BY COLLINS NKUMBWA
ABSTRACT
This paper discussed the concept of a confession in the Zambia’s criminal justice system. It defines a confession and the admissibility requirements in the law of evidence in Zambia. Generally, a confession is admissible in evidence provided it is made freely, voluntarily, and not obtained through coercion, threats, or improper inducement. The judicial precedents in Zambia show that a confession is considered voluntary when made of the free will and accord of the accused, without fear or threat of harm and without hope or promise of benefit, reward, or immunity. The voluntariness is determined by holding a trial within a trial and discretion is still vested in the courts to admit a confession statement or not. While the concept of confession seems to be plausible in the Zambian legal system, there is still need to sensitize the citizenry on the right to remain silent and the right not to be subjected to torture by law enforcement officers for the sake of securing a confession. The courts should frown upon such a practice and this should not be taken as a procedural issue relating to admissibility but should result in fines and penalties by the concerned officers. There is need for promulgation of policies and laws relating to confessions in addition to the Judge’s rules.
Key words or phrases – Confession, Trial-within-a-Trial, Person in custody, Warn and Caution
INTRODUCTION
A confession in law is an admission of guilt or a statement made by a suspect or accused person acknowledging they committed a crime, or that they committed all elements of an offense. To be admissible in court, it must generally be made freely, voluntarily, and not obtained through coercion, threats, or improper inducement. A confession is considered voluntary when made of the free will and accord of the accused, without fear or threat of harm and without hope or promise of benefit, reward, or immunity. The validity of a confession depends largely on the circumstances surrounding the admission. The presence of coercion before or at the time of a confession generally implies a lack of volition on the confessor’s part and invalidates or harms the legitimacy of the confession. The judicial precedents fortifies the foregoing as follows:
JUDICIAL PRECEDENTS
1. Tapisha vs the People - Where any question arises as to the voluntariness of a statement or any part of it, including the signature, then because voluntariness is, as a matter of law, a condition precedent to the admissibility of the statement this issue must be decided as a preliminary one by means of a trial within a trial. The failure to conduct a trial within a trial when such an inquiry should have been conducted is an irregularity, but curable if there has been no prejudice to the accused. Where prejudice has resulted, or may have resulted, the appellate court must ignore the confession. The major prejudice arises because where a trial within a trial is held, an accused person can give evidence on the issue of voluntariness without exposing himself to the danger that his evidence on that issue will be used in the trial of the general issues. (Emphasis mine)2. Abel Banda v The People - The appellant was convicted of murder by administering a pesticide contained in a drink of Kachasu. The Prosecution evidence included, inter alia, an interrogation conducted without administering a warn and caution by the village headman. It was held 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 do not pertain to investigating crime. (Emphasis mine)3. Eugene Haminda v The People - The law is settled, and there is a plethora of authorities that whenever a police officer or law enforcement officer, is about to testify on incriminating evidence given by an accused person, such evidence should not be received without (enquiring from the defence, whether they object to its production or not…… where there is an objection to the production of incriminating evidence on the ground that it was not obtained freely and voluntarily, a trial-within-a-trial should be conducted to resolve the issue. In the cases we have just set out, the term "confession" relates to incriminating evidence given by (an accused person during the course of interrogations by a person whose ordinary course of work involves investigations. To a large extent, the conduct of a trial-within a-trial, considers whether the Judge' s Rules were complied with interrogated. From the foregoing, we surmise that mandatory requirement to "warn and caution" a person, only arises when that person is in custody or at a point where a police officer questioning such a person, believes or concludes that he is a suspect. (Emphasis mine)4. Zeka Chinyama and Others v. The People - the Supreme Court held as follows, on the admission of confession statements: When dealing with an objection to the admission of an alleged confession the trial court must first satisfy itself that it was freely and voluntarily made; if so satisfied, the court in a proper case must then consider whether the confession should in the exercise of its discretion be excluded, notwithstanding that it was voluntary and therefore strictly speaking admissible, on the ground that in all the circumstances the strict application of the rules as to admissibility would operate unfairly against the accused. The court is not required in every case to make a decision whether or not in the exercise of its discretion to exclude a confession. The circumstances in which the reception of evidence would operate unfairly against an accused will depend on the facts of the particular case and do not lend themselves to precise definition. The discretion ought to be exercised in favour of the accused where, but for the unfair or improper conduct complained of, the accused might not voluntarily have provided the evidence in question or the opportunity to obtain it. (Emphasis mine)5. Chileshe v. The People - It was pointed out that under the pre-1964 Judges ' Rules, which are applicable in Zambia, Rule number 3 requires that a person who is in custody, whether he has been charged or not, must be "warned and cautioned", that whatever he says may be used against him in court, before any interrogation takes place. (Emphasis mine)6. Kangachepe Mbao Zondo and Others v. The Queen , the Court of Appeal of Zambia, the forerunner of the Supreme Court, said the following on when a person is deemed to be custody: Rule 3 of the Judges' Rules provides that persons in custody should not be questioned without the usual caution being administered. In explanation of their rules, the judges further advised that prima facie the expression "persons in custody " in rule 3 applies to persons arrested before they are confined in a police station or prison, but the rule applies equally to prisoners in the custody of a warder. The terms" persons in custody and prisoners are therefore synonymous for the purposes of this rule. (Emphasis mine)7. Kafuti Vilongo v The People - The objection to the production of the confection statement on the grounds that the appellant did not understand or use the language in which it was recorded does not raise a triable issue to be dealt with by the procedure of trial within a trial. It is a matter to be dealt with as one of the general issues. The objection that the appellant could have been scared is not sufficient; it must be alleged that he was actually put in fear which induced the making of the confession statement. Once the appellant said in evidence that he had been beaten by the police and forced to sign a statement, the allegation should have been dealt with by the trial court in its judgment. (Emphasis mine)8. Charles Lukolomgo and others vs The People - Before admitting a statement obtained contrary to the Judges' Rules a trial court should consider whether the prejudicial effect of the evidence outweighs its evidential value. The Judges' Rules applicable in Zambia are the 1930 rules set out in paragraph 1118 of the 35th Edition of Archbold. (Emphasis mine)
CONCLUSION AND RECOMMENDATION
Confessions are admissible provided it is voluntary, made without fear or threat of harm and without hope or promise of benefit, reward, or immunity. A trial within a trial is held to determine the voluntariness of a confession statement. While the concept of confession seems to be plausible in the Zambian legal system, there is still need to sensitize the citizenry on the right to remain silent and the right not to be subjected to torture by law enforcement officers for the sake of securing a confession. The courts should frown upon such a practice and this should not be taken as a procedural issue relating to admissibility but should result in fines and penalties by the concerned officers. There is need for promulgation of policies and laws relating to confessions in addition to the Judge’s rules.
REFERENCES
CASES
Abel Banda V The People (1986) Z.R. 105 (S.C.)
Charles Lukolomgo and others vs The People (1986) ZR 115 (SC)
Chileshe v The People [1972] Z.R. 48
Eugene Haminda and The People Appeal· No 45/2021
Kafuti Vilongo v The People (1977) Z.R. 423 (S.C.)
Kangachepe Mbao Zondo and Others v. The Queen [1963 64] Z. and N.R.L.R 97
Tapisha V The People (1973) Z.R. 222 (C.A.)
Zeka Chinyama and Others v The People [1977] Z.R. 42 6
ONLINE SORUCES
Legal Information Institute. Cornell Law School. https://www.law.cornell.edu/wex/confession
REFERENCES
Abel Banda V The People (1986) Z.R. 105 (S.C.)
Charles Lukolomgo and others vs The People (1986) ZR 115 (SC)
Chileshe v The People [1972] Z.R. 48
Eugene Haminda and The People Appeal· No 45/2021
Kafuti Vilongo v The People (1977) Z.R. 423 (S.C.)
Kangachepe Mbao Zondo and Others v. The Queen [1963 64] Z. and N.R.L.R 97
Tapisha V The People (1973) Z.R. 222 (C.A.)
Zeka Chinyama and Others v The People [1977] Z.R. 42 6
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ABOUT AUTHOR
Colins Nkumbwa is a Bachelor of Laws, as well as a Masters Degree holder. He is currently undertaking his Doctorate of Philosophy at the University of Zambia. Other than that, he attained a Certificate in Prosecution from the National Institute of Public Administration. He has served as legal and compliance officer, associate, legal advisor, legal counsel, board secretary, lecturer and part-time lecturer at multiple institutions and is currently a lecturer of law at the Copperbelt University.