In our law the terms “crime”, “criminal offence” and “offence” are used interchangeably without distinction. They all mean the same thing. The Constitution uses the word “offence”, which it defines rather unhelpfully as meaning “a criminal offence”. The Criminal Procedure and Evidence Act [Chapter 9:07] uses “offence” for the most part, though some sections refer to crimes. The Criminal Law Code, on the other hand, talks of “crime” and defines it as:
“any conduct punishable by this Code or as a criminal offence in any other enactment”.
Throughout these notes, for the sake of consistency, the word “crime” is used.
Because of the great variety of crimes in our law and the different purposes which the criminal law is intended to achieve, one cannot define the concept of crime by reference to its content. Very often the same conduct constitutes both a crime and a delict. For example, hitting a person without lawful cause is a crime ‒ an assault ‒ and also gives rise to a delictual claim for damages. As one learned author pointed out:
“A delict is not a distinct factual concept; it is merely a wrong regarded from the individual’s point of view and in the light of procedure. When the State assumes the right to pursue a wrong, to exact punishment and so effect atonement, we call the proceedings criminal and the wrong, regarded from this point of view, a crime.”
Rather than trying to define the nature of a crime by reference to its content, it is better to define it by reference to its legal consequences, to the fact that the State assumes the right to punish people who commit crimes. Hence the definition in an old textbook, Gardiner & Lansdown South African Criminal Law and Procedure 6th ed vol 1 page 1:
“A crime is a violation of the law for which the State may exact punishment.”
The same idea finds expression in section 2 of the Criminal Procedure and Evidence Act [Chapter 9:07], which defines “offence” ‒ i.e. crime ‒ as “an act or omission punishable by law.”
Probably that is the best one can do by way of definition.
Statutes that lay down fines as penalties for crimes no longer specify the fines as amounts in dollars; instead they express them as “levels” on a Standard Scale of Fines. To take a random example, section 183 of the Criminal Law Code states that anyone guilty of perjury is liable to “a fine not exceeding level ten or to imprisonment for a period not exceeding five years or both”.
Before 2001 fines were expressed as monetary amounts, but inflation (later increasing to hyperinflation) reduced the real value of these amounts so that statutes had to be amended constantly in order to keep fines realistic. Section 280 of the Criminal Law Code now provides that fines are to be expressed as levels on the Standard Scale of Fines set out in the First Schedule to the Code. According to this Standard Scale, a level 1 fine is a fine of US $20, a level 2 fine is $30, a level 3 fine is $60, and so on up to level 14, which is $10 000. The monetary amounts specified in the Standard Scale can be amended by the Minister of Justice through a statutory instrument, which is a much quicker process than amending the individual fines in each Act of Parliament. So if, for example, the Minister publishes a statutory instrument stating that level 1 fines will be increased to $30, the amendment will automatically increase the amounts in every statute that provides for a fine of level 1 to be imposed.
The most recent amendments to the Standard Scale of Fines have not in fact been made by the Minister, but instead have been made through the Finance Acts of 2009, 2017 and 2019.
The rules of criminal procedure supply the mechanism by which the criminal law is put into practice. It is part of our adjectival, as opposed to substantive, law.
Substantive law determines the rights and duties of individuals and the State. Criminal law, for example, lays down the elements of crimes such as theft, fraud and murder.
Adjectival or procedural law, on the other hand, lays down the measures necessary to enforce the substantive law. Criminal law would be ineffective if there were no rules for bringing criminals to trial and stating how trials are to be conducted. The law of criminal procedure supplies those rules.
The rules of criminal procedure cover the structure and powers of the courts and of the prosecution, the rights and disabilities of suspects and accused persons, the powers of the police, pre-trial procedure, detention, bail, charges, the conduct of trials, verdicts, sentencing, appeals and reviews and the exercise of the prerogatives of pardon and mercy.
There is a clear interaction between the rules of criminal procedure and the rules of evidence: failure to comply with procedural rules may render evidence inadmissible. There is also an interaction between rules of criminal procedure and the rules of substantive criminal law. For example, if someone enters another person’s home and searches it, that amounts to an invasion of privacy and an injuria under the common law. But if the search was carried out under a valid search warrant issued under the Criminal Procedure and Evidence Act [Chapter 9:07], then the search is legally justified and the person whose privacy was breached has no right of action.
The rules of criminal procedure are vitally important to society as a whole:
“[Penal law] is the law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to bear on individuals. Its promise as an instrument of safety is matched only by its power to destroy. If penal law is weak or ineffective, basic human interests are in jeopardy. If it is harsh or arbitrary in its impact, it works a gross injustice on those caught within its toils. The law that carries such responsibilities should surely be as rational and just as law can be. Nowhere in the entire legal field is more at stake for the community or for the individual.”
The rules of criminal procedure should not be viewed in isolation. If we are to understand the scope and purpose of the rules we must look at them in their constitutional and socio-political context.
The rules of criminal procedure have been developed through a balancing of values, which are embodied in what are called the Crime Control Model and the Due Process Model. These two models were put forward by an American professor, Herbert L. Packer, in a book The Limits of the Criminal Sanction (1968) Stanford University Press. He put them forward as abstract theoretical models which did not conform to reality (no modern State adopts either of them completely) but which illustrate the opposing values which have to be balanced by a practical criminal justice system.
It is important to remember that he used these two models — crime control and due process — in order to analyse the different values inherent in the legal system of the United States. Hence both his models postulate respect for the U.S. Constitution: the crime control model would acknowledge the right against self-incrimination, for example, but would try to limit that right as far as was legally possible; the due process model, on the other hand, would give the right its broadest effect. He did not envisage the crime control model descending to the levels of crime control in a brutal dictatorship where, for example, accused persons might be tortured into confessing their crimes.
Hence too there is a considerable amount of common ground between his two models. Both models accept that:
- Crimes must be clearly defined.
- When there is reasonable and probable cause for prosecuting a case, then it should generally be prosecuted.Police and prosecutors, in other words, do not have a general “dispensing power” allowing them to absolve criminals of their crimes.
- There must be at least some degree of scrutiny and control over the activities of law enforcement agencies.They cannot be given an entirely free hand.
- Accused persons must have an opportunity to require the State to prove their guilt before an independent court.
The crime control model
The following assertions are the key concerns of the crime control model:
- The repression of criminal conduct is by far the most important function of criminal justice.If law enforcement fails to bring criminal conduct under tight control it will lead to the breakdown of law and order and hence to the disappearance of an important condition of human freedom.Criminal process is a guarantor of social freedom.
- Criminal justice should concentrate on vindicating victims’ rights rather than on protecting the rights of suspects or accused persons.
- Police powers should be expanded to make it easier to investigate, arrest, search, seize, and convict.
- Legal technicalities that hamper the police should be eliminated.
- The criminal justice process should facilitate the rapid progress of criminal cases towards their determination.
- If the police make an arrest and the State brings criminal charges against him, the accused should be presumed guilty because the fact-finding of police and prosecutors is highly reliable.
- The main objective of the criminal justice process should be to discover the truth or to establish the factual guilt of the accused.
The due process model
In contrast, the key values of the due process model may be expressed as follows:
- The most important function of criminal justice should be to provide due process, or fundamental fairness under the law.
- Criminal justice should concentrate on the rights of suspects and accused persons, not victims’ rights, because the Declaration of Rights expressly provides for the protection of the rights of suspects and accused persons.
- Police powers should be limited to prevent official oppression of the individual.
- Constitutional rights are not mere technicalities;the police and other State officers should be held accountable to rules, procedures, and guidelines to ensure fairness and consistency in the justice process.
- The criminal justice process should look like an obstacle course, consisting of a series of impediments that take the form of procedural safeguards serving as much to protect the factually innocent as to convict the factually guilty.
- The conviction of a person of a crime should not be based solely on the evidence;a person should be found guilty only if the State follows legal procedures in the gathering and presentation of that evidence.
Comparison of the two models
As Prof Packer pointed out, neither model has been or should be adopted in its entirety. If the law enforcement authorities were given absolute powers to suppress crime, we should be living in a tyranny; on the other hand, if all the rights of the individual were to be regarded as absolute and inviolable, society would degenerate into anarchy and chaos.
Comparing the two models requires us to make a value judgment. The crime control model reflects conservative values, while the due process model reflects liberal values. The current political climate determines which model shapes criminal justice policy at a specific time. During the politically liberal 1960s, the principles and policies of due process predominated in criminal justice, at least in the West. From the mid 1970s to the present, and particularly after the rise of international terrorism, conservatism has held sway and conservatives have formulated criminal justice policies favouring the crime control model. In Zimbabwe, on the other hand, the enactment of the new constitution, with its emphasis on the rights of suspects and accused persons, may have nudged the balance away from the crime control model and towards the due process model. The balance is never static; it oscillates between the two models as the attitudes of society change.
A fair and effective system of criminal justice must balance the following interests:
- It must allow criminals to be dealt with effectively, but at the same time must recognise that innocent people are often drawn into the system, particularly at the pre-trial stages when the police are conducting investigations.
- The liberty of innocent people must not be sacrificed in the interests of crime control, but it must also be recognised that the more safeguards there are against the infringement of innocent people’s rights the greater the risk of guilty people escaping conviction and punishment.
- Law enforcement authorities must be given powers to combat crime (e.g. they must be given powers to arrest people and to search for and seize property which is involved in crime) but safeguards must be put in place to prevent the abuse of those powers (e.g. there must be rules requiring arrested people to be brought before a court without delay).
- The rights of victims of crime must be taken into account, as well as those of accused persons.
- Whether illegally-obtained evidence should be produced in court involves striking a balance.On the one hand, the evidence may be true, and not to produce it in court may mean that a guilty person goes free.On the other hand, its production in court may violate fundamental values of society and encourage law enforcement authorities to break the law.For example, a confession obtained by torturing a suspect may be true, but to allow it to be produced in court would outrage most people and would encourage the use of torture by the police.
The need for a proper balance between crime control and due process was expressed very eloquently by McNally JA in S v Matare 1993 (2) ZLR 88 (S) at 102:
“The law of criminal procedure in any country is a compromise between two conflicting objectives. The one is to ensure that criminals are brought to justice quickly and effectively. The other is to ensure that innocent people caught up in the criminal process are not wrongly convicted.
Sadly it is not possible to reach perfection. There will always be cases where criminals go unpunished and there will sometimes be cases where innocent people are punished. Procedural law is deliberately slanted to protect accused persons. The horror of punishing one person unjustly for a crime he did not commit outweighs the frustration of seeing ten men go free when they are in fact guilty.
There is another consideration. A police force unrestricted by laws and rules and regulations can easily become a terror squad, whose sole object is to stop crime and produce a suspect who confesses. Good men in the force will be brushed aside. Those who can achieve confessions by torture, ill-treatment and blackmail will rise to the top.
There is an opposite evil. A police force tied hand and foot by regulations becomes frustrated. Corrupt lawyers and clever criminals treat the police with scorn. The result … is not acceptable. The law enforcement agencies become vigilantes, dealing out their own justice. Criminals who cannot be convicted are ‘shot while trying to evade arrest’.
So, if we go too far either way, the result is unacceptable. We have to strike a balance.”
Apart from the crime-control and due-process models, a criminal justice system can be classified by the way in which it regards the rights of victims of crime. A punitive model of victims’ rights emphasises the importance of punishment, and the need for the rights of victims to be considered as well as the rights of the convicted person when assessing punishment. A non-punitive model of victims’ rights stresses crime prevention and restorative justice; it seeks to avoid formal criminal sanctions and resolve disputes arising from criminal conduct by involving offenders, victims and members of the community in trying to restore the position which existed before the crimes were committed. Requiring convicted persons to make restitution to their victims, or to perform community service instead of undergoing a sentence of imprisonment, may be regarded as examples of this. Restorative justice has a particular role to play in rehabilitating youthful criminals and dealing with less serious types of crime.
If a criminal justice system is to keep its legitimacy in the eyes of members of society, it must pay due regard to the rights of victims of crime. It must try to protect victims from being traumatised, not only by the crimes committed against them, but also by the processes of investigating the crimes and prosecuting the offenders. Victim-friendly courts, for example, are a way of protecting vulnerable victims from the strains of giving evidence in criminal trials.
The Declaration of Rights protects most of the fundamental human rights and freedoms that are internationally recognised, but allows limits to be placed on some of them. There must be some limits or qualifications on fundamental rights and freedoms if society is to function at all, because a society whose members had unlimited rights and no obligations could not exist in practice. In the context of criminal procedure, some individual rights must be limited to give law enforcement agencies of the State the powers they need to control crime and prevent disorder. But, as pointed out earlier, the limits cannot go too far.
Section 86 of the constitution therefore allows the rights to be limited:
- All the rights must be exercised reasonably and with due regard to other people’s rights.
- Rights can be limited by a law of general application, to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom. A law cannot, however, limit the following rights:
- The right to life, except to the extent that a law may authorise the death penalty to be imposed for murder committed in aggravating circumstances.
- The right to human dignity.
- The right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment.
- The right not to be placed in slavery or servitude.
- The right to a fair trial.
- The right to obtain an order of habeas corpus to secure the release of an illegally-detained person.
In so far as they relate to criminal procedure, the principal rights and freedoms set out in the Declaration of Rights, and the specific limitations on them, are as follows:
The right to life (section 48)
Everyone has the right to life.
- The death sentence may be imposed, but only in the following circumstances:
- It may be imposed only on men who are between the ages of 21 and 70 and who have been convicted of “murder committed in aggravating circumstances.The term “aggravating circumstances” is not defined and the constitution-makers presumably intended its meaning to be worked out by the High Court and the Supreme Court on a case-by-case basis, in much the same way that the term “extenuating circumstances” under the previous law was developed.
- The court must have a discretion to impose the death penalty, so a law cannot make it a mandatory penalty.
- It may be carried only in accordance with a final judgment of a competent court.What this means is that it cannot be carried out until the sentenced person has exercised his right to appeal against the conviction and sentence under section 70(5) of the Constitution.
- A person who is sentenced to death must have a right to ask the President for a pardon or commutation (i.e. alteration) of the penalty.
- Further restrictions on the death penalty can be inferred from other provisions of the Declaration of Rights:
- The way in which it is carried out must not violate the sentenced person’s inherent human dignity, protected by section 51 of the Constitution.
- The way it is carried out must not amount to torture or to cruel, inhuman or degrading treatment or punishment in contravention of section 53.The old Constitution contained a provision (section 15(4)) to the effect that execution by hanging did not amount to inhuman or degrading punishment, but there is no such provision in the present Constitution.Hence a court could decide that hanging is unconstitutional on the ground that it amounts to torture or to cruel, inhuman or degrading punishment.
- There must not be an excessive delay between the imposition of the sentence and its execution, because that amounts to inhuman or degrading treatment.There is no provision in the present Constitution equivalent to section 15(5) of the previous Constitution, which stated that delay in the execution of a sentence could not be regarded as inhuman or degrading treatment.Section 15(5) was inserted to nullify two judgments of the Supreme Court which held that undue delay could amount to such treatment, and if it did would preclude the execution of the death sentence.In the absence of an equivalent to section 15(5) in the present Constitution, the two judgments are persuasive.
- There is no specific provision equivalent to section 12(2)(b) of the old Constitution, which allowed suspects to be killed in order to stop them escaping arrest.Hence the power of the police to use deadly force in order to effect an arrest must be regarded as severely limited, if it exists at all.And in this regard it must be remembered that under section 86 of the constitution a law cannot limit the right to life.
The right to personal liberty and the rights of arrested and detained persons (secs 49 & 50)
Under section 49 everyone has a right to personal liberty, including the rights not to be detained without trial and not to be deprived of liberty arbitrarily or without just cause.
This right is amplified, in relation to persons who have been arrested and detained, by section 50:
- Anyone who is arrested:
- must be informed at the time of arrest why they are being arrested;
- must be allowed, without delay and at State expense, to contact anyone of their choice, including a lawyer or relative;
- must be allowed, without delay but at their own expense, to consult in private with their lawyer or medical practitioner;
- must be informed promptly of these rights;
- must be treated humanely and with respect for their dignity;
- must be released pending a charge or trial — i.e. they must be granted bail — unless there are compelling reasons justifying their continued detention;
- must be allowed to challenge in court the lawfulness of their arrest.
- Anyone who is detained:
- must be allowed, at their own expense, to consult their lawyer;
- must be allowed to contact and be visited by their lawyer, doctor, priest, relatives and (subject to reasonable security conditions) by anyone else of their choice.
- Anyone who is arrested or detained on a criminal charge must be brought before a court as soon as possible and in any event within 48 hours, and must be released after 48 hours unless their detention has been extended by a competent court.
- At their first court appearance, a person who has been arrested or detained on a criminal charge must be charged or released or, if the court decides they must continue in detention, must be told why they are to be detained.
- Anyone arrested or detained for an alleged crime has the right to remain silent and to be told that they have this right and of the consequences of remaining silent or of speaking.
- A person who has been detained for an alleged crime must be tried within a reasonable time or else released from detention, whether on bail or otherwise (Note that, according to article 9.3 of the International Convention of Civil and Political Rights, “It shall not be the general rule that persons awaiting trial shall be detained in custody”).
An arrest or detention is rendered illegal if the conditions set out in section 50 are not complied with, and the arrested or detained person is entitled to compensation.
It may be noted that some of the rights contained in article 10 of the International Convention on Civil and Political Rights are not enshrined in section 50 of the Constitution. Article 10 reads as follows:
“2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;
(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.”
However, the Prisons Act [Chapter 7.11] requires convicted and unconvicted prisoners, and adults and juveniles, to be segregated from each other.
Right to human dignity (section 51)
Everyone has inherent dignity and the right to have it respected and protected. Recognition of the inherent dignity and worth of each human being is one of the foundational values of the Constitution (section 3(1)(e)) and the right to have it respected infuses the whole Declaration of Rights in the Constitution. In S v Chokuramba CCZ 10-2019, the Chief Justice said:
“human dignity is the source for human rights in general. It is human dignity that makes a person worthy of rights. Human dignity is therefore both the supreme value and a source for the whole complex of human rights enshrined in Chapter 4 of the Constitution.”
The Chief Justice described the nature of human dignity as follows:
“Human dignity is … a special status which attaches to a person for the reason that he or she is a human being. It is the fact of being human that founds human dignity. Human dignity is therefore inherent in every person all the time and regardless of circumstances or status of the person. All human beings are equal, in the sense that each has inherent dignity in equal measure. What this means is that human dignity is innate in a human being. It remains a constant factor and does not change as a person goes through the stages of development in life. … In other words, every human being merits equal respect for his or her inherent dignity regardless of social, economic and political status.”
Freedom from torture or cruel, inhuman or degrading treatment or punishment (section 53)
No one may be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment. The meaning of “torture”, “inhuman treatment” and “degrading treatment” was discussed in the case of Mukoko v Attorney-General 2012 (1) ZLR 321 (S) where it was held that:
“The distinction between the notion of torture and the other two concepts lies principally in the intensity of physical or mental pain and suffering inflicted, in respect of torture, on the victim intentionally and for a specific purpose. Torture is an aggravated and deliberate form of inhuman or degrading treatment. What constitutes torture, or inhuman or degrading treatment, depends on the circumstances of each case. The definition of torture often adopted by courts as a minimum standard is that provided under article 1(1) of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment 1987. In terms of this definition, the torture must be inflicted for the purpose of obtaining information or a confession.”
No limits may be placed on this freedom. The Lancaster House constitution, in section 15, authorised the corporal punishment (i.e. whipping) of male juveniles and the imposition of the death sentence by hanging even if there was a delay between the imposition of the sentence and its execution. The first of these exceptions (whipping of juveniles) has been declared unconstitutional in the case of S v Chokuramba CCZ 10/2019, a decision of the Constitutional Court. It is doubtful if the second exception (delay in imposition of sentence) can be justified under the present Constitution.
Freedom from forced or compulsory labour (section 55)
No one may be made to perform forced or compulsory labour.
The Lancaster House constitution specifically stated that prisoners could be required to perform labour as part of their sentences, and that detainees could be made to clean out their cells and perform similar labour; these exceptions are covered by the general limitation in section 86 of the present constitution.
Equality and non-discrimination (section 56)
Everyone has the right to equal protection and benefit of the law.
We shall deal later with the meaning of “protection of the law”.
Right to privacy (section 57)
The right to privacy includes the right not to have one’s home, premises or property entered without one’s permission and not to have one’s person, home, premises or property searched.
This right is subject to the general limitations contained in section 86 of the constitution.
Freedom of movement (section 66)
Everyone who is legally in Zimbabwe is entitled to move freely within Zimbabwe and to leave Zimbabwe.
Section 86 of the constitution allows reasonable limits to be imposed on this right. Such limits would include restrictions on the movement of prisoners (obviously), as well as the power of courts to restrict the right of suspects and witnesses to leave Zimbabwe.
Right to a fair hearing and rights of accused persons (sections 69 & 70)
Anyone accused of a crime has the right to a fair and public trial within a reasonable time before an independent and impartial court (section 69(1)).
Everyone has a right, at their own expense, to choose and be represented by a lawyer before any court, tribunal or forum (section 69(4)), and accused persons must be informed of this right (section 70(1)(f)).
Section 70 further elaborates the rights of accused persons:
- They must be presumed innocent until proved guilty. Although the degree of proof required to prove guilt is not specified, it has always been assumed that it is proof beyond reasonable doubt. The South African Constitutional Court has held that a similarly-worded provision (sec 35(3)(h)) of that country’s constitution requires proof beyond reasonable doubt.
- They must be told promptly what the charge is against them, in sufficient detail to enable them to prepare their defence, and they must be given adequate time and facilities to prepare their defence. Accused persons cannot simply be dumped in remand prison to await their trial, therefore, without being given reasonable facilities to prepare their defence.
- They have a right to a lawyer paid for by the State if substantial injustice would result from their being unrepresented, and must be told of this right.
- They have a right to be present during their trial.
- They must be allowed to challenge the State’s evidence and to lead evidence to support their case.
- They have a right to remain silent and cannot be compelled to give self-incriminating evidence.
- If they are convicted of a crime, they have the right to have the case reviewed by a higher court or to appeal to a higher court.
These rights can be limited under section 86 of the constitution but the limitations must not go so far as to render the trial unfair, because the right to a fair trial cannot be limited (section 86(3)(e)).
Evidence that has been obtained illegally, i.e. in a way that violates any provision of the Declaration of Rights, must be excluded (i.e. is inadmissible) in any criminal trial if its admission as evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest (section 70(3)).
The right not to be compulsorily deprived of property (section 71)
Property (other than agricultural land) cannot be taken compulsorily except in accordance with a law that ensures due process.
Once again, reasonable limits may be imposed on this right in terms of section 86.
Rights of children (section 81)
Children must be given equal treatment before the law, including the right to be heard, and they are entitled to adequate protection by the courts.
Obviously the extent of a child’s right to be heard will depend on the child’s age and capacity to understand.
Some of the concepts in the Declaration of Rights merit more detailed discussion:
As we have seen, section 69(1) of the Constitution states that accused persons are entitled to “a fair and public trial”, and section 70 goes on to elaborate specific rights that must be accorded to them, such as the right to be presumed innocent, to be given adequate time to prepare their defence, and so on. Clearly, as in the South African constitution, the right to a fair trial embraces more than the specific rights set out in section 70. What does it include?
In, the Constitutional Court (per Ackermann J) said: S v Dzukuda & Ors; S v Tshilo 2000 (4) SA 1078 (CC)
“The right to a fair trial is a comprehensive and integrated right, the content of which will be established, on a case by case basis, as our constitutional jurisprudence develops. [para 9]
“It would be imprudent, even if it were possible, in a particular case concerning the right to a fair trial, to attempt a comprehensive exposition thereof. … At the heart of the right to a fair trial and what infuses its purpose is for justice to be done and also to be seen to be done. But the concept of justice itself is a broad and protean concept. In deciding what, for purposes of this case, lies at the heart of a fair trial in the field of criminal justice, one should bear in mind that dignity, freedom and equality are the foundational values of our constitution. An important aim of the right to a fair trial is to ensure adequately that innocent people are not wrongly convicted, because of the adverse effects which a wrong conviction has on the liberty, and dignity (and possibly other) interests of the accused. There are, however, other elements of the right to a fair trial such as, for example, the presumption of innocence, the right to free legal representation in given circumstances, a trial in public which is not unreasonably delayed, which cannot be explained exclusively on the basis of averting a wrong conviction but which arise primarily from considerations of dignity and equality. [para 11]
“More particularly, in relation to sentencing …, it seems to me that what the right to a fair trial requires, amongst other things, is a procedure which does not prevent any factor which is relevant to the sentencing process and which could have a mitigating effect on the punishment to be imposed from being considered by the sentencing court.” [para 12]
In S v Sonday & Anor 1995 (1) SA 497 (C) at 507C, Thring J said:
“[T]he concept of a ‘fair trial’, including a fair appeal, embraces fairness, not only to the accused or the appellant, as the case may be, but also, in a criminal case, to society as a whole, which usually has a real interest in the outcome of the case.”
The right to a fair trial entails informed participation by the accused, where he is unrepresented. A court must therefore explain all procedural rights and options to an unrepresented accused, and must do so at every critical stage.
The concept of a fair trial includes the right to have a prosecutor who acts, and is perceived to act, without fear, favour or prejudice.
Generally, it is an essential element of a fair trial that accused persons should be treated fairly and in accordance with lawful procedures, not only during the trial itself but from the moment they first come to the attention of the Police or other law enforcement agencies. If lawful procedures are violated at any stage in the process, not only does the accused person have a civil remedy against the Police or the State, but the violation very often affects the validity of subsequent stages. So for example, if the Police extract a confession from an accused person by the use of force or undue influence, the confession will be inadmissible in the subsequent trial; and if there is an irregularity in the course of a trial, it may result in the accused person’s acquittal on appeal.
Section 56(1) states that everyone is entitled to equal protection of the law.
Protection of the law is explained by Linington, Constitutional Law of Zimbabwe para 994:
“In essence, the right to the protection of law means that persons are entitled to have their lawful rights protected. In addition, no one may be proceeded against, either in criminal or civil matters, except to the extent that such proceedings are authorised by law.”
This is a cornerstone of a constitutional State, a State founded on the rule of law. A corollary to the public’s right to the protection of law is that the Police, like everyone else, must obey the law, for it is in society’s interests that the Police should act lawfully and that meaningful control should be exercised over their actions. They must follow proper, lawful procedures when exercising their functions in the control of crime. For example, they are not entitled to arrest or detain persons except when authorised by law to do so; they may not search for and seize property unless the law permits the search and seizure. If police officers breach the law, anyone whose rights have been violated has lawful remedies against them and usually against their employer, the State.
Equal protection of the law goes further, by emphasising that everyone must have the same access to the law and courts, and be treated equally by the law and courts, both in procedures and in the substance of the law. The right to equal protection is akin to the right to due process of law, but in particular applies to equal treatment as an element of fundamental fairness. In American jurisprudence, equal protection of the law
“means that legislation that discriminates must have a rational basis for doing so. And if the legislation affects a fundamental right (such as the right to vote) or involves a suspect classification (such as race), it is unconstitutional unless it can withstand strict scrutiny.”
In other words, laws may discriminate or differentiate between different classes of people but the discrimination or differentiation must be rational. And of course it cannot be unfair because that is prohibited by section 56(3) of the Constitution.
Section 69(1) of the Constitution states that:
“Every person accused of an offence has the right to a fair and public trial …”
This provision, which is also reflected in section 49 of the High Court Act [Chapter 7:06], gives effect to a basic principle, that “the searching light of public opinion provides the most effective safeguard against the danger of an arbitrary and despotic judiciary.”
The exceptions (i.e. the cases when the public may be excluded from a trial) are:
The Courts and Adjudicating Authorities (Publicity Restriction) Act [Chapter 7:04] allows the court to make the following orders, either mero motu or on the application of a party:
- the court may order all persons or a class of persons to be excluded from the proceedings (i.e. that the trial should be held in camera;
- the court may order that the name, address or other information likely to identify anyone concerned or mentioned in the proceedings should not be disclosed publicly, or that information that might reveal a place or locality concerned or mentioned in the proceedings should not be disclosed publicly;
- the court may order that the whole or part of the proceedings should not be publicly disclosed.
These orders may be made only for the following reasons:
- where publicity would prejudice the interests of justice;
- in the interests of public morality;
- in the interests of the welfare of persons under the age of 18;
- to protect the private lives of persons concerned in the proceedings.
These powers should be exercised sparingly. It is inappropriate for them to be used merely in order to spare the accused and his family embarrassment.
A court must make an order listed above whenever it is satisfied that it is necessary or expedient to do so in the interests of defence, public safety, public order or the economic interests of the State.
Where a trial is held in camera, the court should give a full judgment and provide the parties with a copy of it; an edited version of the charge and judgment should be made available to the public as soon as possible.
Under section 4 of the Courts and Adjudicating Authorities (Publicity Restriction) Act [Chapter 7:04], a Minister can issue a certificate stating that it would not be in the public interest to disclose publicly the fact that any proceedings may or will be instituted in any court, or any fact connected with any such future proceedings. The Minister can also issue a notice restricting the transmission of documents from one party to any such proceedings to another such party. The notice may impose conditions restricting the copying of any such document, or the taking of any such document out of Zimbabwe.
The constitutionality of section 4 of the Act is doubtful, since it may jeopardise an accused person’s right to a fair trial by restricting his ability to prepare and present his defence. In so far as the section allows a Minister to issue a certificate prohibiting the public disclosure of evidence given in criminal cases, the section is based on section 18(12) of the old (Lancaster House) Constitution, which expressly provided for such certificates. There is no equivalent provision in the current Constitution.
Normally every trial must take place in the presence of the accused, and he must be present when the witnesses give their evidence. This is a basic principle of the law of criminal procedure. A trial may, however, take place in the accused’s absence in the following circumstances:
- If the accused so conducts himself as to render it impractical to continue the proceedings in his presence.In that event, the court may order him to be removed and may direct the trial to proceed in his absence.The court should do so only as a last resort, however, and before doing so the court should warn the accused of the consequences of his behaviour.If the accused is removed he should be brought back at the end of the State case and asked whether he wishes to lead evidence.
- If the accused has been summoned to appear charged with a crime for which the penalty is a fine, and only in default of payment of the fine may imprisonment be imposed, the accused need not appear personally but may appear through a legal practitioner whom he has authorised to represent him.If there is no legal practitioner available, the accused may appear through anyone else acting as his representative.If in such a case the accused does not appear either personally or through a representative, the court may proceed to hear the case in his absence and may direct the collection of any fine imposed upon him.This procedure, though no doubt very convenient, may be unconstitutional.
Everyone charged with a crime is entitled to defend himself in person or, at his own expense, by a legal practitioner of his own choice. This right is not, however, absolute. As was said in the headnote to S v Paweni & Anor 1984 (2) ZLR 16 (H):
“[T]he accused’s predilection for a particular legal practitioner who happens to be unavailable on the date on which the accused’s case is set down for trial does not mean that the case must be postponed until such time as that particular practitioner is available. The provisions of s 18 simply mean that the accused is entitled to a choice of not having a particular practitioner, whom he does not want, foisted on him. The accused’s desire for particular counsel is only one consideration: there are others, such as the principle that cases should be brought to a conclusion with the minimum of avoidable delay. In this regard, the interests of all parties must be considered, not merely the interests of the accused. Such other factors must be considered as: how much notice of trial has been given; the complexity of the case; and the availability of other competent lawyers.”
But while it may sometimes be appropriate for the court to order a trial to go ahead in the absence of the accused’s legal practitioner, the discretion to do so must be exercised judicially. Where the practitioner’s absence is not due to the fault of the accused, it would be wrong to penalise him. On the other hand, where the accused has had ample opportunity to obtain legal representation and has failed to do so, he cannot subsequently attack the proceedings unless he can furnish an acceptable explanation for his failure.
Under section 70(1)(e) of the Constitution an accused person is entitled to be represented by a lawyer assigned by the State and at State expense “if substantial injustice would otherwise result”, and he must be informed promptly of that right. In the South African case of S v Khanyile & Anor 1988 (3) SA 795 (N) it was pointed out (to quote the headnote):
“It is well established in our law that every person accused of a crime and able to obtain the services of a lawyer has the right to be defended by one. The exercise of that right is vital to the fairness of the proceedings, and the denial of the right therefore makes the ensuing trial per se unfair. There is no real difference between an accused who, because he cannot afford the expense, is unable to obtain the services of a lawyer. The latter’s trial is no less unfair.”
An accused person under the age of 16 who is being tried in a magistrates court may be defended by his natural or legal guardian, who may examine and cross-examine witnesses.
An accused person may be represented at his trial, and have the witnesses examined and cross-examined, by any other person where the court considers that he requires the assistance of that other person and has permitted him to be so assisted.
At the beginning of every trial in a magistrates court, before the accused has pleaded to the charge, the magistrate must inform him of his right to legal representation or to be represented by his guardian (if the accused is a juvenile) or by other persons as above. The accused’s response on being told this must be recorded. There seems to be no similar provision requiring accused to be informed of their right to representation before a trial in the High Court.
Criminal procedure deals with the detection, investigation and prosecution of suspects and accused persons, not of criminals. It is vitally important to remember this distinction. Rules of criminal procedure are for everybody, not just for “criminals”, so the rules must be fair and just to allow everyone to live under them.
Everyone is regarded as innocent until properly convicted by a court of law. This is a fundamental presumption which is entrenched in the Constitution (see above) and in many international conventions. The presumption applies not only to criminal trials, but to all pre-trial stages such as arrest. The word “properly” is important: it connotes compliance with the rules of evidence and criminal procedure. A conviction is an objective and impartial official pronouncement that a person has been proved legally guilty by the prosecution in a properly conducted trial. In a state under the rule of law, only legal guilt counts. If a person is acquitted because a rule of procedure or evidence has not been complied with (e.g. because a confession was not proved to have been made freely and voluntarily), it is wrong to say that the rule has allowed a criminal to go free; it has simply caused a person who was presumed to be innocent from the outset to continue to be presumed (labelled) innocent because the State could not legally prove his guilt.
So it is not entirely true to say that the purpose of criminal investigations, trials and post-trial procedures is to find the truth in order to convict the guilty and acquit the innocent. The discovery of truth is not the highest value. Sometimes evidence that is true will be excluded in order to achieve a higher value. For example, certain evidence may be excluded because it is protected by legal practitioner-and-client privilege, even though it may be relevant and true. The exclusion serves to protect a value that is higher than the discovery of the truth, namely the encouraging of free and open communication between legal practitioners and their clients. Again, confessions that have been extracted by torture or force are excluded even though they may be true: the exclusion protects accused persons, innocent and guilty, against violation of their fundamental right to bodily security.
The prevalence or seriousness of the crime cannot be allowed to displace the presumption of innocence.
To secure a conviction, the prosecution must prove the accused person’s guilt beyond a reasonable doubt. The presumption of innocence ensures that the burden of proof is on the prosecution; an accused person does not have to prove that he is innocent. The prosecution must cover every essential element of the crime with which the accused is charged by presenting admissible evidence in order to prove that the accused is guilty. If even a single element is not proved by the prosecution beyond a reasonable doubt, the accused cannot be convicted. If the prosecution succeeds in proving a prima facie case against the accused and the accused does nothing to disturb it, the prima facie proof may “harden” into proof beyond reasonable doubt, and in that event the accused will be convicted, because there is nothing which produces a reasonable doubt in the court’s mind about the guilt of the accused on each of the elements of the crime. It may be noted here that less evidence will be enough to establish a prima facie case where the facts are peculiarly within the knowledge of the accused person. If, however, the accused can make the court doubt reasonably that his guilt on any one or more of the essential elements of the crime has been proved, he must be acquitted. If there is some evidence before the court which raises a defence to the charge, whether that evidence has been adduced by the accused or the defence, the prosecution must prove beyond a reasonable doubt that the defence does not apply. In other words, the accused does not have to go so far as to establish the defence on a balance of probabilities (unless a statute specifically places the burden of proving the defence on him); all he need do is to lay a basis for the court having to consider the defence.
Proof beyond reasonable doubt is the standard of proof in criminal cases; proof on a balance or preponderance of probabilities is the standard in civil matters. If at the end of a civil case, e.g. an action for damages, the court is in doubt as to whether the plaintiff has proved his case, the court will assess the probabilities, and if the plaintiff’s case seems more probable than the defendant’s the plaintiff will win. That is not so in criminal trials: even if the State’s case is more probable than the version of the facts put forward by the accused, the accused must be acquitted if there is a reasonable possibility (not a probability) that his version may be true. It is not necessary for the court to believe the accused, so long as there is a reasonable possibility that his version is true.
For an accused person to be convicted, the court must be satisfied of his guilt beyond a reasonable doubt. This is so even in cases where, as stated earlier, the prosecution has established a prima facie case and the accused, by refusing to give evidence, does not rebut it. The prima facie case will harden into proof beyond reasonable doubt only if the court, looking at the totality of the evidence, is satisfied beyond a reasonable doubt that the accused person is guilty.
It is impossible to define what is meant by “proof beyond reasonable doubt” because there is no standard for measuring the intensity of human belief. Essentially a common-sense approach has to be adopted. For judges and magistrates the standard of proof is a matter of experience and intuition rather than analysis. A good explanation of the concept was given by Denning J (as he then was) in Miller v Minister of Pensions  2 All ER 372 (KBD) at 373:
“It need not reach certainty, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence ‘of course it’s possible but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
A rather less eloquent explanation was given by a South African judge, Rumpff JA, in S v Glegg 1973 (1) SA 34 (A) at 39A (official translation):
“The concept ‘reasonable doubt’ cannot be precisely defined, but this can be said: that it is a doubt which exists because of probabilities or possibilities which are considered reasonable on the ground of general human experience and knowledge. Proof beyond a reasonable doubt is not equated with proof beyond the slightest doubt, because the onus to render proof at so high a standard would frustrate the administration of the criminal law.”
It has already been noted, however, that one cannot define “proof beyond a reasonable doubt” clearly and comprehensively because what constitutes proof in any particular case depends on the facts and circumstances of that case. As pointed out by Hoffmann & Zeffertt The South African Law of Evidence 4th ed pp 525-6:
“[I]t is easier to sense a doubt than to define one. Trying to define a doubt is rather like trying to translate music into words – an exercise in the fuzzy rhetoric of metaphor. … [A]n elaborate citation of dicta can only churn up a relatively simple concept into a mud of words.”
The prosecution will not have proved the accused person’s guilt beyond a reasonable doubt if, at the conclusion of the evidence, the court thinks there is a reasonable possibility that the accused’s explanation may be substantially true, even if the court considers his explanation is improbable. On the other hand, if the court is “sure” that the accused is guilty, then the prosecution will have proved his guilt beyond a reasonable doubt.
Placing burden of proof on accused persons
Section 70(1)(a) of the Constitution gives every accused person the right to be presumed innocent until proved guilty, but sometimes a statute places the burden of proving a particular fact on the accused person. This is usually done where the fact is particularly within his own knowledge and is easy for him to establish, whereas it would be difficult or impossible for the prosecution to prove. Guidelines were laid down in S v Chogugudza 1996 (1) ZLR 28 (S), as follows:
- A statute cannot validly impose on the accused the burden of proving his innocence or disproving his guilt.
- Any presumption must not place the entire onus on the accused;there is always an onus on the prosecution to bring him within the general framework of an enactment before any onus may be placed on him to prove his defence.
- The presumption may relate to a state of mind, that is an intention, where the element of the crime is a fact exclusively or particularly within the knowledge of the accused.
- A presumption will be regarded as reasonable if it places an onus upon the accused where proof by the prosecution of such a specific fact is impossible or difficult but where the fact is well known by the accused.
- The presumption must not be irrebuttable (i.e. incapable of being disproved).
One example of where the law requires the accused person to prove facts is section 146(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07], which imposes on an accused person the onus of proving an exception, exemption, proviso, excuse or qualification in the description of a crime. What this means is that sometimes statutory provisions contain exceptions under which some people are exempted from the operation of a statutory provision. For example, no one is allowed to possess certain drugs unless he or she has been issued with a licence to possess them. Holders of licences are exempted from the general prohibition against possession of the drugs. In such cases the rule is that incriminating factors must be proved by the prosecution and exculpatory factors by the accused. So in the example given, if a person is charged with possessing drugs the prosecution must proved that the accused possessed the drugs, and it is up to the accused to prove that he held a licence.
In all cases where an onus is imposed on the accused to prove a fact, the most he has to do is to prove the fact on a balance of probabilities; he never has to establish anything beyond a reasonable doubt. If the court can say that the accused’s story is more probable than not, then he has discharged the onus.
The right to remain silent can be described as the absence of a legal obligation to speak. This so-called “right of silence” is not a single right but rather:
“a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute.”
(Per Lord Mustill in the English case of R v Director of Serious Fraud Office, e.p. Smith  AC 1 (HL),  3 All ER 456 (HL)). In that case the learned Judge listed six separate rights or immunities that are covered by the term:
- A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.
- A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.
- A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.
- A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.
- A specific immunity, possessed by persons who have been charged with a crime, from having questions material to the crime addressed to them by police officers or persons in a similar position of authority.
- A specific immunity (at least in certain circumstances …) possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.
The first of these immunities is based on the right to privacy; the others are based on a revulsion against abuses that may arise from inquisitorial criminal proceedings, together with a desire to minimise the risk of a person being convicted through a false extra-judicial confession and concern for the reliability of forced confessions. There is also a perception that it is unfair to put someone in a position where he is exposed to punishment whatever he does (if he speaks he may condemn himself out of his own mouth, and if he remains silent he may be punished for not speaking).
In Zimbabwe an accused cannot be forced to testify at his trial; he has a right to silence, a privilege against self-incrimination. This right is conferred by sections 50(4)(a) of the Constitution [pre-trial silence] and 70(1)(i) of the Constitution [silence during trial]; the right is also enshrined in various international human-rights conventions.
Generally speaking, a suspect cannot be compelled to make a statement to the Police, and any statement he may make must be proved to have been made freely and voluntarily. Suspects are told on arrest that they have the right to remain silent (section 50(4)(b) of the Constitution and section 41A of the Criminal Procedure and Evidence Act [Chapter 9:07]). Hence the fact that a suspect has remained silent when questioned by the Police cannot be held against him, because he is exercising a constitutional right of which he has been informed. No adverse inference, therefore, can be drawn against him because of such silence.
The right to silence arises logically from two basic aspects of our procedure:
- That the accused person is presumed innocent until proved guilty.If he is presumed innocent, then he should not have to do anything to negative any presumption of guilt, since there is no such presumption.
- That our system is based on an adversarial system, in which the State and the accused oppose each other as adversaries, with the judge acting largely as an impartial referee or umpire.The accused should not have to assist the State, his adversary.
If adverse inferences can be drawn from an accused person’s silence, then the right to silence is largely negated.
In the United Kingdom, the 1981 Royal Commission on Criminal Procedure (the Philips Commission) said:
“Any attempt … to use a suspect’s silence as evidence against him seems to run counter to a central element in the accusatorial system of trial. There is an inconsistence of principle in requiring the onus of proof at trial to be upon the prosecution and to be discharged without any assistance from the accused and yet in enabling the prosecution to use the accused’s silence in the face of police questioning under caution as any part of their case against him at trial.”
Under the Criminal Procedure and Evidence Act, however, the right of silence has been substantially eroded:
- Adverse inferences are allowed be drawn from an accused person’s silence:see sections 67, 115, 189, 199 and 257 of the Criminal Procedure and Evidence Act.In particular, section 257 states that if a person who is being questioned by the police fails to mention a fact which is relevant to his defence and which he could reasonably be expected to mention in the circumstances, a court may draw adverse inferences from his failure and treat the failure as evidence corroborating any other evidence given against him.
- If an accused person applies for bail, he must disclose whether or not other charges are pending against him, whether or not he has been granted or refused bail on those charges, and whether or not he has previous convictions (section 117A(5) of the Criminal Procedure and Evidence Act).
- Before evidence is led in a criminal trial, the accused must outline his defence:
- An accused who is indicted for trial in a the High Court is obliged by section 66(6) of the Criminal Procedure and Evidence Act to provide a written outline of his defence, and if he fails to disclose a relevant and material fact adverse inferences may be drawn (section 67(2) of the Act).
- An accused who pleads not guilty in a trial in a magistrates court is obliged by section 188 of the to give an outline of his defence, and if he fails to disclose a relevant and material fact adverse inferences may be drawn (section 189(2) of the Act).
- If an accused declines to give evidence in a trial, he may nevertheless be questioned by the prosecutor and the court in terms of section 198(9) of the Criminal Procedure and Evidence Act, and again, if he fails to disclose a relevant and material fact the court may draw adverse inferences from his failure (section 199(1) of the Act).
- Facts discovered through an inadmissible confession made by the accused are admissible in evidence at his trial, and the prosecution can disclose in evidence that the facts were discovered as a result of information given by the accused (section 258 of the Act).
These provisions erode the right of silence significantly and, to the extent they do, so they are unconstitutional.
Note, however, that even giving full allowance to the accused’s right of silence, if the State has established a prima facie case against him at his trial and he nevertheless elects to remain silent, the prima facie case may harden into sufficient evidence for a conviction. This is not because of his silence but because he has failed to disturb or rebut the case the State has made against him. That case, being uncontroverted, is regarded as proved beyond reasonable doubt.
Many of the decisions that have to be made in the criminal procedure process are required to be reasonable. For example, a police officer is entitled to arrest a person without a warrant if he has “reasonable grounds” to suspect that the person has committed an crime; a search warrant is issued if there are “reasonable grounds” for believing that articles liable to seizure are in the premises to be searched; and force may be used to effect and arrest or a search if it is “reasonably necessary” in the circumstances.
What is meant by “reasonable” in the circumstances? The word is difficult to define; indeed, one judicial dictionary says:
“It would be unreasonable to expect an exact definition of the word ‘reasonable’.”
The Oxford English Dictionary defines the word variously:
“4. Agreeable to reason; not irrational, absurd or ridiculous.
5. Not going beyond the limit assigned by reason …”
What is reasonable in any particular case depends on the circumstances.
The following are the guidelines, in relation to reasonable grounds for suspicion:
- A person can be said to have “reasonable grounds” to believe or suspect something or to believe or suspect that certain action is necessary if:
- he really believes or suspects it;and
- his belief or suspicion is based on certain facts which are known to or perceived by him or about which he has been informed by an apparently reliable person;and
- in the circumstances, and in view of the existence of those facts, any reasonable person would have held the same belief or suspicion.
- There will be grounds for a certain suspicion or belief if the suspicion or belief is reconcilable with the available facts.The existence or otherwise of those facts is objectively determined, so one has to look at the facts as they really are and not as someone may think they are.
- Once a person has established what the facts really are, he will evaluate them and make an inference from them with regard to the existence or otherwise of other facts, which for the time being he is unable to determine.Once he has made that inference, it can be said that he believes or suspects that those other facts exist.
- His belief or suspicion will be reasonable only if it can be said that any reasonable person would have held the same belief or suspicion in the circumstances.The words “any reasonable person” refer to any other person who has more or less the same background knowledge (such as training and experience) as the person who actually holds the belief or suspicion.
- So a person can be said to have “reasonable grounds” to believe or suspect something if he actually believes or suspects it;his belief or suspicion is based on actual facts from which he has drawn an inference regarding the existence of other facts, and if any reasonable person would, in view of those facts, also have drawn the same inference.These are factual questions that will have to be determined with reference to the circumstances of each case.
The law of criminal procedure must strike a balance between the rights of the individual (due process) and the control of crime (crime cannot be eradicated altogether; at most the State can keep it at a tolerable level). Every right or power conferred on the Police (e.g. the power of arrest) is matched by a correlative duty on the part of members of the public to submit to that right or power. There has to be a balance: if the State were given absolute powers to control crime, we would live under a tyranny; if, on the other hand, the rights of individuals were given absolute precedence, the State would be powerless to cope with crime. So there must be a balance. Strictly speaking, the balance is not between the rights of the State and those of the individual, but rather between two competing community interests: the community’s interest in crime control and the community’s interest in fair treatment of its members and in their freedom.
The following are some of the points that should be considered in striking a proper balance:
- Rules of criminal procedure cannot be based on the assumption that they will apply only to criminals;they must allow for the fact that innocent people may be drawn into the criminal procedure process.
- While rules of criminal procedure should not increase the probability that innocent people will be convicted, it must be accepted that the more the system guards against convicting the innocent the greater will be the risk of allowing criminals to go free.It is a miscarriage of justice if an innocent person is convicted, but it is equally a failure of justice if a person who has committed a crime is acquitted.
- If the State were to have absolute powers it would probably be able to control crime to a significant extent, but the result would be a tyranny in which suspects could be tortured to extract confessions and people could be searched, and have their homes entered and searched, at the whim of a government officer.On the other hand, if the rights of the individual were absolute (i.e., if the State could not interfere with them at all) then the State would be unable to prevent crimes being committed.
- Rules of criminal procedure should regulate State power both positively and negatively.Positively, in the sense of giving State officials, e.g. the Police, power to arrest suspects.Negatively, in the sense of limiting the circumstances in which those powers can be exercised.
- While rules of criminal procedure must respect the fundamental rights of suspects, they must also have regard to the victims of crime and the security of law-abiding citizens.
- Should the courts in criminal trials be allowed to consider evidence that has been obtained illegally?Such evidence may be reliable despite the way in which it was obtained, but by admitting it a court may be sending a signal to State officers that unlawful conduct in the course of obtaining evidence is acceptable and that they can violate suspects’ rights in order to obtain it.There is no simple answer to this question, but section 70(3) of the Constitution indicates how it should be answered by stating that illegally obtained evidence must be excluded “if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”This question is dealt with in more detail below under the heading “Effect of unlawful search”.
The balance between crime control and due process is always shifting. In Zimbabwe the emphasis is on control of crime, as it has been for most of the country’s history; individual rights are generally subordinated to the need to control crime. The new constitution, with its emphasis on individual rights, may swing the balance towards due process.
In Zimbabwe we have adopted what is called an adversarial (or accusatorial) system of criminal procedure. In many other countries, particularly France, Germany and other countries on the European continent, there is an inquisitorial system.
Adversarial (or accusatorial) system
In an adversarial or accusatorial system of criminal procedure, the judicial officer’s role is largely that of a detached referee or umpire who presides over a contest between the prosecution and the defence and who does not actively participate in the contest for fear of becoming partial or losing perspective. The police are the primary investigative force and collect evidence to be used in the trial against the accused. They pass the evidence to the prosecution in the form of a file called a police docket, which contains written statements made by prospective witnesses. The prosecutor decides what charges to bring against the accused person and what evidence to lead in order to establish the State case against him, in particular which witnesses to call; because of this, the prosecutor is called “dominus litis” (master of the proceedings). A criminal trial takes the form of a contest between the prosecution and the defence, who in turn call their own witnesses, lead them through their evidence and cross-examine the witnesses called by the other side.
In an inquisitorial system, the presiding judicial officer is much more actively involved in producing and presenting the evidence.
In cases involving serious or complex crimes, an investigating judge or magistrate decides what evidence should be collected, orders searches, and questions the witnesses and the suspect. The investigating judge or magistrate is independent of the Executive, and therefore separate from the prosecutors office; his or her role is that of an investigator not a prosecutor, and he or she supposed to collect all evidence both incriminating and exculpatory. If the investigating judge or magistrate considers there is a valid case against the suspect, the suspect will be sent for trial. The investigating judge or magistrate will prepare a dossier outlining all aspects of the case; this dossier forms the basis of the trial.
At the trial, the presiding judge or magistrate (not normally the same judge or magistrate who collected the evidence) directs the proceedings and dominates the questioning of witnesses and the accused. The judge or magistrate is required to continue the trial until he or she has ascertained the truth.
Main differences between the two systems
The main distinctions between the two systems are:
- Gathering of evidence: In adversarial systems, the responsibility for gathering evidence rests mainly with the parties, i.e. the State and the defence. In inquisitorial systems, on the other hand, the gathering of evidence is overseen by an independent investigating officer (usually a judge or magistrate).
- An adversarial system proceeds on the basis that the best way of avoiding erroneous verdicts of guilt is to allow the defence to test and counter the State’s evidence at the trial, and to give the defence the freedom to decide how to do this.In that sense, it may be said that an adversarial model is based on distrust of the reliability of the State’s evidence.The trial is the exclusive forum for deciding whether there is a reasonable doubt as to the accused’s guilt.In an inquisitorial system, on the other hand, has more faith in the integrity of the pre-trial processes, i.e. in the ability of the investigating judge or magistrate to distinguish between reliable and unreliable evidence, to detect flaws in the prosecution case and to identify evidence that is favourable to the defence case.By the time a case reaches trial there is a greater presumption of guilt.
- The parties — the prosecution and the defence — generally have more discretion in adversarial systems.The prosecution formulates the charge, both parties decide what evidence they are going to produce, the prosecutor can withdraw charges at any time and the accused can decide whether to plead guilty or not guilty.In inquisitorial systems, on the other hand, the discretion is more limited.In some systems, at least in theory, a prosecution must take place in all cases where there is sufficient evidence of guilt, and traditionally there was no such thing as a plea of guilty:regardless of the accused’s wishes the trial proceeded, though sometimes in a more abbreviated form.
- In an adversarial system the parties determine the evidence to be led at the trial while the role of the presiding judicial officer is to ensure that the trial proceeds according to the rules of evidence and criminal procedure, and then to weigh up the evidence to decide whether the prosecution has proved the accused’s guilt beyond a reasonable doubt.In an inquisitorial system, on the other hand, the conduct of the trial is largely in the hands of the presiding judge or magistrate.He or she determines which witnesses are to be called and assumes the dominant role in questioning them.Cross-examination is largely unknown, though the parties are usually entitled to ask questions.
- In an adversarial system there are strict rules determining what evidence may be led at the trial, to prevent the judicial officer being misled or prejudiced.In an inquisitorial system the court is given more information about the case, and the rules of evidence are more flexible.The accused’s criminal history, for example, may be read to the court before the trial begins.
The law of criminal procedure operates as a system or process, step by step from the investigation of a crime, the arrest of a suspect, the trial of the suspect, his conviction and sentence and subsequent appeal. Each stage of the process affects the subsequent stages. For example, if a suspect is coerced into making a confession this will affect the outcome of his trial if the confession is ruled inadmissible in evidence.
Standards of proof vary at different stages of the system, getting more onerous for the State as the case progresses:
- In the pre-trial stages, the general criterion for interfering with individual liberties is reasonable grounds (as to which, see above).So for an arrest to be effected, reasonable grounds for suspicion are normally required.
- At the bail stage, considerations such as the dangers of flight (“abscondment”), tampering with witnesses or committing further crimes are relevant.
- At the end of the State case, the court must decide whether the prosecution has presented a prima facie case to prove each element of the crime;if not, the accused person should be discharged.
- At the end of the trial, the burden of proving the accused person’s guilt beyond a reasonable doubt rests on the prosecution.
The process is one in which many cases fail to reach the end, namely conviction and sentence of a criminal. Thus of the thousands of cases that are reported to the Police, some will be abandoned by the Police without investigation (since they are regarded as spurious complaints); more will be abandoned after investigation has failed to produce adequate evidence; in others the public prosecutor will decline to prosecute; in others, which come to trial, the accused person will be acquitted or will be found to be mentally disordered.
This has policy implications. If there is concern at the unacceptably high crime rate, increased State intervention in the earlier stages of the process will be more effective than changes to the later stages (since more cases will be affected). Hence better detection, more road-blocks and so on will have a greater effect in reducing vehicle theft than merely increasing the punishment of some convicted thieves at the end of the process. Crime prevention or deterrence, in other words, is more effective than increasing the severity of punishment.
If State officials exceed their powers, for example by wrongfully detaining a suspect, there are several remedies open to an aggrieved person:
In section 332.
For example, sections 62A and 258A.
Section 2(1) of the Code.
See the discussion in Burchell & Hunt S. African Criminal Law and Procedure vol 1 (2nd ed) pages 82 ff.
Van den Heever Aquilian Damages in South African Law vol 1 (1944) page 2, cited in Burchell & Hunt, South African Criminal Law and Procedure vol 1 (2nd ed) page 86.
Act 3 of 2009, section 35 of Act 2 of 2017 and section 27 of Act No. 1 of 2019.
Herbert Wechsler, The Challenge of a Model Penal Code, 1952 Harvard Law Review page 1097 at 1098, quoted in Geldenhuys & Joubert Criminal Procedure Handbook 2nd ed p. 3.
What follows is largely based on the discussion in Chapter 1 of Geldenhuys & Joubert Criminal Procedure Handbook 10th ed.
Conferred by the Fifth Amendment of the US Constitution.
Note that the word “necessary” is not included in the equivalent section (section 36) of the South African constitution, though it did appear in that country’s interim constitution of 1994
The meaning of “human dignity” and its importance were discussed by Malaba CJ in S v Chokuramba CCZ-10-2019.
In S v Makwanyane & Anor 1995 (3) SA 391 (CC), the South African Constitutional Court concluded that the death penalty per se amounted to such punishment.
Catholic Commission for Justice & Peace in Zimbabwe v Attorney-General, Zimbabwe, & Ors 1993 (1) ZLR 242 (S) and Woods & Ors v Minister of Justice, Legal and Parliamentary Affairs & Ors 1993 (2) ZLR 443 (S).
Arbitrary is defined in the Concise Oxford Dictionary as “1 based on or derived from uninformed opinion or random choice; capricious. 2 despotic.” In Pharmaceutical Manufacturers Association of S.A.& Anor: in re Ex parte President of R.S.A. & Ors 2000 (2) SA 674 (CC) at para 85, the South African Constitutional Court held: “It is a requirement of the rule of law that the exercise of public power … should not be arbitrary. Decisions must be rationally related to the purpose for which the power was given, otherwise they are in effect arbitrary and inconsistent with this requirement.”
This is more stringent than section 13(4) of the Lancaster House constitution, which required them to be informed “as soon as reasonably practicable”, i.e. after the arrest.
Note that this is more stringent than the South African constitution, which allows bail to be refused “if the interests of justice permit”.
Section 46(1)(b) of the Constitution states that in interpreting the Declaration of Rights courts must promote values and principles underlying a democratic society based on, inter alia, human dignity.
Headnote, at page 323.
Section 86(3) of the constitution.
S v Chogugudza 1996 (1) ZLR 28 (S) at 32E-F.
See S v Boesak 2001 (1) SA 912 (CC) at 920D-E and the cases there cited.
See generally the Irish case of People (AG) v O’Brien  IR 142. Section 258A of the Criminal Procedure and Evidence Act now sets out the considerations that courts must take into account in deciding whether or not to allow illegally-obtained evidence to be produced.
They are also founding values of the Zimbabwean constitution: see section 3.
Geldenhuys & Joubert Criminal Procedure Handbook 10th ed page 283.
Bonugli & Anor v Deputy National DPP & Ors 2010 (2) SACR 134 (T) at 143;  ZAGPHC 28. See also Smyth v Ushekowunze Anor 1997 (2) ZLR 544 (S).
See Chavunduka & Anor v Commissioner of Police & Anor 2000 (1) ZLR 418 (S) at 421H‑422B.
Black’s Law Dictionary, 4th pocket edition (2011).
Lansdown & Campbell S.A. Criminal Law & Procedure vol 5 p. 463.
See section 3 of the Act.
Section 3 of the Courts and Adjudicating Authorities (Publicity Restriction) Act [Chapter 7:04].
R v Miller 1969 (2) RLR 472 (G).
Section 3(3) of the Courts and Adjudicating Authorities (Publicity Restriction) Act [Chapter 7:04].
S v Niesewand (1) 1973 (1) RLR 210 (A).
See further Reid Rowland Criminal Procedure in Zimbabwe p. 15–10.
Section 70(1)(g) of the Constitution and section 194(1) of the Criminal Procedure and Evidence Act
Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p. 97.
Section 194(1) of the Criminal Procedure and Evidence Act.
R v Pauline 1928 TPD 643 at 646, cited in R v Mpofu 1970 (1) RLR 28 (G).
Section 357 of the Criminal Procedure and Evidence Act.
Section 357(2) & (3) of the Criminal Procedure and Evidence Act.
See Reid Rowland Criminal Procedure in Zimbabwe p. 16–26.
Section 70(1)(d) of the Constitution and section 191(a) of the Criminal Procedure and Evidence Act.
Cf S v Nqula 1974 (1) SA 801 (E).
R v Second 1969 (2) RLR 285 (A).
Section 70(1)(f) of the Constitution.
Section 191(b) of the Criminal Procedure and Evidence Act. Note that this provision applies only to trials in magistrates courts.
Section 191(c) of the Criminal Procedure and Evidence Act.
Section 163A of the Criminal Procedure and Evidence Act. The section does not require the accused to be told of his right to legal aid, i.e. to have a legal practitioner assigned to him at State expense, as mandated by section 70(1)(f) of the Constitution.
Article 11(1) of the Universal Declaration of Human Rights: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” Article 14.2 of the International Covenant on Civil and Political Rights: “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.”
S v Coetzee & Ors 1997 (3) SA 527 (CC) at 612E – 613B
Section 18(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Although the Constitution does not state expressly that this is the standard of proof required, it is implied from section 70: See S v Chogogudza 1996 (1) ZLR 28 (S) at 32 E and S v Boesak 2001 (1) SA 912 (CC) at 920D-E and the cases there cited.
Section 18(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Joubert ed Criminal Procedure Handbook 10th ed p. 19.
Union Government (Minister of Railways) v Sykes 1913 AD 156 at 173 and R v Van der Linde & Anor 1933 OPD 5 at 8, cited in S v Mpofu 2012 ZLR 384 (H) at 390-1.
R v Difford 1937 AD 370 at 373.
Section 18(4) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Hoffmann & Zeffertt The S.A. Law of Evidence 4th ed p.498.
Hoffmann & Zeffertt The S.A. Law of Evidence 4th ed p. 525.
Quoted in Hoffmann & Zeffertt The S.A. Law of Evidence 4th ed p. 525. See that textbook, and also Lansdown & Campbell SA Criminal Law & Procedure vol 5 pp 908 – 911.
R v Difford 1937 AD 370 at 373. See also Hoffmann & Zeffertt The S.A. Law of Evidence 4th ed p. 525-6.
See page 11 of these notes.
See Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p. 209.
Section 18(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Reid Rowland, Criminal Procedure in Zimbabwe p. 15-11. See also Ex parte Minister of Justice: In re R v Bolon 1941 AD 345, cited in Hoffmann & Zeffertt The S.A. Law of Evidence 4th ed p. 529.
Currie & de Waal The Bill of Rights Handbook 6th ed p. 758.
For example, article 14.3 (g) of the International Covenant on Civil and Political Rights.
S v Thebus & Anor 2003 (6) SA 505 (CC) at 543C-E.
MacFarlane v Sengweni NO & Anor 1995 (1) ZLR 385 (S) at 389E-G.
R v Stidolph 1965 RLR 552 (A) at 555B, cited in S v Mukungatu 1998 (2) ZLR 244 (S) at 247E-F.
Section 25 of the Criminal Procedure and Evidence Act.
Stroud’s Judicial Dictionary, 4th ed, quoted in Allan v Minister of Home Affairs 1985 (1) ZLR 339 (H) at 343.
This is taken from a discussion paper, “Adversarial and Inquisitorial Systems: A Brief Overview of Key Features”, by the Law Commission of New Zealand.