Unpacking the constitutional right to silence in Zimbabwe
OUR national Constitution confers the right to silence to an arrested, detained and accused person. Section 50 subsection (4) of the Constitution provides that a person arrested or detained has the right to remain silent and to be informed promptly of their right to remain silent.
An adjunct to this provision is section 70(1)(i) which states that accused persons have the right to “remain silent and not to testify or be compelled to give self-incriminating evidence”.
A quintessential analogy of the right is “pleading the fifth” which is a colloquial term often used to invoke the anti-self-incrimination clause when witnesses decline to answer questions where the answers might incriminate them in terms of Amendment Five of the Constitution of the United States of America.
In simple terms, the right entails that when an accused is being questioned by the police, or if at their trial they refuse to outline their defence or give evidence, adverse inferences — that is inferences that they are guilty — cannot be drawn from their silence because they are exercising their constitutional right.
The reasoning behind this
is a need to keep State officials in line, to limit police power and to ensure the prosecutorial burden remains firmly fixed upon the State’s shoulders.
In Zimbabwe it is accepted that this right can be restricted in applicable circumstances.
The right to remain silent does not mean there are no consequences attached to a person’s choice to remain silent during trial.
The court may make a detrimental deduction or conclusion from a person’s silence where the State has made out a case beyond reasonable doubt and the accused still decides to remain silent and to not give any further testimony.
This is the difference between the pre-trail silence and the right to remain silent during a trial.
Where the State has managed to prove during trial proceedings a strong case beyond any reasonable doubt against the accused person, the accused should put up a defence or risk being convicted.
The prima facie case hardens into sufficient evidence for a conviction not because of a person’s silence but because he has failed to rebut the case the State has made against him.
That case, being uncontroverted, is regarded as proved beyond reasonable doubt.
Criminal Procedure and Evidence Act Chapter 9:07 is the legislative instrument which gives effect or flesh to the right to silence as enshrined in the Constitution.
However the main challenge is that the Criminal Procedure and Evidence Amendment Act of 2016 did not address or repeal some provisions in the Act which trample on the right to pretrial; to point out a few:
a) Section 257 of the CP and E Act provides that if suspects refuse to answer questions put to them by the police, adverse inferences can be drawn from the refusal.
b) Sections 67(2) and 189 (2) of the CP and E Act provides that before evidence is led in a criminal trial, accused persons must outline their defence; if they fail to do so, adverse inferences can be drawn from the failure.
It is submitted that the above highlighted provisions or sections are inconsistent with the constitutional provisions guaranteeing the right to silence.
The Amendment Act of 2016 should have repealed these retrogressive provisions and the need to realign the Act to meet the constitutional benchmark on the right to silence still lingers.