Is a voluntary confession is always admissible?

The next question that I would like us to address is whether a voluntary confession is always admissible. Is a voluntary confession always admissible? What we have been looking at are sections 26 and 27 is the requirement that a confessionary statement be voluntary. And we have said that the burden of establishing that voluntariness is the prosecution and the court has a duty to inquire into the voluntariness even though that issue does not arise if it looked like there is doubt as to those circumstances. And this is the point that is emphasized in both the case of Onyango Otolito and also Njuguna s/o Kimani. And they are talking about the case being required, especially where you have an accused person being in custody for a long period of time. So then the next question that we are asking is if you have on all fronts satisfied the requirement of section 26 and 27, are you ready then to introduce your statement. The answer is actually No. a voluntary confession is not always admissible. A confession even if voluntary has to conform to some technical rules, and these are established at sections 28 and 29 of the Evidence Act.

Section 28 reads:

“No confession made by any person whilst he is the custody of a police officer shall be proved as against such person, unless it be made in the immediate presence of-
(a)                a magistrate; or
(b)               a police officer of or above the rank of, or a rank equivalent to, inspector.”

Section 28 deals with confession of people made by people in police custody. And it is to the effect that if a person makes a confession while in police custody, it is only admissible if it is made in the immediate presence of certain ranks of officers. And these are firstly a magistrate or a police officer of or above the rank or rank equivalent to sub-inspector or a station inspector. So even though a statement be voluntary, if it has been made in violation of section 28 if it is made by a person in police custody then it is not going to be admitted. It has to have been made in the immediate presence of those two persons.

Section 28 please remember deals with statement made by persons while in police custody.

Section 29 reads:

“No confession made to a police officer shall be proved against a person accused of any offence unless such police officer is-
(a)                of or above the rank equivalent to, inspector; or
(b)               an administrative officer holding first or second class magisterial powers and acting in the capacity of a police officer”

So essentially section 29 deals with statements or confessions taken by police officers by persons who are not under police custody. There is proposals to repeal section 28 but this not yet seen the light of day. If you look at the Criminal Law Amendment Bill, it seeks to repeal section 28, which would then mean that there would be no possibility of there being confessions made by persons in police custody. But right now the law seems there is confusion between confession made by persons in police custody and those made by police not in police custody. And if you look at the administrative officer, that anticipates a situation where you have administrative officers acting as police officers, and this is normally in situations  where you have shortage of police officers, that is the only situation in which that would arise where you are taking a statement and you are vested with the powers of a police officer even though you are not a police officer strictly speaking.

There has been …against the wide powers given to police officers in taking confession. And of course this comes against the backdrop of what was the provision in the Indian Evidence Act. If you will remember when we looked into the history of our law of evidence, we noted that we received our Evidence Act from England through India. And under the Indian Evidence Act as imported into Kenya, confessions made to police officers of whatever rank were not admissible. And actually this whole question of police officer taking confession and those confessions being admissible was an offshoot of the Emergency period, and the issue has been that it is not justified to retain provisions that were made for an Emergency period in independent Kenya. But actually we with the 1963 Kenya Evidence Act, those provisions that were not contained in the Indian Evidence Act which had been brought in for expediency by the colonialist during the Emergency period were put in our Evidence Act and they remain today. And so many people argue that those should be removed. And I think it is because of those arguments against those wide powers that you have proposals that are contained in the Criminal Law Amendment Bill, which seeks to repeal section 28 among others. It also actually seeks to make confessions admissible only when made in court. That is the Criminal Law Amendment Bill. And against I am saying that this in reaction to the kind of sentiments that have been expressed against allowing the police to have so much powers. Because if you hold a person in custody for two weeks and then you go and take a statement from them, there is a time in which they will be vulnerable to may be admitting guilt for whatever reason.

Let us look at what the implications of those two sections (s 28 and 29) are. For instance, who is a police officer? Because that is an issue when you are considering if it is voluntary or not voluntary, and was it made under the technical rules. And the term of police officer, for the purposes of this section, is broadly interpreted to include all persons that are invested with the powers of a police officer by law. So it is not restricted to persons in uniform. If a person is by law empowered to exercise powers that would ordinarily be exercised by a police officer, then they would fall within this category. So you don’t have to wait until you have a person in uniform or a person in the employment of the regular police force for you to decide whether the technical requirement has been adhered to.

It also includes police officers in foreign countries. And the authority for that preposition is the case of Kaluma v R., which we looked at last time, which involved offences committed in both Kenya and Uganda. So the term police officer is not limited to a police officer in Kenya. It includes police officers in foreign countries.

The next case that I would like use to look at in this whole question as to who is a police officer, is the case R v Masola Bin Msembe 1925 TLR 117, which also defines who police officers are. And it is to the effect that if a person is arrested by persons performing the duties of a police officer in a foreign country, then for the purposes of our law those would be police officers. So police officers is not just police officers in your country; it could actually be police officers in a foreign jurisdiction, suffice it that they are performing the duties of a police officer in that foreign jurisdiction.

And you can see here by looking at both section 28 and 29 that the question of rank is seen as important. The reason that you have a delineation of what rank of police officers can take confessions for those to be admissible, whether they are made in custody or not in custody, suggests that rank is important. And in the case of Kenyarithi s/o Mwangi v R. (1956) 23 EACA 111, stresses the importance of rank. In this particular case, statements taken by a police corporal were held to be inadmissible because they did not adhere to the requisite rank.

And again the case of the R v Mwanda and Others Criminal Case no. 100 of 1977, held that rank is a rough and ready measure of intelligence and responsibility. It is assumed that once a certain rank is attain, once an officer attains a certain rank, then you can presume a certain measure of intelligence and responsibility. Is it always he case? It may not always be the case. But as it is, rank is seen as a rough and ready measure of intelligence and responsibility, the assumption being that once an officer attains a particular rank then you can presume some measure of responsibility and intelligence on their part which they will enforce in the taking of confessions. But again as I am saying this may not always be the case. But that is the standard that is used.

If you look at section 28, the provision is that confession made by persons in police custody are only admissible if they are made in the immediate presence of the magistrate and the police officer of the specified rank. And the question has arisen as to, what does these words mean? Do they mean you have to make the statement to the magistrate or the police officer of the specified rank?

And the case of Ngumba and Another v R (1975) EA 223 is to the effect that if the statement is made to any other person it is inadmissible unless the magistrate or the police officer of the specified rank is present. And then this would answer the question that I am asking: it is not relevant to who the confession is addressed. What is important is in the presence of whom. So the magistrate or the police officer of the requisite rank has to be there.

There is the case of Rashidi s/o Sadala v R (1950) 17 EACA 124, where the accused made a confession to a fellow prisoner in remand. And it was in the presence of the Governor of the remand prison. And the question was whether that confession would be admissible. And it was held that it was admissible because even though the Governor was not technically speaking a police officer he could actually fall within the broader definition of who a police officer is.

And on the same point, you should look at the case of the R v Shamshuddin Kassim,(1944) 11 EACA 90, which is to the effect that if a person has duties assigned to them which are akin to those of a police officer, that in itself does not make them a police officer qualified to take the statement. So it is not enough to say that they were performing duties akin to those of a police officer. You have to look at the kind or the level of a police officer that would carry out the duties that are allocated to that person. And again going back to Rashidi s/o Sadala v R  where we said that a person who made a confession to a fellow prisoner in the presence of the Governor of the remand prison, that goes back to the point that I made that the term police officer is broadly interpreted. So here you are looking at the level of the kind of the police officer that the Governor of the remand prison might be.

And that again is to juxtapose that to the case of Shamshuddin where the person was exercising the duties of a police officer but it couldn’t be assumed that just because they were exercising the duties of a police officer they would be of the requisite rank; you have to look at what rank of police officer would do or will perform the duties of a particular person performing.

On the same point, you should look at the cases of Joseph Ndungu Kimani v R (Cr. App. No. 22 of 1979 (CA). That addressed the whole question: What do you mean by immediate presence of? And you should also look at the case of Ishmael Kanyare V R, Cr. App. No. 16 of 1981 (CA), which also addressed the question of what do you mean by immediate presence of a police officer or a magistrate.

The next question is: what is police custody? Is it a jail? Are you talking about only cells? And the interpretation here is that police custody does not refer to the cells alone or to situations where a person is under arrest. It means any state of affairs when one comes into contact with the police and cannot depart at will. So you don’t have to have been physically locked up in the cells or to have been placed under arrest, to have been warned you are now under arrest. It could be a situation where the police officer has called you or has requested you to go and meet them or you have met with them and you know that you could not depart at the point at which you want. That what you are having is not just a friendly chat. They could actually prevent you from leaving at that point. And again you are saying that when you begin to look at what is the police attribute for the purposes of what is admissible and what is not admissible confession in regard to who it is made, you have to know beyond the self. And you have also to look beyond being already informed that you are under arrest. It is a situation where you know even if you wanted to leave you couldn’t leave without there being attendant consequences.

And here you need to look at the case of the R v Sangutet (1939) 18 KLR 169, on the whole question of what is police custody and the whole principle that you have to look at police custody being broadly defined to mean the point at which you come into contact with a police officer and you know you cannot depart at will. So it doesn’t have to be within the cells or you don’t have to have been told now you are arrested. There is an element of actual determination and common sense to determine whether you could actually just walk away without really attendant consequences.

The next question that then arises is: What is the evidential value of statements that are made in police custody? If you make statements in police custody, what is the value of them? And again here, when you are asking about the value of statements made in police custody you are looking at the fact that their voluntariness is going to be an issue. And also, you are also looking at the capacity of abuse of office or abuse of power to get a person to give an incriminating or inculpatory statement is going to be relevant. And by the authority of the case of Kimani s/o Njuguna v R, a statement that is made in police custody is not necessarily inadmissible. It is actually admissible but it has to be scrutinized thoroughly on its voluntariness. A statement made in police custody is not necessarily inadmissible but it has to be scrutinized thoroughly to establish whether it was voluntary or not. And of course in the determination of whether it was voluntary or not, that is going to have a bearing on how probative or how convincingly persuasive that statement is going to be.

Apart from the provisions of sections 28 and 29, we said that first of all you have the substance of the confession, which is section 26 and 27. Then we said over and above that, even though you establish the statement is voluntary, you have then to move on to look at the technical rules and those technical rules tell you who and to whom or in the presence of whom to make statements. But apart from sections 28 and 29, we have other rules, the judges’ rules that have to be adhered to in taking confession. And there are 9 judges’ rules. And basically the fact that you have all these safeguards in admission of confessions just points to the way in which the courts treat confessionary statements. The judges rules are to the effect that:

  1. when a police officer seeks to discover the author of a crime he may put to any person any question pertaining to such crime, whether such a person is a suspect or  not. What this is doing is giving the police officer who is seeking to discover the author of a crime, a wide net. So they are mandated to put any question to any person and such a person may or may not be a suspect.

  1. when a police officer decides to charge a person with a crime, he should caution that person before putting any question to him. So basically you can see the first rule allows the police officer to put any question to any person and that person that they put the question to could be a suspect or not, giving them wide leeway to obtain information. But then while in the process of getting this information putting any question to any person they decide that they are going to charge a person they are required to caution that person before they put further questions to them. So the practice might be, we have been talking, you have been talking to the police officer and then the police officer begins to think that you may be able to help them more than they thought you may be able to help them. And you may actually be the person that they are looking for. If they decided to charge you with the offence, then at that point they will have to caution you before putting any further questions to you.

  1. persons in custody should not be questioned with a caution being administered. So essentially in the first category that the police officer may put any question to any person whether that person is a suspect or not is not applicable to you if you are in police custody. Because you cannot be in police custody just to unwind. So essentially by the time you are in the police cells it is assumed that there is a basis for your having been put in custody. By the time you are in police custody there must be some basis upon which you are linked to the crime and therefore any person that is in custody should not be questioned without the caution being administered because you could not have gone to the police station to just have a friendly chat, to while away time. You must have been there because you were mandated to be there, and if you are mandated to be there then it means there is danger of the way in which statements may be taken from you and therefore it is important that the caution is administered.

  1. If a prisoner wishes to volunteer any statement, the usual caution should be administered with the last words of the caution being “ be given in evidence”. So here again it is anticipated a situation where the police officer may want to put questions to you but you may actually, while in police custody be motivated to give some information. If you are motivated to give information you should still be cautioned and the last word of caution should be given in evidence.

  1. gives the full form of the caution. Remember that we have said at rule 2, rule 3 and rule 4, we have been adverting to a caution being uniform and at rule 5 this caution is given in expenso and it goes as follows: “Do you wish to say anything in answer to the charge. You are not obliged to say anything unless you wish to do so. But whatever you say will be taken down in writing and may be given in evidence”. And here it is actually noted that care should be taken to avoid any suggestions that a person’s answers can only be used in evidence against them. You shouldn’t tell them, you know that what you say could be used in evidence against you. This is why we saying the last words should be “be given in evidence”. And care should be taken to avoid any suggestion that the answers can only be used in evidence against the person because this may actually prevent a person from making a statement given though they would have otherwise made the statement.

  1. addressing the situation where a prisoner gives a statement before the administration of the caution. What happens to a statement given by a prisoner before the administration of a caution. And under rule 6 such a statement is not rendered inadmissible merely because of the lack of a caution. But in such a case a caution should be administered as soon as possible. And right here you can see the potential for abuse. You can begin to talk to a person without a caution and then when you realize they are really telling you interesting things you find that you want to administer the caution and that would mean that even what they have said before the caution would not be necessarily be inadmissible. And of course that goes to show what kind of a scrutiny courts should have of statement that are made as confession. In fact, in most cases confessionary statements will hardly ever get to be the ones that carry the day. It is hardly ever the case that a person is going to be convicted on a confessionary statement, especially where issues arise as to the voluntariness of the averred. First of all the weight is going to be very low. The requirement as a rule of practice that it be corroborated if there has been issues of voluntariness. The reason I am saying this is because you might wonder, why do we have all these rules and basically you might also think that statement is going to be the one that is going to get a person indicted. Hardly ever the case that a confessionary statement—you are going to be looking at other evidence that would be supportive of the confessional statement.

  1. a prisoner making a voluntary statement must not be cross-examined. No question should be put to the prisoner about the statement except for the purpose of removing ambiguity in what he actually said. And of course this is to avoid the persons making the statement from doctoring it. If you begin to cross-examine a person who is making a voluntary statement you could actually get them to say what you want them to say rather say what they wanted to say. That is why rule 7 is saying when a prisoner decided to make a voluntary statement do not cross-examine them, do not put any questions to them  unless you are putting questions to remove ambiguity in what the person actually says.

  1. when two or more persons are charged with the same offence and their statements are taken separately, the police should not read these statements to the other persons charged. But each of such persons should be given by the police a copy of such statements and nothing should be said or done by the police to invite a reply. If a person charged wishes to make a statement in reply the usual caution should be administered. Here again you can see the danger: Let’s say two or more persons are charged with the same offence and their statement are taken separately. If you are now one of the co-accused and the police officer comes carrying this statement and they are reading it to you. They can put intonation where they actually want you to emphasize, the things they would want you to see. For instance, let’s the statement says, oh, I stood on the shoulders of Peter to get into the house and Peter actually stood outside, watching out while I ransacked the house. So the statement is being read to Peter and the police officer introduce the articulation, they could actually use tone or voice to emphasize that this is actually what happened. You can see what kind of manipulative things might happen when you are taking statement. And this why even though you give the person a statement to read, let them read it and let them get from it what they get by reading it themselves and if they do wish to make a reply let them do that uninvited. And even then the usual caution should be administered. Actually they will do it as another statement being taken and that should be taken down in writing. But they have to be cautioned when they are making the reply, that the reply they give will be given in evidence. 

When the statement made in accordance with the judges rules should whenever possible be taken down in writing and should be signed by the person making it after it has been read to him and had been invited to make any corrections he may wish. The Criminal Procedure laws in this country make these rules applicable in Kenya where the law is silent. If the law is silent, this will be admissible or they will be applicable in the taking confessionary statements. And in terms of cases in which the applicability of the judges rules have been discussed, you should look at the following cases:

Ondundo s/o Anyango et all v R [1968] EA 239

Ibrahim v R (1914) AC 609

R v Voisin (1918) 1 KB 531

In this case, the accused was convicted of murdering a woman whose body was found in a parcel together with a piece of paper bearing the handwritten words ‘Bladie Belgiam’.  The accused, without being cautioned, was asked by the police to write down ‘Bloody Belgian’.  He wrote down ‘Bladie Belgiam’ and this writing was admitted in evidence at his trial.  The accused appealed on the grounds inter alia, that he should have been cautioned before being asked to write the words in question.  The appeal failed.  Although the case did not concern an inadmissible confession, the Committee was of the view that, had the words been written in an inadmissible confession, the Committee was of the view that, had the words been written in an inadmissible confession, that part of it should have been admissible, not as evidence of the truth of its contents, but for the purpose of identifying the accused with the offender.

Those cases discuss the applicability of the judge’s rules in our context. And remember we said that they come only when the statutes are silent. And basically the breach of these rules in the taking of a statement, can lead to the statement being ruled as inadmissible and thus excluded as evidence. And the feeling is that these are rules of practice in the taking of confessions, you could not actually say they are legal rules, but they are rules of practice and if you did not abide them that could lead to exclusion of a statement that is taken and this again is in the interests of fairness to the accused person. Why do we have all these rules on how an accused person should make a statement? And basically that should be what one thinks about. If we are going to put in all these safeguards, why not allow for confessionary statements unless those are made in the course of law where you have specific rules on how statements should be taken. And may be that is what wisdom is informing the proposed addition to the Evidence Act via section 25A which defines confessions will be only those taken made in court admitting guilty.

Retracted and repudiated confessions

When a statement made by an accused person is produced at the trial—again information that will be useful to you in addressing the question before you-- the accused may allege that they never made the statement; they could actually say they did not make the statement. They may admit having made the statement. So on the on hand the accused may say they never made the statement. Or secondly they could admit having made the statement, but allege that they only made it because of the inducement, threat or promises emanating from a person in authority. So on the one hand when the confessionary statement is brought to court, the accused person can disown it, say I never made it, it wasn’t me. Or on the other hand he could actually say, yes, I made this statement but explain it away as being occasioned by inducement, threat or promises made by a person in authority. When an accused person denies ever having made a statement, he is said to have repudiated the statement.

On the other hand, where the accused person admits having made the statement but says they only made it as a result of an inducement, threat or promise, the accused is said to have retracted the confession. So disowning the statement is repudiating it, admitting to having made it but explaining it away as having been occasioned by various factors is retraction or retracting their statement.

The case of Tawamai v Uganda (1967) EA 1884 (CA) distinguishes retracted confession from repudiated one. It defines what is what is a repudiated confession and also a retracted one and it goes as follows at page 84: “A retracted confession occurs when the accused person admits that he made the statement recorded but now seeks to recant, to take back what he said, generally on the ground that he has been forced or induced to make the statement. In other words, that the statement was not a voluntary one. On the other hand, a repudiated statement is one which the accused persons avers he never made.” And the judges in that case proceeded to say that in terms of effect there is really not much difference between a repudiated and a retracted confession. In terms of effect whether you repudiate or retract a confession, there is no real distinction. Because the implications are going to be the same, that such statements should be treated with caution and should not be the basis of a conviction unless it has been corroborated in some material particulars.

So essentially what we are saying here if a confession is repudiated or retracted, some corroboration is normally required of it before it can be taken as evidence against the maker. And when this is not a requirement of law, courts have a matter of practice revolved or come up with a rule that if a statement a statement has been retracted or it has been repudiated, before you use it as a basis of conviction you need to have corroboration of that statement in some material particulars.

And to determine whether a repudiated statement or retracted confession should be admitted, what normally happens is that there is going to be a trial within a trial. So the person may say, I never made the statement, that is repudiating it. Or they will say, yes, I made it but it was because as inducement, threat or promises, which is retraction. Once the whole question of repudiation or retraction arises the court is going to hold a trial within a trial.  And the procedure for a trial within a trial is given in the case of Stephen Muriungi and Others v R  HC Cr. Appeal No. 901-904 of 1982 (unreported). The usual pattern is for the defence to raise the issue of repudiation or retraction. And remember we said we are talking about voluntariness. It just has to appear, and also remember the fact that it is incumbent on an accused person if it is every going to be fruitful. So once the issue is raised, the prosecution then calls witnesses to prove that the statement was properly taken and these witnesses can be cross-examined. The accused, for instance, could make an unsworn statement challenging the voluntariness of the statement, or could opt to give a statement on oath. He can call witnesses to attest to the involuntariness. For instance, an accused person could call people that were held in the same cell as themselves or who witnessed some torture or some threat. And then it is up to the judge to decide on whether the statement should  be admitted or not admitted upon listening to both sides. So a trial within a trial is just that. It is just a trial that occurs within the main trial but its main purpose is to establish whether the statement was made or whether it was properly taken. And a trial within a trial happens in both the High Court and the magistrate’s court. So it is restricted to the High Court. In the High Court where there are assessors they are required to leave the court during the trial within a trial. Why do you think that is the case? Where should the assessors leave the court during a trial within a trial. The decision should be decided by the judge but also should the judge decide to throw away the statement, it is going to be difficult for the assessors to not remember what they heard during the trial within a trial. So if the assessors go out during the trial within a trial, if the judge decides that the statement is thrown out that is the last that it will be heard of. But if the judge decides to admit the statement, then the trial within a trial is repeated for the benefit of the assessors. So if the judge rules that the confession is inadmissible, that it was actually not made or it was not properly taken then that statement is thrown out but if it is ruled admissible then the assessors are required to come in and the trial within a trial is repeated to allow the assessors to test the weight of the statement for it could be one of the statements upon which there will be advising.

In what language should a confession be recorded?

An accused person should be allowed to make a confession in a language of his choice. And where the recording officer is familiar with the language that the accused ought to use, he should record it in that language. This is to obviate or to avoid the risk of the accused person claiming to have been misunderstood; or they may even say they were at cross purposes with the recorder of the statement if you take it in another language. This is why they say that you should make the statement in a language of your choice. If the recording officer knows that language they should actually use it to record.

If an interpreter is using the making of a statement both the original statement and the translation must be produced to verify the accuracy of the translation. So essentially here you can also see how the balance tilts in favour of the accused person that where there is a translation the court should have the opportunity to see both the original and the translation. And the case to look at here is the case of Onchau s/o Usigai v R (1966) 73 EAEA 2580, which is authority for the preposition that the interpreter has to be competent, and also a responsible person. And in interpreting care has to be taken to conform to rule 7 of the judge’s rule with respect to cross-examination in asking questions of the person making the statement.

The next provision of the Act that I would like to look at and the next kind of rule pertaining to confessions are covered under section 30. Section 30 reads:

“If a confession made by an accused person is otherwise admissible it does not cease to be so merely because it was made under a promise of secrecy, or in consequence of a deception practised on him for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because was not warned that he was not bound to make such confession and that evidence of it might be given.”

If you listen to the import of section 30, it waters down all the provisions we have been looking at on safeguarding the taking of statements, confessionary statements. It deals with confession obtained by deception, and it is to the effect that if a confession is voluntary within the terms of section 26, and made in the presence of a police officer of the requisite rank or the magistrate as the case may be, it will not cease to be admissible merely because it was made under a promise of secrecy or in consequence of some deception practised on the accused person or because the person was drunk when he made the confession or that they made it in answer to question that they need not have answered, or even because he was not cautioned. So essentially one wonders why you have all those provisions at sections 26, 27, 28, 29 and then you come section 30, which seems to actually go against the grain of the application of all those provisions. And no wonder then that the Criminal Law Amendment Bill proposes to repeal section 30. Do you see what I am saying that it is no use having all those safeguards if at the bottom you are going to have section 30. And in fact, as if section 30 wasn’t bad enough wait till you read section 31, which again will a section that will put you in good stead in dealing with the matter before you, for your assignment. Basically because of this kind of perception, that it is no use having said that if you are going to have section 30, the judges or court have actually ruled that a judge always has discretion to  refuse to admit or to exclude a statement made in the circumstances contemplated at section 30. And the authority for that position is the case of Nayinda s/o Batungwa v R (1969) EALR 688. Again I am saying that this is one of the cases that provides that the judge has the discretion to exclude a statement taken in such circumstances that are contemplated at section 30, and in exercising this discretion the judge will look at the totality of the circumstances surrounding the taking of that statement. So again what the court is saying is even though this provision may seem to water down all the safeguards that we have on the taking of confession, at the end of the day it doesn’t tie the judge’s hand. The judge could actually look at all the circumstances and decide that in the fairness of justice to the accused persons or in the interests of fairness to the accused person and justice they should exclude that statement and actually exclude it. So it will not always be admissible; the judge feels to exclude it. All that section 30 is saying is that those circumstances do not automatically render the statement inadmissible. It could actually be admitted. But having said that the judge has the discretion to disallow it. If looking at the circumstances in the interests of justice and fairness to the accused person, actually considers right to exclude the statement.

Section 31:
“Notwithstanding the provisions of section 26, 28 and 29, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

And we remember we said that under the Criminal Law Amendment Bill section 30 is proposed to be repealed along with section 31.

So essentially section 31 deals with confessions that lead to discovery. It is the effect that whether a confession was voluntary or not taken by a police officer of the prescribed rank or not, if it leads to some discovery then both the fact discovered and that part of the confession that distinctly relates to the discovery are admissible in evidence. And I would like to draw your attention to the question that you have. It just might be a good example:

“On the 28 of February 2003, Syombua, a diligent, conscientious and God-fearing fourth year law student at Parklands Campus was charged at a Nairobi Court with stealing a mobile telephone head-set, to wit, a NOKIA 7210 from Anyango, a fellow student. Syombua was arrested on the night of 13th December 2002 and detained at Parklands Police Station until 16th December 2002. During her confinement at the Station, Syombua recorded a statement with Kimeu, a Police Constable working at Parklands Police Station who also comes from her village in Makueni. She confessed to Police Constable Kimeu that she was a kleptomaniac with a special affinity for NOKIA phones and had even asked their local pastor in Makueni to schedule a deliverance service for her during the 2002 Christmas break. Kimeu recorded Syombua’s statement in English after cautioning her in Kikamba. Syombua was so remorseful that she even promised Constable Kimeu that she would return five NOKIA phones that she had stolen, including Anyango’s NOKIA 7210, to their respectful owners.  Her handbag, which was kept in the safe at the Police Station, yielded five NOKIA phones (among these were: NOKIA 3210, NOKIA 3310; NOKIA 3410; NOKIA 5210 and NOKIA 7210) when brought to her by Constable Kiema at her request. These phones are sought to be produced as exhibits at the trial.”

So essentially here you are talking about a statement taken whether it be voluntary or not and leading to discovery and under section 31, if a confession leads to discovery it doesn’t matter that it was voluntary or not voluntary, made to a police officer of the request rank or not, that part of the statement as distinctly relates to the discovery is going to be admissible. And I am saying again that it is no use having the provisions that we have at sections 26, 27, 28 and 29 to be followed by sections 30 and 31, which seems to actually water down all these things that we are talking about. And actually also water down the essence of the judges’ rules. And you can see the possibility of section 31 being abused by the police officers seeking to procure conviction. They can plant an item at a place and alleged that the accused person led them to it. They can stage a discovery, can’t they? They can plant bangh on you. You know that happens a lot. And it is therefore very important in these circumstances for the judge to ascertain the truthfulness of the discovery, to establish whether the discovery is an actual discovery or it is a staged discovery. And in fact section 31 is also sought to be repealed by the Criminal Law Amendments Bill. And the cases to look at on this particular theme are the cases of

R v Sawe arap Kurugat  (1938) KLR 68
Mwangi s/o Njoroge v R (1954) EACA 377

In the Mwangi case the Court of Appeal was of the view that even under section 31 judges have a discretion to exclude evidence leading to a discovery if they think it is necessary to avoid abuse of the legal provision. The facts of this case were as follows. The accused was surprised in an ambush by two home guards. He shot one of them dead while the other one escaped unhurt. The accused was seen stooping as if hiding something. And he then came to the other guard to surrender. So here you have a situation where somebody is ambushed by two home guards and he shoots one. The other one escapes unhurt. The accused runs off, is seen stooping as if to hide something and then comes back to the surviving home guard to surrender. Asked to show where he had hidden the gun or risk being shot, the guard following him closely with a rifle ready to shoot, the accused stated, "Come, I will show you where I hid the gun.” The gun was discovered. And you can see that here you have this part of the statement: Come, I will show you where I hid the gun.” And then there is the discovery. So if you look at the strict reading of section 31, this ought to have been admitted. The judges were of the view that, much as this statement could strictly be admitted under section 31 they a discretion to exclude it, as it had been procured under the threat of death and therefore a misuse of the law. Because remember we said that the person was followed closely by the home guard with a rifle ready to shoot, and it was as a consequence of that he said, “Comer come and I will show you where hid the gun”. So essentially this is an authority for the preposition that even though technically a statement might be admissible through a strict reading of section 31, judges exercise discretion in dealing with those kinds of statements in the interests of the benefit of the accused and justice. Again the revisit the case of Kenyarithi s/o Mwangi v. R, which you have on your course outline.

Section 32 is a section that we have looked at in the definition of confession. It deals with confessions, which implicate a co-accused. It is to the effect that when two or more people stand a joint trial or a joint defence and one confesses implicating himself and the co-accused, the confession can be taken into consideration not only against the maker but also to the others implicated. So essentially here you have the Evidence Act making the confessions made by a co-accused to actually be used against this person charged with this person. But remember we said that in the definition of confession there is a distinction between the definition at section 25 which would be a definition of a confession where the accused is just talking about their own guilt and the definition of a confession at section 32 where you have a confession that implicates a co-accused. And we pointed out that the standards are going to be higher when you implicate a co-accused, that here the confession that is anticipated at section 32 has to be an express admission of guilt of all the elements of the offence. And remember I tried to rationalize that you are talking about yourself alone you will be careful enough not to not to just give off a statement but when you are talking about yourself and others you may actually be a little more relaxed when you are talking about other people than about yourself alone. And this probably why if you look at the definition of confession at section 32 (2) it is a more strict definition than the one you find at section 25.

In all cases, however, whether it is confession being taken in court or one person alone to court accusing co-accused or the prisoner alone courts exercise a lot of caution and this is actually borne out by the approach that courts have in that section, even under section 30 and 31, they exercise caution in admitting statements especially where you are dealing with confession implicating co-accused. This would be what are called concrete statements and while, I believe under section 141 of the Evidence Act accomplice evidence is admissible and can actually found the basis of a conviction. You will see that when they look through corroboration that the courts have as a matter of practice required corroboration for accomplice evidence because they see as dangerous evidence on which to found conviction. In fact normally the party is going to finish with particular accomplice that you want to testify against another one and then get them to testify because you don’t want them testify against their co-accused hoping that you are going to give them something or exercise mercy towards them or show them favours. You want to finish with their case and then get them to testify so that they have no expectation. But again courts treat accomplice statement with a lot of caution and especially where they are confessionary statements, they would be unsworn statements which again courts treat with even more caution and here again the case of Stephen Muriungi and Others v R would be instructive.


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