JOEL MULEMWA - FINAL THESIS 2015

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
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
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
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
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
90
91
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

JOEL MULEMWA - FINAL THESIS 2015

JOEL MULEMWA - FINAL THESIS 2015

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