability or any other public emergency

as is the case with other fundamental rights and freedoms for which their limitation may be

justified under certain circumstances. The prohibition of torture is thus recognised as a

peremptory norm under international law or otherwise referred to as “jus congens” which is

Latin to mean a “compelling law”. The predominance and non exclusionary operation of the

prohibition of torture under international law is affirmed on the premise that it overrides any

inconsistent provision in any other treaty or customary law. Under international law, torture is

prohibited under Article 7 of the International Covenant on Civil and Political Rights68 and

Article 5 the Universal Declaration of Human Rights69 inter alia. However, the most detailed

and comprehensive prohibition aimed at combating torture is found in the United Nations

67 Article 15, Chapter 1 of the Laws of Zambia 68 International Covenant on Civil and Political Rights 1966 69 Universal Declaration of Human Rights 1948

38

Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment70

hereinafter referred to as the UNCAT71.

Article 1 of the UNICAT defines torture as;

“any act by which severe pain or suffering, whether physical or mental is intentionally

inflicted on a person for such purposes as obtaining from him or a third person

information or a confession, punishing him for an act he or the third person has

committed or is suspected of having committed , or intimidating or coercing him or a

third person, or for any reason based on discrimination of any kind, when such pain or

suffering is inflicted by or at the instigation of or with the consent or acquiescence of a

public official or other person acting in official capacity72”.

Furthermore, Article 15 of the UNCAT expressly prohibits the admission of evidence obtained

by torture. Under this Article, any statement which is established to have been made as a result

of torture or other cruel, inhuman or degrading treatment or punishment may not be admitted as

evidence against the person concerned or against any other person in any proceedings73.

4.2 ZAMBIA’S ADHERENACE TO INTERNATIONAL STANDARDS ON

TORTURE

Despite Zambia having ratified the UNCAT and having a provision in the constitution

prohibiting torture, suspects are still tortured as evidenced from accounts made by accused

70 Ng’andu,F.(2005). The Death Penalty in Zambia. http//www.biicl.org/file2305 county report accessed 3/11/15 71 United National Conventions Against Torture, Inhuman and Degrading Treatment or Punishment 1984 72 Ibid 73 Supra note at 70

39

persons during trial, many of which can be found in reported cases. Although Zambian courts do

not admit involuntary confessions into evidence; they allow any evidence found as a result of the

illegal confession74. As Dr. Fredrick Ng’andu aptly puts it;

“if for instance a murder weapon is found as a result of a confession obtained by torture,

the court will exclude the confession but allow the murder weapons to be produced in

court as part of the evidence. This clearly defeats the very purpose of the prohibition of

involuntary confessions75”.

Cases in which evidence was obtained after torturing the accused persons have been admitted

and courts have failed to make penal pronouncements on police officers involved in torture

largely owing to the fact that Zambia does not have a penal statute or provision criminalising

torture, an account which has arguably contributed to the continued use or resort to torture. The

best illustration of the extent to which torture can be perpetrated in Zambia for purposes of

extracting a confession was that illustrated in Chimba v. The Attorney General76.

“In this case, there was evidence that each of the plaintiffs was removed from a lawful

place of detention and taken in a closed van to an unknown place where for periods

varying between seven and ten days they were each held in very small, empty, completely

dark and dirty cells with an earth latrine on the floor. Their clothing was completely

removed; they had no clothes and no blankets. They were half-starved, and given little or

no water to drink and none to wash. They were each interrogated in a dark office on a

number of occasions, under three bright lights, threatened with death, or mutilation, and

slapped, punched and kicked. Other than the first plaintiff, they were photographed

74 Supra note at 23 75 Supra note at 70 76 (1972) ZR 165

40

naked. The first plaintiff reached the stage of mental breakdown. The second and fifth

plaintiffs were threatened with electric shock. The fourth plaintiff was subjected to

electric shock. Throughout they were under armed guard. Some of the interrogators were

recognised to be members of the Criminal Investigation Department and the guards were

Constables. The plaintiffs at one time held Ministerial or other high office in the

Government but later broke away from the ruling party to join an opposition party, and

the interrogation was designed principally to ascertain the source of its funds’.

Furthermore, in Attorney General v. Musonda Samuel Mofya77, the respondent having been

arrested and detained, the learned trial judge found that he had been subjected to assault as a

result of which he suffered from injuries consisting of swollen and numb arms, body abrasions,

swelling on the head and wrists among others. The learned trial judge found that the respondent

had been suspended on a “make shift swing” among police officers and tortured, Ngulube C.J

(as he then was) awarded the respondent costs for the torture at the hands of the police.

However, it is important to note for the two cases highlighted that notwithstanding clear

evidence of torture having been perpetrated at the hands of law enforcement officials no

prosecutions were made. It is further noted that due to the absence of law criminalising torture,

perpetrators are merely investigated on minor offences of assault with awards of compensation

made to the victims which in most instances is not commensurate to the gravity of the injuries

sustained which may even leave a victim with permanent disability, this invariably amounts to

accepting the use of torture in a subtle manner.

77 (1995) S.J (S.C)

41

This further raises the question as to whether the current legal framework governing confessions

and torture in Zambia is adequate as to comprehensively provide for the protection of suspects

and also facilitate the proper admission of confessions in the law of evidence.

In an interview conducted by the author with Mr. Switz Mweemba of the Legal Aid Board,

Mr. Mweemba reiterated that the current legal framework is not adequate on many accounts; he

indicated that the law needs to resolve firstly the continued acceptance of the use of reasonable

force by law enforcement officials. He stated that the law allows the use of ‘reasonable force’ but

who measures it? what amounts to reasonable force in any given circumstance is a question of

fact and is very difficult to determine with absolute certainty for the purposes of legal sanction, is

it a slap?, a kick?, it is therefore not known what reasonable force is and neither is it defined in

any penal statue leaving room for the use of torture with impunity78.

Attempts under the Zambian legal framework to counter the question of reasonable force are

provided for under the Criminal Procedure Code and the Penal Code. However, the reality on the

ground is that the proper regulation of such use of force is compounded by not having a law

criminalizing torture and is further exacerbated by the fact that during interrogations where

confession are obtained the court or other independent persons are rarely present. On this point,

Mr. Switz Mweemba indicated that the Evidence Act79 is not adequate as it does not provide for

how confessions should be admitted leaving the court usually to resort to common law. Because

there are usually no witnesses while confessions are extracted, law enforcement officials such as

the police always resort to all forms of defence and sometimes when a suspect sustains injuries

78 Mr. Switz Mweemba, Legal Aid Board, interview conducted by author on 6th November 2015, Livingstone. 79 Supra note at 7

42

while in police cells, they accuse the inmates of having inflicted the injuries or that such injuries

were sustained during a scuffle when the suspect wanted to escape liability or during

apprehension with reasonable force having been used to apprehend him80.

The Criminal Procedure Code provides that;

“If a person forcibly resists the endeavor to arrest him, or attempts to evade the arrest,

such police officer or other person may use all means reasonably necessary to effect the

arrest81”.

The use of force may therefore only be justified in the above situations provided by law. Not

only does the law empower law enforcement officials to use force but it also prescribes situations

when such force may be used. Consequently, where a law enforcement official uses force in

situations not provided for by law, he would have acted without lawful authority and therefore

subject either to disciplinary action or criminal sanctions82.

Furthermore, the Penal Code provides that;

“Where any person is charged with a criminal offence arising out of an arrest, or

attempted arrest, by him of a person who forcibly resists such arrest or attempts to evade

being arrested the courts shall, in considering whether the means used were necessary

or the degree of force was reasonable for the apprehension of such person, having

regard to the gravity of the offence which had been, or was being committed by such

80 Supra note at 76 81 Section 18(2) of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia 82 Supra note 46, p. 101

43

person and the circumstances in which such offence had been, or was being committed by

such person83.”

The ratification of an international instrument at international level has implications and provides

obligations on the part of the ratifying state. For instance, Zambia’s ratification of the UNCAT

on 7th October 1998 implies that Zambia as a state has agreed to fight impunity by making acts

of torture a crime, investigating and prosecuting allegations of torture, providing redress to

victims, excluding statements acquired through torture from all proceedings, and taking

legislative and other measures to prevent torture.

Article 2 (1) of the UNCAT provides a definition for torture, and obliges state parties to take

‘elective, legislative, administrative, judicial and other measures to prevent acts of torture in any

territory under its jurisdiction’. This includes an obligation to make torture an offence under

criminal law.

It is this particular ‘lacuna’ from the current legal framework of Zambia that has necessitated the

call by the Zambia Human Rights Commission84 for the enactment of a law criminalising

torture, a legislative reform that the commission has been actively advocating for to ensure the

full implementation of the UNCAT and further bring acts of torture to meaningful justifiable

ends for both victims and perpetrators of torture.

The Human Rights Commission notes that there is need for a law that will criminalise torture.

Speaking at a workshop held in Siavonga in which the commission engaged parliamentarians on

83 Section 18 of the Penal Code, Chapter 87 of the Laws of Zambia 84 The Commission is a National Human Rights Institution established under Article 125 of the Constitution whose mandate is among others the advocacy for human rights, investigations of human rights violations and proposal for legislative reform, as provided for under section 9 of the Human Rights Commission Act, Chapter 48 of the Laws of Zambia.

44

the criminalisation of torture, bail and bond reforms and the Universal periodic monitoring

framework, Human Rights Commission Director Florence Chibwesha stated that;

“It is regrettable that there is no law in Zambia that defines and criminalises torture. As

a result, culprits of torture are being prosecuted under provisions in the Penal Code Act

Cap 87 of the Laws of Zambia which relate to assault and occasioning of actual bodily

harm”, she said. Ms Chisbwesha said this kind of punishment falls far short of the

country’s obligation to the United Nations Convention against Torture and other cruel

inhuman and degrading treatment or punishment. She said the need for criminalizing

torture is urgent because the Zambian government has ratified the United Nations

Convention against torture and other cruel and inhuman tendencies85”.

It is important that Zambia take a leaf from countries such as Uganda and South Africa that have

not only ratified the UNCAT but gone further to make torture a criminal offence under its

domestic or national legal framework ensuring proper compliance with the obligations of the

UNCAT.

4.3 REPUBLIC OF UGANDA

Like Zambia, Uganda is a state party to the UNCAT, but has taken overt steps towards fulfilling

its obligations under the convention once it acceded to it.

In Uganda, a draft bill was done in April 2012 which saw the parliament of that country pass the

Prevention and Prohibition of Torture Law hereinafter referred to as the PPTA. The PPTA was

assented to by the President of Uganda H.E Yoweri Museveni on 27th July 2012. The Act brings

85 Zambia Daily Mail, Monday, November 2, 2015, p. 4

45

into effect Uganda’s obligation as a state party to the UNCAT. The PPTA provides a

comprehensive definition of torture, proscribing it as a criminal offence and subsequently

provides for sanctions of the offence for perpetrators in both official and private capacity.

Torture is defined under the Ugandan PPTA as;

“any act or omission by which severe pain or suffering whether physical or mental is

intentionally inflicted on a person for such purposes as obtaining from him information

or a confession, punishing him for an act committed, or intimidating or coercing him or

for any reason based on discrimination when such pain or suffering is inflicted by or at

the instigation of or with the consent of a public official or other person acting in an

official or private capacity86.”

Notably, there is a distinction in the definition of torture as provided in the UNCAT and the

PPTA in that; torture under the PPTA has been given extensive application to include acts of

persons committed in their private capacity, the rationale for this seems to lie on the justified and

logical deduction that acts of torture are not only perpetrated by law enforcement officials or

persons acting in their official capacity. By going further to enact legislation proscribing torture

as a criminal offence in its domestic frontiers, it is without doubt that Uganda has fully

implemented its international obligations on the standards of prohibiting torture by state parties

as envisaged under Article 2(1) of the UNCAT which obliges state parties to make torture a

criminal offence under its national legal systems.

86 PPT ACT of 2012

46

4.4 REPUBLIC OF SOUTH-AFRICA

South Africa is also a state party to the UNCAT as is with Zambia and Uganda. Like Uganda,

South Africa has made legislative strides in the prohibition and criminalisation of torture in

conformity with the international standards on the prohibition of torture.

In South Africa, the law in place on torture is known as the Prevention of Torture of Persons

Act87 hereinafter referred to as the PTPA. The law was enacted in July 2013 creating a specific

offence of torture and allied offences such as cruel, inhuman and degrading punishment or

treatment. The Act also establishes jurisdiction over acts of torture occurring outside of South

Africa and creates an obligation on the state to promote awareness programs directed at public

officials. Prior to the enactment of the PTPA, the South African police service adopted the Anti-

Torture Policy in 2009 and in 2011 an independent body called the Independent Police

Investigative Directorate was given the express mandate to investigate all allegations of torture

by the police.

Zambia ratified the UNCAT on 7th October 1998 and also became obliged to comply with the

provisions of the UNCAT. It is therefore imperative that Zambia emulates countries such as

South Africa and Uganda and other countries in Africa by enacting legislation that specifically

criminalises acts of torture in line with the international standards on the prohibition of torture

particularly the UNCAT as a way of demonstrating its fullest commitment to extinguishing the

vice by proscribing torture and other forms of cruel, inhuman and degrading treatment or

punishment.

87 Act No. 13 of 2013

47

4.5 LEGISLATIVE STANDARDS OF THE POLICE

The police as state agents were established to protect and safeguard the rights and interests of the

citizenry in addition to maintaining law and order. However, a careful analysis of torture cases

and disputed confessions on account of involuntariness discloses that the very institution created

or established to serve and protect the citizenry are actually at hand to abuse the noble authority

granted to them in the execution of their mandate by exercising their authority in an arbitrary

manner notwithstanding clear legislative and regulatory standards placed on the police in the

execution of their duty.

Among legislation which provides for the duties and functions of the police are the

Constitution88, the Police Act89, the Penal Code90 and the Criminal Procedure Code91 inter alia.

The referred laws and statutes prescribe a minimum standard for the police ‘modus operandi’

non of which authorises or gives mandate to the police to use torture or unreasonable force as a

tool of investigation or extracting confessions92. For the purpose of this particular outlook

emphasis will be placed on the Constitution and the Police Act.

The Zambia police service is charged primary with the duty of maintaining law and order inter

alia. The Police Act makes provision that the police are employed throughout Zambia in order to

serve the peace, prevent and detect crime as well as the apprehension of offenders against the

88 Supra note 28 89 Chapter 107 of the Laws of Zambia 90 Chapter 87 of the Laws of Zambia 91 Chapter 88 of the Laws of Zambia 92 Chibuye,S.(2008). Police Brutality in the Enforcement of Criminal Law in Zambia: An Overview, Directed research, Unza.

48

peace93. The police like any other enforcement agency are expected to exercise their power and

perform their duties as conferred by or imposed on them by law.

Section 14 (1) of the Police Act provides that;

“Every police officer shall exercise such powers and perform such duties as are by law

conferred or imposed upon a police officer, and shall obey all lawful (emphasis is my

own) directions in respect of the execution of his office, which he may from time to time

receive from police officers superior in rank to him.”

It therefore follows from the preceding section that actions done as a result of superior orders

with respect to the use of force or torture, will not provide immunity to an officer on the premise

that he was acting out of instructions from his superior during the course of his duty. The section

only allows officers to carry out lawful instructions or superior orders. An officer who departs

from the spirit of the section will be deemed to be operating outside the confines of the law

which will attract criminal sanctions and individual liability with respect of the acts committed or

done by him.

Further to the Police Act, Article 103 of the Constitution provides for the professional nature to

be exhibited by the police at all times as envisaged by the framers of the constitution and

therefore creates a legitimate expectation that the police shall abide by the qualities outlined in

the Article. The relevant Article provides that the police shall be nationalistic, patriotic,

93 Section 5, Supra note 90

49

professional, disciplined, competent and productive and its members shall be citizens of Zambia

and of good character94.

4.6 CONCLUSION

The chapter has examined the extent to which Zambia’s legal framework provides for the

effective prohibition of torture. It is not in dispute that torture is widely used by law enforcement

officials as a tool of extracting confessions from accused persons notwithstanding the act being

expressly prohibited under the Constitution of Zambia being the supreme law of the land.

However, it is notable as a particular defect in Zambia’s legal framework on torture in that its

penal laws flowing from the constitutional provision does not provide for the criminalisation of

torture. It is because of this particular ‘lacuna’ in Zambia’s penal laws that has seen perpetrators

of torture walk scot free or charged on lesser offences such as assault that undermine the gravity

of the offence of torture as a ‘jus cogens’ and victims merely compensated sometimes on injuries

that cannot be atoned by damages. While Zambia is a signatory to the UNCAT, it has not taken

progressive steps to either domesticate the instrument or bring within its penal law’s provisions

or an Act that criminalises torture in order to fully adhere to the international standards on the

prohibition of torture as countries such as the Republic of Uganda and South Africa have done.

Further, the chapter has re-evaluated some of the pertinent legal provisions and standards

establishing and providing for the mandate of the law enforcement agencies and in particular the

Zambia Police service, none of which provide for the use of torture in the execution of their

mandate. It is therefore imperative that law enforcement agencies act professionally in their

duties.

94 Article 103, Chapter 1 of the Laws of Zambia

50

CHAPTER FIVE

RECOMMENDATIONS AND CONCLUSION

5.0 Introduction

The preceding chapters have highlighted the various gaps that relate both to the law and practice

regarding the admissibility of confessions which without dispute require a comprehensive review

and positive response to remedy, especially with the inextricable link of the abuse of confessions

by law enforcement officials and the prohibition of torture. This can be countered by focusing on

a review of the law and practice in the admissibility of confessions that in turn would provide

enough safeguards ensuring the correct and proper admissibility of confessions protecting the

rights of an individual against the rule of self incrimination and further ensuring that only

voluntary confessions are admitted through proper investigative machinery to enhance the due

process of the law. This can further be achieved through a review of pertinent laws and

institutions that can counter law enforcement impunity and abuse of authority through impartial

investigations to ensure that the rule of law prevails at all times regardless of power imbalances

between accused persons and law enforcers.

5.1 REVISION OF THE LAW ON ILLEGALLY OBTAINED EVIDENCE

The courts have an important role to play in ensuring efficacy in the process of the admissibility

of confessions in the law of evidence especially when confronted with elements that disclose the

non observance of the due process or the rule of law and indeed legally conflicting principles that

51

stand to prejudice the rights and interests of an individual. A response by the court has been the

exclusion of confessions adjudged to have been involuntarily obtained. However, a paradox

exists within Zambia’s jurisprudence and the criminal justice system in as far as the

reconciliation of involuntary confessions and the law of illegally obtained evidence as

pronounced by the Supreme Court judgment of Liswaniso v. The People95, where it was held

that illegally obtained evidence is admissible before the courts of law as long as it is relevant and

factual to the facts in issues.

In practice, however, and notwithstanding the Supreme Court having provided a disclaimer that

the rule on illegally obtained evidence did not extend to confessions, the judgment provides a

window of abuse of confessions and incites illegal means of obtaining information from suspects

through means such as torture. While the confession will be excluded, the material or evidence

obtained as a result of such confessions will non the less be admitted as evidence before the

courts of law, culminating in what some have described as the “fruits of a poisoned tree”. The

judgment promotes illegality in a bid to correct a wrong. Jurisdictions such as America have

completely denounced the use of illegally obtained evidence as such is not admissible in the

courts of law, and its relevance to the facts in issue is immaterial96.

The Supreme Court of Zambia is not bound by its past decisions and has the jurisdiction to

overrule itself on a previous decisions where there is sufficient and compelling reason to do so as

illustrated in the Abel Banda v. The People97. The current impunity with which the

constitutional provision prohibiting torture, inhuman and degrading punishment has been

95 Supra note 23 96 Fourth Amendment of the American Constitution 97 Supra note 48

52

violated notwithstanding its traits of a ‘peremptory norm’ under customary international law

necessitates sufficient and compelling reasons for the Supreme Court to overrule itself. The

exclusion of illegally or improperly obtained evidence is a powerful remedy for the violation of

the constitutional rights and fundamental freedoms of an accused.

5.2 JUDGES RULES TO BE MADE RULES OF LAW

At present, the position under the Zambian criminal justice system legal practice and procedure

is that the judge’s rules are not rules of law but merely rules of practice meant to provide

guidance to law enforcement agencies particularly the police in the manner in which

interrogations should be carried out. There are little or no consequences for one who breaches the

judge’s rules whether intentionally or by omission in the course of their duties. A confession

obtained in breach of the judge’s rules as long as it is voluntary will be admitted by the courts of

law. This position has yet again provided a window of abuse inciting a “laize faire” attitude and

dereliction of duty by law enforcement officials at the expense of professionalism owing to the

lack of clearly delineated legal sanctions for purposively breaching the judges rules in the

manner in which interrogations are conducted and usually at the detrimental expense of the rights

and interest of accused persons and the due process of the law. It is therefore recommended that

the judges rules be converted into rules of law that both judges and law enforcement agencies

must legally and practically conform to, breach of which would lead to the absolute exclusion of

any confession obtained in such manner and alternative evidence sought. This would go a long

way in ensuring and indeed lessening the abuse of confessions, as all confessions would have to

meet the legal requirements of compliance and proficiency test before being admitted through

both law and practice.

53

5.3 SURVEILLANCE OF POLICE INTEROGATION ROOMS

Interrogations conducted by law enforcement officials and particularly the police are usually

conducted away from the public view and at the mercy of the authority. In order to ensure basic

professional adherence and assurance in the manner in which confessions are or should be

admitted that interrogations are recorded through visual and audio footage. It is notable from

most of the case law in Zambia that confessions are often disputed or challenged in the manner

in which they are obtained owing to the fact that they are usually given away from the public

view and without first hand judicial scrutiny. The evidence of voluntariness of a confession is

often submitted orally with the exception of written confessions. The installation of surveillance

cameras in interrogation rooms would provide real and first hand evidence for submission to the

courts scrutiny where the admission of a particular confession is brought into question or

disputed owing to duress, undue influence, threats, torture inter alia. The provision of such

equipment and facilities to the police would consequently add efficacy in the manner in which

confession related cases are heard and disposed of as surveillance camera’s would lessen the

need to go into the often tedious process of conducting a trial within a trial with respect to the

determination of the manner in which a particular confession was obtained.

5.4 RESTRUCTURING THE POLICE PUBLIC COMPLAINTS

AUTHORITY

With a notable trend of most of the violations of human rights with respect to obtaining

information from suspects from unorthodox and unlawful means of obtaining information are

often used has subsequently brought the Police Public Complaints (PPCA) into scrutiny as one

54

such authority whose effectiveness and efficiency requires review. Section 57B of the Zambia

Police Act, Chapter 107 of the Laws of Zambia provides for the establishment of the Police

Public Complaints Authority. Section 57G provides for the functions of the complaints authority

among which are to;

(a) receive all complaints against police actions;

(b) investigate all complaints against police actions which result in serious injury or

the death of a person;

(c) submit its findings and recommendation to-

(I) the Permanent Secretary to the Ministry responsible for home affairs;

(ii) the Police and Prison Services Commission;

(iii)the Inspector-General; or

(iv) Any other relevant body or authority as the circumstances of the case may

require.

While the authority was intended to provide effective remedial action for violations perpetrated

by the police for instance in cases of torture at the hands of the police, the autonomy,

effectiveness and efficiency of the police public complaints authority comes under serious

scrutiny as it has not lived up to the intention of the framers of the Act on various fronts in as far

as being a credible institution for remedial action. Among the arguments advanced on the

authorities lack of efficacy stems from the fact that it has not been well sensitised to the

community to understand its operations. Further, the perceived bias, lack of autonomy and

transparency in the manner complaints may be handled owing to the fact that the same institution

is charged with the responsibility of investigating and recommending punishment against

persons affiliated to it. Further, recommendations for redress are made to the Inspector General

55

of Police who forms part and parcel of the police service, a reality which may be argued as being

contrary to the rule of natural justice “Nemo Judex” which provides against one being a judge in

his own cause98. It is therefore recommended that to boast public confidence in the operation of

the police public complaints authority, there is need to restructure its legal framework by

introducing an independent body from the police service to receive and conduct investigations

of officers alleged to have perpetrated offences, such body of persons appointed by the judicial

service commission and ratified by parliament would be able to met out appropriate disciplinary

actions or recommendations to the Director of public prosecutions without bias. The need to

have the police public complaints authority secede from the police service as an entity is further

reinforced on the need that ‘justice must not only be done, but must be seen to be done’. The

effectiveness of the of the Police Public Complaints Authority largely depends on the good will

of the Inspector General of Police who’s objectivity in dealing with cases of officers under his

/her charge questionable.

5.5 REVISION OF THE HUMAN RIGHTS COMMISSION ACT

The Human Rights Commission is a National Human Rights Institution (NHRI) charged with the

mandate of promoting and protecting human rights for all persons in Zambia. The commission is

established pursuant to Article 125 of the Constitution, Chapter 1 of the Laws of Zambia while

its functions are provided for under an Act of parliament99. While the human rights commission

investigates human rights violations including acts of torture which in some cases are meant to

provide confessions for the commission of an offence, the commission does not have the legal

machinery of prosecuting such cases and merely makes recommendations for the redress of

98 Jones,I,E.(2001).Essential Administrative Law.(2nd e.d), p. 26 99 Human Rights Commission Act, Chapter 48 of the Laws of Zambia

56

various human rights violations. With specific bias to torture, the commissions State of Human

Rights Report indicated that a total of 17 cases of what qualifies to be torture were investigated

by the commission and only three recommendations were made for action to be taken against

the perpetrators to relevant bodies100. It would therefore go a long way to amend the Human

Rights Commission Act to provide for prosecution powers which would entail that cases

investigated would subsequently be taken on by the commission before the courts of law for

redress as opposed to merely making recommendations for redress.

5.6 CRIMINALISATION OF TORTURE

It has been well documented under a plethora of law reports that torture is one of the means or

methods that is used to obtain confessions from suspects. While Article 2 of the UNCAT clearly

states that ‘each state party shall take effective legislative, administrative, judicial or other

measures to prevent acts of torture in any territory under its jurisdiction”, no law in Zambia

defines the term torture or provides for torture as a specific crime as required under Article 4 of

the UNCAT101. Cases that would otherwise qualify as torture under the UNCAT are treated as

mere assault cases in Zambia because of this ‘lacuna’ in the domestication of the relevant

instruments102 or ensuring that torture is criminalised under the Zambian penal statute. As a way

of enhancing the protection of suspects and guarding against the possibility of the admissibility

of false confessions before the courts of law, torture must be criminalised to guard against law

enforcement agencies using or resorting to torture as a tool of extracting confessions either by

100 2014 State of Human Rights Report In Zambia, p. 25 101 Community Law Centre, Zambia Human Rights Commission and Open Society Initiative for Southern Africa, 2011. 102 Supra note 101

57

incorporation of a penal provision by amendment under the Penal Code, or the enactment of a

stand-alone Anti-Torture Law. Best practices can be obtained from countries such as South-

Africa, Uganda and Nigeria.

5.7 CONCLUSION

The main objective of the chapter was to provide a remedial based approach among the major

factors that may have a direct effect on the proper admissibility of confessions in the law of

evidence and providing a response to the challenges that come with the risk of false confessions

owing to the methods resorted to in obtaining confessions usually before the matter proceeds to

court in obtaining statements from accused persons and the infliction of torture at the hands of

investigative wings. The chapter further explored steps that can be taken to provide efficacy and

legitimacy in the admissibility of confessions in light of the risk of false or involuntary

confessions by enactment of a law proscribing torture, improving interrogation standards by

enhancing the judges rules, empowering relevant institutions to be proactive and responsive to

counter cases of torture as well as restructuring of institutions to meets the aspirations of the

people in as far as protecting the rights and interest of the citizenry. It is envisaged that once

effected, the recommendations would effectively provide an efficient system in the admissibility

of confessions in the law of evidence both in principle and at law.

58

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Judiciary of Zambia, Livingstone, 7th June 2015

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