The admissibility of evidence obtained through human rights violations in Seychelles

• Jurisdiction: South Africa
• Author: Jamil Ddamulira Mujuzi
• Citation: (2019) 32 SACJ 1
• Date: 04 July 2019
• Pages: 1-27
• Published date: 04 July 2019

The admissibility of evidence

obtained through human rights

violations in Seychelles

JAMIL DDAMULIRA MUJUZI*

ABSTRACT

Unlike the Constit utions of South Afr ica, Kenya and Zimbabwe which

expressly provide for circumst ances in which evidence obtai ned through

human rights violations m ay be admitted, the Con stitution of Seychelles

is silent on this issue. However, courts i n Seychelles have had to decide

whether or not to admit evidence obtai ned through human rights violations.

Courts have used both t he constitutional provision on the rights of arreste d

and detained persons a nd the Judges Rules in these cases. In this ar ticle the

author discusses case s in which Seychellois courts have dealt with the issue

of evidence obtained th rough human rights violation s and in violation of

the Judges Rules. Relying on jurispr udence from South Afr ica, Kenya and

Zimbabwe, it is argued that t here may be a need to amend the Constit ution

of Seychelles to include an express provision regu lating the admissibil ity

of evidence obtained th rough human rights violation s. Alternatively, the

Seychelles Court of Appeal would h ave to lay down the criteria that cour ts

should use in determi ning whether to admit evidence obt ained through

human rights violations. T he author also relies on case law from Seychel les

and from some Afric an countries such as Maurit ius, Kenya and Namibia to

highlight the weakne sses of the Judges Rules. These weaknesses bolster the

argument for the need for a constit utional provision on the admis sibility of

evidence obtained th rough human rights violations i n Seychelles.

1 Introduction

Unlike the Constitutions of South Africa,1 Kenya2 and Zimb abwe3

* LLB (Makerere) LLM (Preto ria) LLM (Free State) LLD (Wester n Cape), Professor of

Law, University of the Western Cape.

1 Article 35(5) of the Constitutio n of South Afric a (1996) provides that ‘[e]vidence

obtained in a ma nner that violates any r ight in the Bill of R ights must be excluded

if the admission o f that evidence would render t he trial unfai r or otherwise b e

detrimenta l to the adminis tration of justice’.

2 Article 50(4) of the Constitution o f Kenya (2010) provides that ‘[e]vidence obtained

in a manner that v iolates any right or fund amental freedom i n the Bill of Right s

shall be excluded if the ad mission of that evidence would render the tr ial unfair, or

would otherwise b e detrimental to the admin istration of just ice’.

3 Article 70(3) of the Constitution o f Zimbabwe (2013) provides that ‘[i]n any criminal

trial, evidence t hat has been obtained in a man ner that violates any provision of the

Chapter must be excluded if t he admission of the evid ence would render the tri al

unfair or would othe rwise be detr imental to the ad ministrat ion of justice or the

public interest’.

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(2019) 32 SACJ 1

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which expressly provide for circumstances in which evidence obtai ned

through human rights violations may be admitted, the Constitution of

Seychel les4 is silent on this issue. However, courts in Seychelles have

had to decide whether or not to ad mit evidence5 obtai ned through

human rights violations in the context of the r ight to a fair hearing.

Article 19 of the Constitution of Seychelles provides for the right to a fair

hearing which is made up of the rights to be tr ied within a reasonable

time and before an independent and impartial court,6 to be presumed

innocent until proved guilty,7 to be informed as soon as possible of

the nature of the offence,8 to be given adequate time and facilities

to prepare one’s defence,9 to be defended by a legal practitioner,10

to cross-exa mine prosecut ion witnesses,11 to the assistance of an

interpreter if the person can not understand the language used at the

4 Constitution of the Republic of Seychelle s, 21 June 1993.

5 In Seychelles, there is a difference be tween ‘evidence’ on the one ha nd and

‘information’ on the o ther hand. In In Re: Cen tral Stores Dev elopment Ltd of

Victoria, Mahé v T he Commissioner of Taxe s of Liberty House, Vi ctoria, Mahé (C A

11/2006) [2008] SC SC 33 (27 June 2008) 12-13, the Supreme Cou rt held that ‘…there

is a world of difference bet ween the concept of “judicial evidence” that is acce pted

and acted upon by a Court o f law in the legal proceedi ngs and the “inform ation”

that is received and acte d upon by any investigative agency i n furthera nce of their

statutory dut ies. Obviously, “judicial evidence” is a s pecies, whereas “in formation”

is the genus. Althoug h all “judicial evi dence” emanates from “i nformation”, the

converse is not true as al l “information” may not pass the test of adm issibility rules

and qualif y to become “judicial evid ence”. Indeed, Courts of law us ually have to

nd that certa in facts are proved to exi st, before pronouncing on th e rights, duties

and liabilities of t he parties and t he information, wh ich Courts receive/admi t in

furthera nce of this task, is called “judici al evidence”. This may consist of testimony,

hearsay, documents, th ings and facts. The Cour ts will accept/admit t hem as evidence,

if and only if, that i nformation pass es the test of admis sibility rule s. However, on

the other hand, st atutory authorit ies such as Commis sioner of Taxes, Immigratio n

Ofcers, Police Ofce rs and the like usual ly when carry out investigation they al so

accept or receive “inform ation” from different so urces as they are act ing under a

duty to do so. They compile do cuments or records cont aining that i nformation.

It could be a simple statement of a p erson, hearsay, documents, t hings, inter view

reports signed or u nsigned by the parties etc. Wh atever the source or nature of such

information, wh atever the manner or the me ans in which it was obt ained the fact

remains that t hey all simply constitute “Inform ation”, not “judicial evidence” by a ny

stretch of inter pretation. If such in formation is other wise relevant and adm issible

in accordance with t he rules of evidence, it wi ll be admitted a s judicial evidence

regardless of the m anner it was obtai ned’.

6 Article 19(1). Cases in which th is right has been de alt with include, Bradb urn v

Government of S eychelles (Constit utional Case No 06 of 2 008) [2013] SCCC 1

(26March 2013); Sandapin v Gove rnment of Seychelles (CP 13/2010) [2012] SCCC 6

(13 November 2012).

7 Article 19(2)(a).

8 Article 19(2)(b).

9 Article 19(2)(c).

10 Article 19(2)(d).

11 Article 19(2)(e).

2 SACJ . (2019) 1

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