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Giving effect to the new Constitution: criminal proceedings - Constitution Watch 35/2013
Veritas
September 24, 2013

Giving effect to the New Constitution: Criminal proceedings

Introduction

Earlier Constitution Watches outlined legislative changes needed to give effect to the new Constitution, starting with those that should have been in place when the new Constitution came into effect. In this Constitution Watch we shall deal in more detail with amendments to Acts such as the Criminal Procedure and Evidence Act [the CP&E Act] to ensure that suspects and accused persons, i.e. defendants, in criminal proceedings are accorded the rights to which they are entitled under sections 50 and 70 of the new Constitution.

Accused persons have been entitled to these rights ever since the Declaration of Rights in the new Constitution came into force on 22nd May, but they are not yet reflected in the CP&E Act, which regulates the way in which criminal proceedings must be conducted. Until the Act is amended, criminal trials conducted in accordance with its provisions are liable to be set aside on review or appeal on the ground that the accused persons were denied their fundamental rights guaranteed by the new Constitution.

Pre-trial procedures

1. Arrest

Section 50 of the new Constitution gives people who have been arrested a number of important rights which are not reflected in the CP&E Act. These rights are:

(a) Right to contact relatives, advisers, etc.

Under section 50(1)(b), arrested persons must be allowed without delay to contact a spouse, relative or lawyer and to consult privately with their lawyer or doctor. The CP&E Act grants no such right.

(b) Right to visitors

Anyone who is detained following arrest has the right under section 50(5)(c) to be visited by their relatives, their lawyer, their doctor, their religious counsellor and “anyone else of their choice”. Again, the CP&E Act does not grant such a right.

(c) Right to silence

Under section 50(4) arrested and detained people have the right to remain silent and not to be compelled to make a confession or admission. At present, the CP&E Act, while not condoning the extraction of confessions by force, allows a court to draw adverse inferences from an arrested person’s failure to disclose facts when being questioned by police officers; the failure can be treated as corroborating the prosecution evidence given at the person’s trial. Such inferences cannot be drawn now that an arrested person, by remaining silent, is simply exercising his or her constitutional right.

(d) Right to be informed of their rights

Arrested persons must be informed of their right to contact their relatives and to consult their lawyers and doctors, as well as their right to remain silent.

In addition, under section 50(1)(a), arrested persons must be told why they are being arrested “at the time of arrest”; under section 32(5) of the CP&E Act, on the other hand, they need merely be told “forthwith”, which means they can be told after their arrest.

(e) Right to release after 48 hours

Under section 50(2) and (3), arrested persons must be released within 48 hours after their arrest, unless they have been released earlier or brought before a court. Although the CP&E Act also requires them to be released after 48 hours, it allows their detention to be extended if a justice of the peace, usually a senior police officer, has ordered their further detention, or if the 48-hour period ends on a Saturday, Sunday or public holiday. The Constitution permits no such extension: the only way in which an arrested person can be kept in custody for more than 48 hours is if a court orders the person’s further detention.

If arrested persons have not been accorded any of the rights mentioned above, their arrest and detention become illegal and they are entitled to compensation from the government or the police officer who arrested them [section 50(8) & (9) of the Constitution].

A further point about arrests is that the old Constitution allowed the killing of people who resisted arrest or tried to escape arrest, and section 42 of the CP&E Act declares such killing to be lawful. The new Constitution contains no such provision, and in section 86(3) states that the right to life cannot be limited. Section 42 of the CP&E Act should be reconsidered and amended.

Comment: The police handbook on human rights which instructs the police how to treat pre-trial prisoners must be rewritten and reissued.

2. Bail

Section 50(1)(d) of the Constitution states that arrested persons “must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention”. This means that in the absence of “compelling reasons” they must be released on bail. The wording of section 50(1)(d) is taken from section 49 of the Kenyan Constitution; it confers a greater right to bail than the South African Constitution does, which requires arrested persons to be released on bail only “if the interests of justice permit”.

Section 117 of the CP&E Act begins by giving awaiting-trial prisoners a right to bail unless a court finds that it is in the interests of justice for them to be detained in custody. The section goes on, however, to spell out in detail and at considerable length when it is in the interests of justice to keep people in custody and what factors a court may take into account in deciding bail issues. The section prohibits the grant of bail, save in exceptional circumstances, to people charged with serious offences such as murder, rape, armed robbery, indecent assault of children, treason, possession of dangerous weapons and failing to report bandits, saboteurs or terrorists.

Section 32 of the CP&E Act imposes further restrictions on the grant of bail. People who have been arrested for an odd miscellany of crimes for example bribery, money-laundering, illegal exporting of maize, theft of motor vehicles or vehicle registration-plates, theft of cattle, and forgery of identity documents must be kept in detention without bail for up to 21 days after their first appearance in court if the Attorney-General certifies that the crime they committed posed significant potential prejudice to Zimbabwe’s national interests.

These provisions are now unconstitutional. The new Constitution has granted arrested persons a right to bail in the absence of compelling reasons, and an Act of Parliament cannot dictate what are and what are not “compelling reasons”. It is for the court to decide in each particular case whether there are compelling reasons which justify keeping an arrested person in detention. The mere fact that a person has been arrested for a particular crime, even murder, is not in itself a compelling reason for denying him or her bail.

Trial procedures

1. Right to prosecute

Under section 258 of the new Constitution, the right to prosecute criminal cases on behalf of the State has been transferred from the Attorney-General to a new National Prosecuting Authority [NPA] headed by a Prosecutor-General. Under section 259(10) of the Constitution, an Act of Parliament must provide for the appointment of a board to employ prosecutors; the Act must also provide for their qualifications and conditions of service and for the structure and organisation of the NPA. Until such an Act is promulgated there can be no board to employ prosecutors, and in the absence of such a board the right of former members of the Attorney-General’s Office to conduct prosecutions is, at the very least, open to question.

2. Legal aid

Under section 70(1)(e) and (f) of the new Constitution, accused persons, i.e. defendants, in criminal trials must be assigned a lawyer at State expense if substantial injustice would otherwise result, and must be informed of this right.

The Legal Aid Act is consistent with this, in that it allows accused persons to be granted legal aid if they are “in need” of it or “would benefit” from it or if it is “desirable in the interests of justice” for them to have legal aid, but there is no provision requiring anyone to inform accused persons of their right to request legal aid. It would be desirable to include the duty to inform accused persons of this right in an amended CP&E Act and also to add this provision to the Legal Aid Act.

3. Right to silence

Section 70(1)(i) of the Constitution states that accused persons have the right to “remain silent and not to testify or be compelled to give self-incriminating evidence”. This is an extension of the right to silence given to arrested persons under section 50.

Under the CP&E Act accused persons can hardly be said to have a right to remain silent. Before every criminal trial they must be “requested” to outline their defence, and if they fail to do so, or if in their outline they omit relevant facts, the trial court may draw adverse inferences and treat the silence or the omission as evidence corroborating the prosecution case against them. Even if accused persons do choose to remain silent and not to give evidence, the CP&E Act allows the prosecutor and the judge or magistrate to question them, and if they maintain their silence in response to the questions or fail to mention relevant facts, the court can once again draw adverse inferences.

These provisions, which were authorised by the old Constitution, are now unconstitutional in that they penalise accused persons for exercising their right to silence. The CP&E Act must be amended to reflect the new constitutional dispensation. The amendments should, however, recognise that the right is not absolute, and that an accused person cannot always escape conviction by remaining silent. If the prosecution leads enough evidence to raise a presumption of guilt, then if the accused person will be convicted unless he or she disproves that evidence.

4. Right not to be convicted of conduct which is no longer a crime

Under section 70(1)(l) of the new Constitution accused persons cannot be convicted of conduct which has ceased to be criminal, which means that if a person commits a crime and the crime is subsequently abolished the person cannot then be prosecuted for the crime.

This is contrary to the current position, enshrined in section 17 of the Interpretation Act, that persons can be prosecuted for conduct which was criminal when it was committed, even if the statute creating the crime has since been repealed. The Interpretation Act will have to be amended accordingly.

5. Inadmissibility of illegally-obtained evidence

Under section 70(3) of the new Constitution evidence that has been obtained in violation of the Declaration of Rights, e.g. through illegal searches or monitoring of communications in violation of section 57, must be excluded in criminal trials if allowing the evidence to be given would render the trials unfair or would be detrimental to the administration of justice or the public interest.

The traditional common-law position is directly the opposite of this: illegally-obtained evidence is generally allowed in court, though evidence obtained by torture is excluded and statements made by accused persons will not be admitted in evidence unless the statements are proved to have been made voluntarily.

Provisions of the CP&E Act which reflect the common-law position will have to be amended. For example, section 258(2) of the CP&E Act allows the police to give evidence that an accused person pointed out something, e.g. a murder weapon or where stolen property was hidden, even though the accused was illegally induced, e.g. by threats, etc, to do so.

6. Sentence

(a) The death penalty - This is permitted under section 48 of the new Constitution, but its application is restricted:

• It can be imposed only for “murder committed in aggravating circumstances” [whatever that means].
• A court must have a discretion whether or not to impose it.
• It can be imposed only on men between the ages of 21 and 70.

The CP&E Act will have to be amended to give effect to these restrictions. At present it clearly does not: under section 337(a) of CP&E Act the death sentence is mandatory for murder, whether aggravated or otherwise, unless the court finds there are extenuating circumstances; and it may be imposed on men and women between the ages of 18 and 70. The Criminal Law (Codification and Reform) Act will also need to be amended: section 47 of that Act allows the death penalty to be imposed for all types of murder, whatever the murderer’s sex, and there is no upper age-limit for its imposition. It also allows people to be sentenced to death for attempts, conspiracies and incitements to commit murder.

(b) corporal punishment of male juveniles, i.e. the whipping of boys under the age of 18. There is also a question-mark over this. In 1989 the Supreme Court, by a 3-2 majority, held that such punishment was inhuman and degrading and contravened section 15 of the old Constitution. The government responded by amending section 15 of the old Constitution to allow “moderate” juvenile corporal punishment to be imposed. Section 53 of the new Constitution contains no such provision allowing juvenile corporal punishment, so the provisions of the CP&E Act providing for such punishment is unconstitutional.

Post-trial Rights

Section 70(5) of the new Constitution gives convicted persons the right, “subject to reasonable restrictions prescribed by law”, to appeal to a higher court against conviction and sentence.

In the light of this, section 36 of the High Court Act and section 11 of the Supreme Court Act are probably unconstitutional: the sections prohibit convicted persons from conducting their appeals in person, i.e. without a lawyer, unless a judge has certified that there are reasonable grounds for appeal. Such a blanket restriction on the right of appeal can hardly be described as reasonable, in view of the fact that most people in Zimbabwe cannot afford to engage a lawyer.

Urgency of the amendments

As we pointed out earlier, the amendments recommended in this Constitution Watch should have been in place on the 22nd May, when the Declaration of Rights in the new Constitution came into force. With every passing day they become more urgent. Criminal proceedings conducted in accordance with the unamended CP&E Act are liable to infringe the Constitutional rights of people who have been arrested, detained and charged with criminal offences; hence the proceedings may be set aside on technical grounds and the government and its officers may be exposed to claims for damages. At least two people have been sentenced to death since the Declaration of Rights came into force. Their sentences would have to be set aside because although they may have been properly sentenced under the old law, the new law on the death penalty [see above] is very different.

The CP& E Act is not the only urgent law reform that is needed. In the absence of a National Prosecuting Authority Act the right of anyone to represent the State in criminal proceedings is open to question and if a court decided that people currently working as prosecutors are not entitled to prosecute the proceedings would be a nullity.

Delay in effecting the amendments is not only prejudicial to accused persons but is also unfair to police officers, prosecutors and judicial officers who, when trying to carry out their duties in accordance with the law, unwittingly infringe the Constitution.

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