By COLLINS NKUMBWA
ABSTRACT
The Zambian legal justice system is premised on the notion that he who alleges must proof. This entails that there is need for a party who alleges in the affirmative to produce evidence to establish the facts in issue. The concept of corroboration applies in the criminal justice system in Zambia. There are certain offences and category of witnesses whose evidence requires to be supported by some material particular. This independent evidence is termed as corroboration. The purpose of corroboration is to eliminate the twin dangers of false complaint and false implication. This concept is cardinal in the Zambian justice system as it promotes the presumption of innocence and duo process in the dispensation of justice in criminal matters. It also promotes the discharge of the burden of proof and the standard of proof in criminal matters, that is, the prosecution proves a case beyond reasonable doubt but not beyond a shadow of doubt.
Keywords – Corroboration, Suspect Witnesses, Twin Dangers
1.0 INTRODUCTION
This paper discusses the concept of corroboration from the Zambian perspective. It discusses the definition, nature, purpose and requirement of corroboration as envisaged in the Zambian legal system. This shall be done through citation of judicial precedents and statutory provisions.
2.0 CORROBORATION
The concept of corroboration, to borrow the words of the Supreme Court of Zambia in the case of Nyimba Investments Limited vs NICO Insurance Zambia , elicits a cognisable controversy of jurisprudential moment. This is a concept that has been applied in the Zambian legal system time immemorial.
2.1 General Rule – As a general rule, courts may act on the testimony of a single witness even though uncorroborated.
2.2 Exception – There are certain categories of witnesses and/or offences where corroboration is required as a matter of law (it is mandatory).
2.3 Judicial Precedents
There are a number of judicial precedents that illustrate the requirement of corroboration for specific category of offences and certain category of witnesses. The following cases illustrate the foregoing:
a) The High Court of Zambia in The People vs Thomas Manroe held thus:
The position of the law is that as a general rule, Courts may act on the testimony of a single witness even where there is no other evidence which supports it. Both common sense and experience suggest that there are certain categories of witnesses, and certain types of evidence which are dangerous to rely on. Amongst this special species of evidence is the evidence of children. The evidence of children is key in two main respects. First, children may be witnesses to the commission of sexual offences. And second, children may in fact be victims to sexual offences. The general rule, therefore, is that evidence of all children who testify in Court must be corroborated. The rationale for requiring that the evidence of children must be corroborated is that by reason of immaturity of mind of a child, whether the evidence is sworn, or unsworn, one way, falls within the category of what may be conveniently called suspect witness, whose evidence must of necessity be treated as suspect. The general rule, therefore, in sexual offences is that there must be corroboration of both the commission of offence, and the identity of the offender in order to eliminate the twin dangers of false complaint, and false implication. (Emphasis mine)
b) Similarly, in Nsofu vs the people it was held that corroboration must not be equated with independent proof; it is not evidence which needs to be conclusive in itself. Corroboration is independent evidence which tends to confirm that the witness is telling the truth when she says that the offence was committed and that it was the accused who committed it. Where the evidence of a witness requires to be corroborated it is nonetheless the evidence of the witness on which the conviction Is based; the corroborative evidence serves to satisfy the court that it is safe to rely on that of the witness.
c) In Machipisha Kombe V The People it was held that in criminal cases of a sexual nature, such as rape and defilement, corroboration is required as a matter of law before there can be conviction. Corroboration must not be equated with independent proof. It is not evidence which needs to be conclusive in itself. Corroboration is independent evidence which tends to confirm that the witness is telling the truth when he or she says that the offence was committed and that it was the accused who committed it.
d) In Shamwana and others vs The People it was held that in some cases accomplices of a class may be mutually corroborative where they give independent evidence of separate incidents and where the circumstances are such as to exclude the danger of jointly fabricated story.
2.4 Statutory Provisions
Corroboration in Zambia may be required as a matter of law. This entails that the law mandates that there is need for corroboration before a court can convict. Some of the examples of the statutory provisions in Zambia include:
a) Section 107 of the Penal Code - A person cannot be convicted of committing perjury or of subordination of perjury solely upon the evidence of one witness as to the falsity of any statement alleged to be false.
b) Section 140 of the Penal Code provides – “………. provided that no person shall be convicted of any offence under this section upon the evidence of one witness only, unless such witness be corroborated in some material particular by evidence implicating the accused.
c) Section 78(9) of the Children’s Code - A juvenile court or Children’s Court may, having regard to the nature and circumstances of the offence in question, require evidence presented before the juvenile court or Children’s Court to be corroborated by some other material evidence.
3.0 CONCLUSION AND RECOMMENDATION
The Supreme Court of Zambia in Nyimba Investments Limited and Nico Insurance Zambia Limited stated thus: “As the artist Bob Dylan famously observed, you don't need the weatherman to know in which direction the wind blows.” Evidently, corroboration is not required in all the cases before court. The court may convict on the basis of one witness or in the absence of corroboration. However, corroboration is mandatory for certain category of witnesses and offences.
Corroboration may also be required as a matter of statute (the provision of the law so mandates). The concept of corroboration is critical in the Zambian legal system and it is recommended that the concept should be maintained as it acts as a second check in determining the guilty or innocence of an accused person. The consistency in Zambian jurisprudence is commendable and it is recommended that the concept should be refined and developed by taking into regional and international practices.
The recommendation as to whether or not to extend the concept of corroboration to other category of offences and witnesses requires, to borrow the words of the Constitutional Court of Zambia in Henry Kapoko vs the People , a proper placement within its jurisprudential roots. A good legal system should not be rigid but change with time. As also observed by Lord Wilberforce in Donoghue v Stevenson , the criterion of judgment must adopt and adapt to the changing circumstances of life.
About Author
COLLINS NKUMBWA holds, Bachelor of Laws (LL.B),Master of Laws (LL.M) in Commercial Law Doctor of Philosophy (PhD) in Law, at The University of Zambia. CIP (NIPA), LLB (UNZA), LLM (UNZA), ASCZ, PhD Candidate (UNZA)
REFERENCES
STATUTES
1) Children’s Code Act No. 12 of 2022
2) Penal Code Chapter 87 of the laws of Zambia
CASES
1) Donoghue v Stevenson (1932) AC 562
2) Henry Kapoko vs The People 2016/CC/0023 page J32
3) Machipisha Kombe v The People (S.C.Z JUDGEMENT No. 27 OF 2009)
4) Nsofu v The People (1973) Z.R. 287 (S.C.)
5) Nyimba Investments Limited And Nico Insurance Zambia Limited Selected Judgment No.12 Of 2017 P.366 At Page J41 (Page 406)
6) Nyimba Investments Limited vs NICO Insurance Zambia Limited Selected Judgment No.12 of 2017
7) Shamwana And 7 Others V The People (1985) Z.R. 41 (S.C.)
8) The People v Thomas Manroe HPA/50/2010
DISCLAIMER
The views expressed in this article are solely mine and do not represent any organisation with which I am affiliated.
The views and opinions presented in this article or multimedia content are solely those of the author(s) and may not represent the opinions or stance of Amulufeblog.com.