The admissibility of evidence obtained through human rights violations in Zambia: Revisiting Liswaniso v The People (1976) Zambia Law Reports 277

Introduction

The 1976 Zambian Supreme Court decision of Liswaniso v The People ¹ is the leading authority in that country on the admissibility of evidence obtained illegally or through human rights violations. In that case, the Supreme Court held that evidence obtained illegally or in violation of the constitution is admissible as long as it is relevant. For many years attempts have been made to convince the Supreme Court to reconsider its decision and set new criteria that could be used to determine the admissibility of evidence obtained through human rights violations. These attempts should be understood against the background that, unlike the constitutions of some African countries such as South Africa, ² Kenya ³ and Zimbabwe, ⁴ the Constitution of Zambia is silent on the issue of the admissibility of evidence obtained through human rights violations. Since 1976, there have been important developments nationally (in Zambia) and internationally which support the argument that there is a need for the Supreme Court to revisit the criteria set in Liswaniso v The People and stipulate new guidelines that have to be followed in the admissibility of evidence obtained through human rights violations. These developments highlight the weaknesses in the criteria Liswaniso v The People. The purpose of this article is to suggest ways in which the Supreme Court of Zambia could, without overruling its decision in Liswaniso v The People, develop criteria to determine the admissibility of evidence obtained through human rights violations. The structure of this article is as follows: in addition to the introduction, the author will highlight the facts and holding in Liswaniso v The People, followed by an illustration of cases, both from the High Court and the Supreme Court, in which attempts have been made to challenge the decision in Liswaniso v The People. After that, an analysis of how the Supreme Court could revisit its criteria in Liswaniso v The People is undertaken. Although this is not a comparative study, where necessary case law and constitutional provisions from other African countries and from the European Court of Human Rights are referred to in order to suggest ways in which Zambia could deal with the issue of the admissibility of evidence obtained through human rights violations. This is because, irrespective of the judicial system being followed in any country, courts have grappled and will continue to grapple with the issue of the admissibility of evidence obtained through human rights violations as it directly impacts on one of the most important human rights—the right to a fair trial. Another reason for referring to case law from Anglophone African countries is because these countries share a lot in common with Zambia—their law of evidence is of English common law origin. Like Zambia, these countries have also ratified regional and international human rights which guarantee, inter alia, the right to a fair trial. In order to put the discussion in context, I will start by briefly highlighting the facts and holding in Liswaniso v The People.

Facts and holding in Liswaniso v The People

The applicant, a police officer, solicited a bribe from the complainant, whose car he had impounded for having defective tyres. ⁵ The complainant and the applicant arranged that the complainant would take the bribe to the applicant’s house. After that arrangement, the complainant reported the matter to the police. The police informed the complainant that they would give him the money in question, after recording the numbers on the currency notes, to take to the applicant’s house and that, after giving the money to the applicant, he should alert them so that they search the house. ⁶ The police had, before giving the money to complainant, prepared a search warrant which was signed by a magistrate. The search warrant showed that the money in question was in the applicant’s house. ⁷ This was not true because at the time of the application for the search warrant, the money had not even yet been given to the complainant to deliver to the applicant. Equipped with the search warrant and the money, the police, using their vehicle, picked up the complainant from his house and dropped him off a few metres away from the applicant’s house and instructed him to alert them, by lighting a match, after handing over the money to applicant. This is what the complainant did and shortly thereafter the police arrived at the applicant’s house. The police:

asked the applicant if he had any money and when a negative reply was received permission to search the house was sought but the applicant refused to grant it because he ‘was shocked’ to see them come into the house. After the search warrant had been shown to him the house was searched by the police in the presence of the applicant and his wife in consequence of which the very…cash that had been handed to the complainant for the purpose was found in the right inside pocket of the applicant’s jacket taken out of a wardrobe in the applicant’s bedroom. The applicant was thereupon arrested and charged. ⁸

Attempts to convince courts to revise the rule in Liswaniso v The People

As mentioned above, there have been unsuccessful attempts by litigants to convince Zambian courts to revisit the rule in Liswaniso v The People. The first case in which the Supreme Court was called upon to reconsider its decision in Liswaniso v The People was that of Joseph Knox Simwanza v The People. ¹⁷ In this case the appellant was convicted by the court Martial for stealing public funds. Some of the evidence used to convict the appellant, the record of transactions on his bank account, had been obtained from the bank without a search warrant and the accused argued that the evidence in question had been obtained illegally and therefore inadmissible for violating Article 19 of the Constitution. ¹⁸ The appellant also called upon the court to reconsider its decision in Liswaniso v The People. ¹⁹ In dismissing the appellant’s argument, the court held that:

We are satisfied that the absence of a search warrant does not make documents from the bank inadmissible by statute and, for this reason, we find that there is no need, as suggested by Mwisiya, [the appellant’s lawyer] for us to consider if the case of Liswaniso v The People…is good or bad law. The point discussed in that case does not arise and, as presently advised, we still feel that our decision in Liswaniso is good law. ²⁰

The above two cases were decided on the basis of the 1973 constitution. In 1991 Zambia adopted a constitution which includes a comprehensive Bill of Rights. ²⁷ One of the rights provided for in the Constitution is the right to privacy. Article 17 of the 1991 Constitution, which substantially reproduces Article 19 of the 1973 Constitution, ²⁸ provides that:

The High Court case of People v Chipawa and Another ²⁹ was the first decision in which the Supreme Court’s holding in Liswaniso was challenged since the coming into force of the 1991 Constitution. In this case, the accused was charged with the offence of armed robbery. ³⁰ Some of the evidence (the disc of the vehicle that the accused stole) that was adduced at the accused’s trial was obtained from the accused’s house without a search warrant. The accused’s lawyer argued that ‘the search was not only illegal, but also violated the Constitution’ and that ‘although the common law position is that evidence illegally obtained is admissible, with the enactment of the Constitution, and the concomitant Bill of Rights, the common law rule ceased to apply’. ³¹ He specifically added that the enactment of the Constitution with the Bill of Rights had abrogated the ruling in Liswaniso. ³² He added that ‘in the Liswaniso case, the Supreme Court failed to direct their minds to the distinction between “illegally obtained evidence”, and “evidence obtained in breach of an entrenched Bill of Rights.”’ ³³ He added that ‘the terms of Article 17 are mandatory and the court has no discretion to admit evidence procured in contravention of Article 17 of the Constitution’ and that ‘to admit evidence procured in contravention of Article 17 of the Constitution would be to render the entire Bill of Rights, a dead letter’. ³⁴ The prosecution argued that in the light of the Supreme Court’s decision in Liswaniso, the illegally obtained evidence was admissible. ³⁵ The court observed that ‘[t]he question that falls to be determined in this application is narrow. The question is: is a Court entitled to admit, evidence procured illegally? That is to say, evidence procured in contravention of the law?’ ³⁶ The court started by examining the common law jurisprudence on the issue of illegally obtained evidence, in particular the decision of the Privy Council, ³⁷ before observing that ‘[o]ur locus classicus case on the point under discussion is the case of Liswaniso v The People…’ ³⁸ Thereafter, the court summarised the facts, issues and holding in Liswaniso. ³⁹ The court concluded that:

The issue as I see it, is not whether or not it is lawful to conduct a search of a person or his property without a search warrant—it is incontrovertible that a search conducted without a warrant is illegal and may be visited by an action for damages. The issue is rather whether the evidence obtained as a result of the illegal search of a person or property, should, if factual (i.e. true), and relevant be admissible in evidence. This question represents and manifests a tension between two competing public interests. On one hand there is need to protect persons from illegal or irregular invasions of their liberties by especially investigating authorities. On the other hand, it is also in the interest of the public for the investigative authorities to obtain evidence that may be vital to ensure that justice is done. This is therefore a question of broad legal policy. This legal policy was categorically resolved by the Supreme Court in the Liwaniso case, when it was held that apart from involuntary confessions, evidence illegally obtained, is, if relevant, admissible regardless that it violates a provision of the Constitution, or some other law. ⁴⁰

In Miyutu and another v The People ⁴⁴ the appellants were convicted of murder based, inter alia, on the statements they made to the police before they were cautioned contrary to the Judges’ Rules. One of the accused also argued that the statement (exhibit P4) had been obtained from him through torture and threats. ⁴⁵ The same statement (exhibit P4) had been admitted against a co-accused for his conviction and had been relied on by the police to discover real evidence (exhibit P2—the canoe pot) which had been admitted in evidence against the accused. The accused argued that both exhibit P4 and exhibit P2 were inadmissible. This was because exhibit P2 was discovered on the basis of exhibit P4. In other words, exhibit P2 was the fruit of the poisonous tree, exhibit P4. The court held that exhibit P4 was inadmissible against the accused. This is so because in Zambian law of evidence, an extra-curial admission by an accused is inadmissible against a co-accused. ⁴⁶ Most importantly, the court held that:

It being a trite legal position, that illegally obtained evidence is nonetheless admissible evidence. Hence, exhibit ‘P2’ which was obtained by [the police] following upon information from an inadmissible statement (exhibit ‘P4’), is nonetheless admissible evidence. The connection of exhibit ‘P2’ to the commission of the offence is that it was the one which was used to inflict the fatal injuries on the deceased. ⁴⁷

The way forward

According to the Supreme Court in Liswaniso, the same rule governs the admissibility of evidence obtained through violating a right in the Bill of Rights and that obtained through disregarding a piece of legislation. This is because the Supreme Court held that illegally obtained relevant evidence is admissible ‘regardless of whether or not it violates a provision of the Constitution (or some other law)’. ⁵¹ It is suggested that in its process of relaxing its rule in Liswaniso, the starting point is perhaps for the Supreme Court to develop different rules that apply to illegally obtained evidence, on the one hand, and unconstitutionally obtained evidence on the other. ⁵² In this regard, any evidence that has been obtained through violating a right in the Bill of Rights should be categorised as unconstitutionally obtained evidence and evidence which is obtained in violation of, for example, the Judges’ Rules ⁵³ or piece of legislation, ⁵⁴ or a recognised privilege (such as lawyer-client or legal professional privilege ⁵⁵ and spousal privilege ⁵⁶ ) could be classified as illegally or unfairly obtained evidence. In determining whether or not to admit illegally obtained evidence, the court should, apart from considering its relevancy, also have regard to factors such as the seriousness of the violation, the need for the court to prevent or deter law enforcement officers from disregarding the law, and the public interest in bringing the criminals to book. ⁵⁷ If the violation was so serious or involved the commission of an offence by the law enforcement officer, then courts should exclude that evidence. However, because of the fact that there will be cases where illegally obtained evidence will also be unconstitutionally obtained (as was the case in Liswaniso v The People), in such cases courts should lean more towards assessing the admissibility of such evidence using the unconstitutionally obtained evidence test (which is discussed below).

The Constitution of Zambia provides for several rights, including those which could be violated in the process of gathering evidence. These include: the right to personal liberty; ⁵⁸ the right not to be subjected to torture, or to inhuman or degrading punishment or other like treatment; ⁵⁹ and the right to the privacy of home and other property. ⁶⁰ As mentioned above, unlike the constitutions of some African countries such as South Africa, Kenya and Zimbabwe, the Constitution of Zambia is silent on the issue of the admissibility of evidence obtained through human rights violations. This situation is not unique to Zambia. In other African countries such as Mauritius and Namibia, constitutions are also silent on the admissibility of evidence obtained through human rights violations. However, courts in these countries have developed jurisprudence on the admissibility of evidence obtained through human rights violations which the Zambian Supreme Court could find of interest in developing its jurisprudence. In Mauritius, the Supreme Court has not been consistent in its approach to the admissibility of evidence obtained through human rights violations. At one stage it held that such evidence is inadmissible, irrespective of which right is violated (of course with the exception of the right to freedom from torture), ⁶¹ and in a later judgment it held that such evidence may be admitted if the violation is not serious. ⁶² In Namibia, courts have held that evidence obtained through human rights violations will be admitted if its admission would not render the trial unfair or would not be detrimental to the administration of justice (see Mujuzi, 2016).

Related to the above point, when it comes to issue of admitting evidence obtained through human rights violations, the Zambia Supreme Court may also have to draw a distinction between evidence obtained through violating absolute rights on the one hand and that obtained through violating non-absolute rights. Article 25 of the Constitution of Zambia provides that:

Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of Articles 13, 16, 17, 19, 20, 21, 22, 23, or 24 to the extent that it is shown that the law in question authorises the taking, during any period when the Republic is at war or when a declaration under Article 30 is in force, of measures for the purpose of dealing with any situation existing or arising during that period; and nothing done by any person under the authority of any such law shall be held to be in contravention of any of the said provisions if it is shown that the measures taken were, having due regard to the circumstances prevailing at the time, reasonably required for the purpose of dealing with the situation in question.

Another factor that could be considered by courts in deciding whether or not to exclude evidence obtained through violating a non-absolute right, is the conduct of the police in the process of obtaining the evidence. The Supreme Court already considered this factor in Liswaniso when it held that the evidence was admissible because ‘the mistake made by the police officer concerned was a venial one and not fraudulent or else he would not have taken the trouble to obtain the search warrant had his intention been deliberately to disregard the law.’ ⁶⁵ If a court finds that the police deliberately violated a human right or acted fraudulently, this could be invoked to find the evidence obtained through such conduct inadmissible. In other words, the Supreme Court may hold that in case where evidence has been obtained through violating an absolute right, such evidence must be excluded. The court has no discretion but to exclude such evidence. And in case where evidence was obtained through violating a non-absolute right, courts may admit such evidence if there are compelling reasons to admit it.

As mentioned above, the rights to freedom from torture or inhuman or degrading treatment are absolute. Zambian courts could hold that evidence obtained through inhuman or degrading punishment or other like treatment, as is the case with evidence obtained through torture, is inadmissible. Zambian courts have already held that confessions obtained through torture are inadmissible. ⁶⁶ When an accused alleges that a confession was obtained through torture, courts will hold a trial within a trial to determine whether or not the confession is admissible. ⁶⁷ If the accused alleges that a confession was made as a result of torture and the prosecution fails to convince court that that the confession was made freely and voluntarily, the court will find the confession inadmissible. ⁶⁸ However, Zambian courts are yet to define the meaning of ‘torture’. Courts may have to follow the definition of ‘torture’ in the Convention against Torture, to which Zambia is a party. ⁶⁹ However, unlike their Zimbabwean counterparts ⁷⁰ or the European Court of Human Rights (as seen below), Zambian courts are yet to express a view on whether evidence obtained through inhuman or degrading punishment or other like treatment is inadmissible.

The challenge is that there is a danger that courts may exclude a statement obtained through torture or inhuman or degrading treatment but admit a fact or real evidence discovered on the basis of that statement (as did the High Court in Miyutu and another v The People). The Supreme Court should therefore make it very clear that if a statement or an admission or a confession has been found to be inadmissible on the ground that it was obtained through torture or inhuman or degrading treatment, any evidence, whether real or otherwise, discovered as a result of that statement, admission or confession, is also inadmissible. This is so because without violating the right to freedom from torture or inhuman or degrading treatment which led to the statement, that other evidence would also not have been obtained or discovered. As the Supreme Court of Appeal of South Africa put it ‘focusing…on the classification of the evidence (distinguishing between the nature of the evidence—testimonial or real) is misleading, since the question should be whether the accused was compelled to provide the evidence.’ ⁷¹ The exclusion of factual or real evidence obtained through inadmissible confessions or statements will also ensure that law enforcement officers are deterred from using torture as an investigative tool. As the Grand Chamber of European Court of Human Rights held in Gäfgen v Germany: ⁷²

Admittedly, in the context of Article 6 [of the European Convention of Human Rights], the admission of evidence obtained by conduct absolutely prohibited by Article 3 might be an incentive for law-enforcement officers to use such methods notwithstanding such absolute prohibition. The repression of, and the effective protection of individuals from, the use of investigation methods that breach Article 3 [which prohibits torture and inhuman or degrading treatment] may therefore also require, as a rule, the exclusion from use at trial of real evidence which has been obtained as the result of any violation of Article 3, even though that evidence is more remote from the breach of Article 3 than evidence extracted immediately as a consequence of a violation of that Article. Otherwise, the trial as a whole is rendered unfair. ⁷³

The challenge, though, is that in cases where the accused have alleged that the police obtained the evidence through torture, they have not specifically alleged that it was a violation of their constitutional right. This could explain why courts have not approached this type of evidence from a human rights/constitutional perspective. However, nothing prevents courts from raising this issue mero muto, as failure by the accused to categorise the abuse in question as a violation of the right in the Bill of Rights would be a technicality and its categorisation as such by the court would not prejudice the prosecution in any way. Although courts are supposed to be impartial and independent, ⁷⁸ Article 118(2)(e) of the Constitution of Zambia provides that ‘justice shall be administered without undue regard to procedural technicalities’. The High Court held that ‘it is the duty of the Court when breaches of the law arise to step in and look at the breaches despite lack of pleadings.’ ⁷⁹ The principles of judicial impartiality and independence cannot be invoked by courts to ignore human rights violations simply because the issue was not raised by the accused. Courts could raise the issue and call upon both parties to make submissions, if necessary. As the Supreme Court held, ‘[w]e understand the right to a fair trial to mean a neutral trial conducted to accord each party to the proceedings their due process rights.’ ⁸⁰ The Supreme Court has also held that ‘it is immaterial whether or not an accused is legally represented…, in all cases, the court must ask the defence—represented or unrepresented—whether they wish to object to the admission in evidence of a confession.’ ⁸¹ Nothing prevents courts from extending that reasoning to evidence, apart from a confession, obtained as a result of violating the right to freedom from torture. The accused has a duty to call witnesses in support of his submissions ⁸² and these could include expert witnesses. However, it is the duty of the court, not the witnesses (including expert witnesses), to conclude that the evidence before it shows that the accused was subjected to torture. ⁸³ The court does not have a duty to raise the questions that the accused or his lawyer should put to the prosecution. ⁸⁴ It should also be emphasised that the right to freedom from torture is an absolute right and Zambia has an international obligation to prosecute those who commit torture. ⁸⁵

Another important factor that the Zambian courts may have to consider in deciding whether or not to admit evidence obtained through human rights violation, is whether the accused or the third party’s rights, for example those of witnesses, were the ones violated in the process of gathering evidence. It is argued that the same approach suggested above with regards to the admissibility of evidence obtained through human rights violations should apply whether the rights that were violated were those of those accused or of a third party. For example, if evidence was obtained through violating a witness’s right to freedom from torture, it should be held inadmissible. Jurisprudence from Zambian courts shows that courts are open to this line of reasoning. ⁸⁶ Whether or not the right in question was violated by a private individual or a public official in the process of obtaining evidence should not make a difference to the court’s decision whether or not to admit the evidence in question. ⁸⁷ What matters is the nature of the right that was violated (whether absolute or non-absolute) and the seriousness of the violation and police or private individual’s conduct (in the case of non-absolute rights). However, in the light of the fact that the definition of torture under Article of the Convention against Torture is limited to severe pain or suffering inflicted by public officials or with the acquiescence of public officials, private individuals cannot commit torture. ⁸⁸ This means that with regard to private individuals who have subjected the accused or any person to treatment that would have amounted to torture had it been carried out by public officials, evidence would have to be excluded on the ground that it violated the rights not to be subjected to inhuman or degrading treatment. This is because, as the Committee against Torture has observed, in practice the line that distinguishes conduct that amounts to torture from that which amounts to inhuman or degrading treatment is often blurred. ⁸⁹

Conclusion

In the 1976 case of Liswaniso, the Zambian Supreme Court held that illegally obtained evidence is admissible as long as it is relevant. Since then, unsuccessful attempts have been made to convince the Supreme Court and the High Court to reconsider this position, especially when the evidence in question has been obtained in violation of a right in the Bill of Rights. Recent decisions from the Supreme Court show that the court is unlikely to change its position on this issue. Although it is beyond the scope of this article to discuss the admissibility of illegally obtained evidence in civil matters, it should be mentioned in passing that the criteria in Liswaniso have also been extended to civil matters. ⁹⁰ In this article, the author has suggested ways in which the court could relax, without overruling, its rule in the Liswaniso when dealing with evidence obtained through violating human rights. However, there is nothing that prevents the court from overruling its decision in Liswaniso because it has the power to do so. This was confirmed by the Supreme Court in Match Corporation Limited v Development Bank of Zambia and Another, ⁹¹ in which the court held that it can decline to follow its earlier decision if it is of the ‘view [that] the previous case was wrongly decided and, secondly, if so, whether there is a sufficiently strong reason to decline to follow it. ⁹²