These are matters that need not be adduced and are precluded by public policy. They are discluded from disclosure by public policy. The person with the information cannot waive the right not to disclose information. You are obliged to insist on none disclosure. The court may on its own volition object to such matters being adduced in evidence.
If a matter is discluded from public disclosure, even matters of secondary evidence cannot be adduced
Section 131. Whenever it is stated on oath (whether by affidavit or otherwise) by a Minister that he has examined the contents of any document forming part of any unpublished official records, the production of which document has been called for in any proceedings, and that he is of the opinion that such production would be prejudicial to the public service, either by reason of the content thereof or of the fact that it belongs to a class which, on grounds of public policy, should be withheld from such production, the document shall not be admissible.”
Privilege as against public policy is personal to whomever it is conferred upon and can therefore be waived. If you have a privilege you could decide to waive it. The information in respect of which you could waive if it comes to the possession of a 3rd party, the 3rd party can disclose the information. Privilege is personal to whom it is conferred. It is not the information that is privileged, it is the person. Communications during marriage are privileged (S. 130) in a situation where two parties are married, they enjoy the privilege. If the husband discloses to the wife that he committed a crime, the wife is privileged but if a wily housemaid overhears the conversation, she can disclose.
Public policy requires that if you are possessed of information, it is not to be disclosed.
Privilege may be broadly divided into two parts; private and official.
Official privilege flows from the official status of a person. It includes the privilege of judges and magistrates, public officers in connection with official information. A Police Officer can claim privilege in court not to disclose his source of information.
Privilege of an accused person against self incrimination, privilege of witnesses, spouses and legal professional privilege. Privilege is granted to the client in an advocate/client relationship.
CATEGORIES OF PRIVILEGE:
1. Privilege of accused persons Article 50 of the Constitution read together with Section 127 (2) of the Evidence Act spell out that an accused person shall not be compelled to testify at his trial.
Where an accused has been compelled to fill a form i.e. in tax matters, could an accused person be compelled to disclose the information.
El Mann V. R  E.A. 357
The accused had been required to answer certain questions for income tax purposes. He had no choice but to fill the questionnaire because failure to do so would have been an offence. The form disclosed certain offences. Counsel for accused objected to use of the information and called to his aid Section 77 of the constitution which enshrines privilege against self incrimination. The matter was taken to constitutional court which ruled that Section 77 was clear and unambiguous. It referred to the accused not testifying at his trial and did not refer to places outside the trial. Filling out the questionnaire was not a trial and therefore not covered under Section 77.
Private privilege of witnesses Section 128.
To the effect that a witness is not privileged from answering questions that will incriminate him/her or expose witnesses to penalties. The privilege is that the answers they give during trial will not be used against them so that there can be free flow of information. The information can only be used on prosecution for perjury.
PRIVATE PRIVILEGE OF SPOUSES S. 130 (1)
No spouse can be compelled to disclose any information made to her/him during marriage. There are however exceptions to this rule.
(i) Cases involving one in the offence of bigamy;
(ii) Where you have offences against morality if one spouse is charged with an offence against morality. If one spouse is charged with an offence against morality privilege does not hold.
(iii) Offence or torts involving persons or property or any child to the marriage. The privilege is to the spouse not on information. If the information comes to a 3rd party, privilege does not arise.
Rumping V. D.P.P.  A.C.
In this case Rumping was a Dutch Seaman charged with murder. He gave a letter to a shipmate to post to his wife outside England. The letter contained a confession to the offence of murder. The letter was turned over to the police and the objection was raised on the admissibility of the letter on the grounds of spousal privilege. The court held that the letter was admissible in evidence because the privilege is inadmissible where the letter has been intercepted by 3rd parties.
Section 1230 (2) in this section ‘marriage’ means a marriage, whether or not monogamous, which is by law binding during the lifetime.
LEGAL PROFESSIONAL PRIVILEGE S. 134 OF EVIDENCE ACT
- The upshot is that an advocate will not disclose communication made to them by their client. Not to disclose documents provided by clients or legal advice given to the client. It is a professional privilege.
Section 134 (1) (a) (b)
There are exceptions to the rule – communication made in furtherance of illegal acts is an exception. If an advocate observes a fact which shows that a crime has occurred, since the commencement of the advocate/client relationship they can disclose that information. The exception delimits the purview of client relationship. The client can expressly consent to disclosure then the advocate can disclose.
Omari s/o Hassan V. R. (1956) 23 E.A.C.A 550
The Appellant was convicted of murder and evidence rested entirely on 2 statements by the deceased that the accused was one of the persons who had attacked him. The trial judge after directing himself that such a statement should be accepted with caution found that there was corroboration in the Appellant’s refusal to testify particularly the accused informed the court that refusal to testify was against his professional advice.
On Appeal it was held that although the judge was entitled to take into account a refusal to give evidence on oath, such refusal to give evidence cannot bolster a weak case of relief the prosecution of the duty to prove its case beyond reasonable doubt. Secondly the disclosure by the advocate that the accused had refused to follow his advice was a breach of professional confidence and the judge should not have allowed it to affect his professional mind.
R V. King (1983) 1 AER 929
Under Section 135 of Evidence Act the legal professional privilege is extended to legal clerks or other servants. Section 136 therefore is a provision for waiver of the privilege and under that section just agreeing to give evidence on the part of the client does not amount to waiver of the privilege but if as a client you call on an advocate or his staff, you will be deemed to have waived your privileges.
Reaffirms the privilege given to the client in Section 134 and makes it clear that the privilege is for the client and not the advocate.
Section 138 – PRIVILEGE OF WITNESS IN CONNECTION OF TITLE DEEDS
A witness not a party to proceedings cannot be compelled to disclose or produce any documents of title relating to his property.
Deals with privileged documents in possession of another – nobody can be compelled to produce documents in his possession which another person will be entitled to produce if they were in his possession.
The person who should legally be in possession of that document could consent to its being availed.
Secretary of State For Defence & Another v. Guardian Newspapers:
British Steel Corporation v. Granda Television Ltd.
Privilege will emanate from a person’s official status vis-à-vis personal status. It is accorded to
- Judicial functionaries – Section 129 – Judges and Magistrates cannot be compelled to disclose except by a higher court which can compel them to disclose any matters which came to their knowledge in their official capacity. They may however be compelled to give evidence in a matter they observed in the course of doing something else.
- Public Officers Section 1232.
Public officers shall not be compelled to disclose communications made to them by any person in the course of their duty if they consider that the public interest will suffer or be prejudiced by the disclosure.
Dhukale v. Universal TOT CO. et al (1974) E.A. 395
Rishen Chand Mohindra V. Mathra Dass
No judge, magistrate or police or revenue officer can be compelled to disclose the name of his/her informants on the commission of an offence. This assists in people giving information freely.
Kapoor Singh s/o Harman Singh V. R
Where the Appellant was convicted over the unlawful possession of gold. Police received information from an informer and when they searched the house, it revealed that he was actually in possession of gold. The accused attempted to obtain the name of the informer during trial but he was overruled.
In Appeal it was held that this is a clear and mandatory section and there was no discretion on the court to compel the policeman to disclose the source of information.
Njunga V. R. (1965) E.A. 773 (K)
The accused was driving a disguised motor vehicle, he was chased and apprehended. It was held that if he Evidence on which the court is relying is damaging….
The police had been informed that under the driver’s seat there were arms and when apprehended, there were actually arms under the seats. The accused was charged with being armed and with the intent to commit a felony. The court did not think that there was enough evidence of intent to commit a felony and that the informer should be brought to testify.
Section 131 delimits parameters of public policy. It outlines procedure to be followed when the state wishes to claim that the documents should not be produced lest they be prejudicial to the state. The Minister must state that he has examined the contents of the documents. He must state that such documents formed part of official public records. That after examining the document that he has formed the opinion that its production would be prejudicial to the public interest either by reason of its contents or because of the class to which it belongs and all these things have to be stated on oath.
You are protecting secrets of the state disclosure of which would affect public policy. The danger has been that the privilege can be abused where government dignitaries proclaim all documents to be prejudicial and this had made courts in England ill disposed and they say that the courts have the duty to make up its mind and decide whether the documents are prejudicial.
Duncan v. Camwell,Laird & Co. Ltd.
Claim for negligence in relation to construction of a submarine
Re Grosvenor Hotel London No. 2
Conway v. Rimmer
It is not all about a minister’s decision but the court can look at the documents to see whether they should be withheld. The judge comes in to vindicate the public in free flow of information.
Section 131 – The minister’s word is final – appears to be final.
Mudavadi v. Semo High Court Election Petition:
Court said that the use of the words ‘shall not’ leaves no discretion to judges to disagree with the minister’s decision.