CAVENDISH UNIVERSITY ZAMBIA

ASSIGNMENT BRIEF AND FEEDBACK FORM

STUDENT NO.: 053 - 029

JANUARY 2020
INTAKE
ONE/TWO YEAR

LECTURER: MR. PUMULO MUNDIA

SUBJECT: CUZL 221- LAW OF EVIDENCE

ASSIGNMENT NO: 01

DATE HANDED OUT: 5TH MARCH, 2021

DATE DUE IN: 26TH MARCH, 2021

ASSIGNMENT BRIEF

ELUCIDATE IN DETAIL WHAT IS MEANT BY COMPETENCE AND

COMPELLABILITY, FURTHER DISCUSS IN DETAIL WHAT THE UNSWORN AND
SWORN EVIDENCE OF BOTH CHILDREN AND ADULTS ENTAILS BEFORE THE
COURT OF LAW.

Tutor’s Mark Contribution

MARKS
(Administration only*

LECTURERS FEEDBACK:

*
z:\kets\memo1
TABLE OF CONTENTS

1. INTRODUCTION………………………………..………………………………….………2
2. COMPETENCE…………………………………..………………………………….……...2
2.1. Types of competency of Witnesses………….………………………………….
………6
2.2. Competency of an Accused Person………….…………………………………….
…....7
2.3. Accomplices………………………………….…………………………………….
…...8
3. COMPELLABILITY………………………….…………………………………………....9
3.1. Who is not compelled to give
evidence? ......................................................................10
4. SWORN AND UNSWORN EVIDENCE…………….………….…………………….....12
4.1. Sworn and Unsworn Evidence for Adults ……….……….…………………..………
12
4.2. Sworn and Unsworn Evidence for Children …………..………………………...
…...14
4.3. Oaths and affirmations………………………………..………………………….……
16
5. CONCLUSION………………………………….………………………………………..19
6. BIBLIOGRAPHY……………………………….……………………………….……….19

Page 1 of 24
 1. INTRODUCTION

Determination of lawsuits highly depends on the availability of evidence. In law, every person is a
competent witness in any judicial proceeding unless otherwise prevented by the law. And every
compellable witness is a competent witness as the court will not compel anyone to give evidence, if
he or she is incompetent to do so.

However, it is not every competent witness that is compellable in the court of law. Competence
does not imply “reliable” thus a witness may be legally speaking of not being able to give evidence
for several reasons. For example, the witness may be a child who is too young that he/she cannot
understand the questions put to him/her or give rational answers to them. Compellability on the
other hand deals with the question of whether as a matter of law, witnesses can be obliged to give
evidence when they do not wish to do so? There are some circumstances in which competent
witnesses cannot be obliged to give evidence against their own will.

Evidence given to courts is divided into; sworn evidence and unsworn evidence. So this essay

therefore aims at analyzing the competency and compellability of a witness to give evidence with
respect to how it affects availability and admissibility of evidence. And further alludes to what the
sworn and unsworn evidence of both children adults entails in the court of law.

2. COMPETENCE

Competence by definition is “the legal fitness or ability of a witness to be heard on the trial of a
cause or to act as a competent (having requisite or adequate ability or qualities) witness in civil
proceedings”.1
1
Sweet and Maxwell “Osborn’s Concise Law Dictionary” (1927), 12th Edition, Micky Woodley, page 101.

Page 2 of 24
 Competence is about whether a witness may legally give evidence, and most witnesses will give
their evidence without any challenges to their competence. In this context, being “competent” does
not mean being reliable or credible, as they are about the weight to be attached to a witness’
evidence rather than their competence to give the evidence.
Evidence must be given by legally competent witnesses. The general rule is that ‘all persons are
competent to give evidence in court’2. The general rule is also that ‘a person who is competent to
give evidence is also compellable’3. There are persons who are not competent or who cannot give
evidence or others whilst competent, are not compellable. These include;
i. Spouse
In criminal cases the general rule is that the accused’s spouse is not a competent and compellable
witness for the prosecution in any criminal proceedings. This can be seen in the cases of R v
Deacon (1973) 2 ALL E R 1145 and Soondo v The People (1981) ZR 302 (SC).

In the case of R v Deacon (1973) 2 ALL E R 1145 the defendant was charged with two counts
related to: (a) the murder of his brother in law; and (b) the attempted murder of his wife. His wife
gave evidence for the prosecution and the defendant was convicted of murder under the first count.
The trail judge then discharged the jury from returning a verdict on the second count.
The court held that as far as the second count was concerned, that is, attempted murder against the
wife under common law, she was a competent witness.

And in the case of Soondo v The People (1981) ZR 302 (SC), the appellant was convicted of stock
theft. The appellant was not found in possession of any part of the stolen and slaughtered animal but
the co-accused with whom he was tried, was so found. Nevertheless, the learned trail magistrate
found that the co-accused had no case to answer and acquitted him. The Supreme Court was
however of the view that the co-accused should have been put on his defence. The appellant
appealed on the basis of an alibi, and on the ground that the learned trail magistrate errored in
admitting the evidence of PW2, who was the wife to the second accused. The state did not support
the connection.

2
Section 8 (a) of the Evidence Act No. 30 of 2011 of the Laws of Zambia.

3
Section 8 (b) of the Evidence Act No. 30 of 2011 of the Laws of Zambia.

Page 3 of 24
The court held that even if the alibi was a deliberate lie on the part of the appellant, the inference
cannot be drawn that he did it because he had been involved in the offence. A man charged with an
offence may well seek to exculpate himself on a dishonest basis even though he was not involved in
the offence. The case of Bwalya v The People (1) followed.
Where two or more persons are jointly indicted, the wife or husband of any such defendant is not a
competent witness against any co-defendant.

ii. Persons of Defective Intellect

Insanity and drunkenness amounting to temporary loss of reason will generally be held to have
destroyed competency.
However, an insane person may be competent during lucid interval, or where insanity relates to one
matter only and he understands an oath, he may be considered capable of giving evidence on other
matters. In the case of R v Hill (1851) 5 Cox C. C. 252 Hill was convicted of second degree murder
for a fatal stabbing. He was sixteen when the incident occurred and testified that he had reacted to
the victim's uninvited homosexual advances. He relied on the defences of provocation and self-
defence. The Court of Appeal ordered a new trial because the trial judge failed to charge the jury
that the objective "ordinary person" standard for the defence of provocation had to take account of
the age and sex of the accused.

The issue was, how is the objective test for the provocation defense to be formulated and to what
extent are characteristics peculiar to the individual accused to be taken into account?

An appeal was allowed and the rationale was that there must be a cut-off point where children
become treated as "reasonable persons", and that they must approach this point incrementally.

In view of the above, it is for the judge to decide whether a witness is incompetent because of
defective intellect. This can be seen in the case of Toohey v Metropolitan Police Commissioner
(1965) A C 595 where the House of Lords held that an accused person should be permitted to
adduce medical evidence as to the hysterical and unstable nature of the alleged victim of an
assault. Lord Pearce commented:
“Human evidence shares the frailties of those who give it. It is subject to many cross-
currents such as partiality, prejudice, self-interest and, above all, imagination and

Page 4 of 24
 inaccuracy. Those are matters with which the jury, helped by cross-examination and
common sense, must do their best. But when a witness through physical (in which I
include mental) disease or abnormality is not capable of giving a true or reliable account
to the jury, it must surely be allowable for medical science to reveal this vital hidden fact
to them. If a witness purported to give evidence of something which he believed that he
had seen at a distance of 50 yards, it must surely be possible to call the evidence of an
oculist to the effect that the witness could not possibly see anything at a greater distance
than 20 yards, or the evidence of a surgeon who had removed a cataract from which the
witness was suffering at the material time and which would have prevented him from
seeing what he thought he saw. So, too, must it be allowable to call medical evidence of
mental illness which makes a witness incapable of giving reliable evidence, whether
through the existence of delusions or otherwise.” 4

iii. Children of tender years

Competence to give evidence does not depend on age but understanding of an oath. There is no
fixed age limit under which an infant is excluded as witness. In England the rule is that a child must
give evidence on oath or not at all. In Zambia the position is governed by section 122 of the
Juvenile Act which permits unsworn evidence of a child to be received but only if the court is
satisfied that:

a. He possesses of sufficient intelligence to justify the reception of his evidence

b. That he understands the duty to speak the truth.

Corroboration is required of unsown testimony.

In the case of Sakala V The People [1972] ZR 150 the evidence of an 11 year old was rejected by
the court because the juvenile was incompetent and therefore not compellable.

For a competent witness to appear before court he/she must be summoned. If he or she is unwilling
to appear he or she will subpoena (order) the witness and the witness has no choice but to attend
4
Toohey v Metropolitan Police Commissioner (1965) A C 608

Page 5 of 24
court in order to avoid being cited for contempt. An accused is privileged to stand as witness to
make a sworn statement, a statement not given on oath or to remain silent. If he remained silent the
Court may draw inferences from all the evidence recorded. Further, if he remains silent he may or
may not call witnesses.

2.1. Types of Competency of Witnesses

The witness' competency is classified into two; general competency and special competency.

i. General Competency
General competency refers to the ability of the witness to testify to facts he or she has observed. In
simplistic terms, it is about telling to the court what one has heard, seen, smelt, touched, etcetera. It
is widely accepted that everybody is presumed to be competent. That is, with the exception,
perhaps, of certain witnesses, general competency is presumed.
For that matter, it would be a waste of court time to conduct an inquiry into the competency of
every witness’ testimony. But from the allegation of opposing counsel that there is reason to
question the competence of the witness, an inquiry into general competence will be made.
Thus, to be included as witness in the general competency, a person must possess the organic and
moral capacities. This is to mean that the test to competency relates to the ability to understand
questions and give rational answers. To put it in another way, competency of a person is determined
by his ability to perceive, remember, communicate and understand the duty to tell the truth.

ii. Special Competency

Special competency refers to a witness’ ability to testify to opinions or conclusions he has arrived at
by evaluating facts he has observed, facts presented to him by counsel or a combination of both
types of facts. That is, special competency refers to the ability to analyze facts about which one
testifies. For example, if you go to Levy Mwanawasa Hospital and you don’t tell your illness to the
doctor, instead, you tell the facts about your illness, then, the doctor analyzes the facts and tells you
what you are suffering from.
Unlike general competency of witnesses, special competency is not presumed. Special competency
of witnesses is subdivided into two: ‘layman’s opinion’, and ‘expert opinion’ given as testimonies.

Page 6 of 24
A Lay witness is a witness with no expertise in the matter concerning which he testifies beyond that
of the judge. This type of witness (one that is not shown to have any special expertise in the subject
matter concerning which he testifies) may testify to opinions based only on facts he has observed,
and may ordinarily venture opinions as to intoxication, age, appearance, general characteristics of
weather, a value of service, conduct of business, etcetera, and leaves the conclusion to the court,
depending on the case and chiefly on the practice. However, the opinion of non-expert witnesses
will not be admissible upon the particular cause thereof and of all subjects where it is neither
practicable nor possible; for they would be vain and unprofitable.
The opinion of expert witness may be required by the court or by either the prosecution or the
defense. To call expert testimony, the subject matter must be so complex that judges should be
assisted in forming proper judgment regarding the fact. Consequently, for an expert to be qualified
as qualified witness he must show special experience. But since this expertise is not present in the
ordinary witness, the expert’s specialized competence must always be shown before he will be
allowed to venture his opinion.
The general rule under competence is that evidence must be given by legally competent person.

What must a person fulfill to be a witness? Ordinarily, competence refers to capacity of a person to
do something. Here, competency of a witness takes to the inquiry as to which persons are capable to
testify or are competent witnesses.
Thus, a competent witness is one who is fit and commonly gives his testimony before courts or a
judicial proceeding under oath or affirmation. And the topic of competency concerns itself with
what witnesses will be permitted to testify at all. A competent witness is one who is able to testify
or one whom nothing prevents from testifying unless there are some conditions which bar him from
doing so.

2.2. Competency of an Accused Person

Under article 18 (7) of the Constitution of Zambia, a person charged with a criminal offence is a
competent witness for defence at every stage in the proceedings but not compellable to give
evidence at his trial whether the person is charged solely or jointly with any other person.

Page 7 of 24
The accused must be informed of his right to give evidence. This is in accordance with the case of
R v Villers (1927) 20 Cr, App. R. 150 where it was held that the accused must be informed of his
right to give evidence. This is a duty of the Court which is according to the Criminal Justice System
of Zambia.

If the Co-defendant gives evidence in the course of a joint trial, then what he says becomes
evidence for all the purposes of the case including the purpose of being evidence against the co-
defendant as per Humphreys in the case of R v Rudd (1948) 32 Cr. App. R. 138 where the Court of
Criminal Appeal called the defendant’s argument to the contrary “astonishing”.

The accused has a right at common law to make an unsworn statement from the dock, without cross
examination. It relates to matters occurring before, during marriage and after judicial separation.
This is in accordance to the case of Moss v Moss (1963) 2 Q B 799 where, it was held that a decree
of judicial separation did not render a spouse competent in a criminal trial where otherwise he or
she would be incompetent.

The exceptions to the general rule include:

a. At common law in a case for treason, or in cases involving violence on the spouse
b. Statutory exception, in cases of bigamy violence on a person under the age of 16 or if it is a
sexual offence committed against a person under the age of 16.

The accused’s spouse is a competent witness for the defence and may be compelled to give
evidence unless he or she is charged with an offence in the proceedings. In R v Boal (1965) 2 Q B
402 it was held that a co-defendant who pleaded guilty was not “charged” within the terms of the
analogous English rule and was therefore a compellable witness for the defence. The co-defendant
was not being charged with an offence actually within the consideration of the jury at the time.5
The spouse of the accused is a competent witness for the defence with the consent of the
accused not compellable to give evidence for a co-accused. The spouse is a competent witness for
the co-accused without consent of the accused in cases covered by Section 15 of the Penal Code and
with bigamy.

5
Queensland Law Reform Commission No. 19

Page 8 of 24
 2.3. Accomplices
An accomplice is “A person who is in any way involved with another in the commission of a crime,
whether as a principal in the first or second degree or as an accessory.”6
The evidence of an accomplice is admissible, but the judge must warn the jury of the danger of
convicting on such evidence unless corroborated, and if this warning is omitted a conviction may be
quashed.7 However, in a situation where one has pleaded guilty and has been convicted already or
acquitted of the relevant charge against him or her or if the proceedings have been discontinued
against him or her, he or she is competent and may be compelled to give evidence for the
prosecution.
This can be seen in the case of Mumba v The People (1984) HC where the court held that section 53
(1) of the Corrupt Practices Act, Chapter 91 of the laws of Zambia, was unconstitutional as it took
away an accused person's constitutional right not to be compelled to give evidence at his or her trial.
The right to remain silent is enshrined in the Zambian Constitution, Act No.18 of 1996, (hereinafter
referred to as the Zambian Constitution) in Article 18 (7). Under this provision, a person who is
tried for a criminal offence shall not be compelled to give evidence at trial.8
There is a similar effect when the prosecution file a “nolle prosequi” in respect of the accused. In
the case of R v Payne (1950) 1 ALL E R 122 the appellant and two others were indicted at quarter
sessions on a charge of housebreaking. On the arraignment on the first day of the sessions the
appellant pleaded guilty while the others pleaded not guilty. A sentence of two years imprisonment
was passed on the appellant at once with the other two men being put back on trial, and on the
following day, having been found guilty, sentenced to twelve months and fifteen months
imprisonment respectively.
It was held that the sentence was reduced to fifteen months imprisonment from the date of
conviction.
The Ratio decidendi of the case was that, ‘where several persons are charged jointly in an
indictment and one pleads guilty and the others not guilty, sentence should not at once be passed at
once on the one who pleads guilty, but should be postponed until after the others have been tried, so

6
Black's Law Dictionary (2004), 8th Edition, page 48.
7
Sweet and Maxwell “Osborn’s Concise Law Dictionary” (1927), 12th Edition, Mick Woodley, page 8.
8
InAdministrative law assigmt 1 cases Flashcards | Quizlet [Accessed on 13th March, 2021]

Page 9 of 24
 that the court, being by that time in possession of the facts relating to all the prisoners, can properly
assess the respective degrees of guilt among them.’9

3. COMPELLIBALITY
Compellability determines whether or not a witness can be legally forced to testify irrespective of
his or her personal wishes. All witnesses competent to give evidence are generally compellable to
do so, just as stated under competence. Though there is an exception in relation to privilege, for
example, the sovereign and legal practitioners. The court may compel a witness to give evidence by
production of a document (subpoena duces tecum) or by testifying before the court of law. This is
in accordance with Sections 143 to 148 of the Criminal Procedure Code Act, Cap 88 of the Laws of
Zambia., and Part VII of the High Court Act under Section 27 (1) which states:

“In any suit or matter, and at any stage thereof, the Court, either of its own motion or on the
application of any party, may summon any person within the jurisdiction to give evidence,
or to produce any document in his possession or power, and may examine such person as a
witness and require him to produce any document in his possession or power, subject to just
exceptions.”

In addition to the above, Part VIII of Subordinate Court Act, Chapter 28 of the Laws of Zambia
under Section 41 states that:
“In any suit or matter, and at any stage thereof, a Subordinate Court, either of its own
motion or on the application of any party, may summon any person within Zambia to attend
to give evidence, or to produce any document in his possession or power, and may examine
such person as a witness, and require him to produce any document in his possession or
power, subject to just exceptions.”

Where a person refuses to take oath and testify when summoned by court, he or she shall be guilty
of contempt of court. This is in line with Section 28 of the High Court Act, Chapter 27 of Laws of
Zambia and Section 150 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia.

9
R V PAYNE (1950) 1 ALL ER 102 – DROIT & LEY ADVOCATES (wordpress.com) [Accessed on 13th March,
2021]

Page 10 of 24
3.1 Who is Not Compelled to give Evidence?
The following are not compelled to give evidence in the courts of law:

1) The President
Under Article 43 of the Constitution Act No.2 of 2016 of the laws of Zambia, a President is a
competent but not compellable witness. This is because of the immunity he enjoys in both his
official and private capacity from criminal proceedings and civil actions brought against him in his
private capacity.

2) Diplomats
Diplomats enjoy extensive immunity from the jurisdiction of the courts. Immunity can be waived
by the sending state. Diplomats are competent but not compellable in all cases.
In the case of Senior V Holdsworth ESP ITN [1976] QB 23 35 Lord Denning said:
“The court should exercise the power only where it is likely that the film (a material that
is .25 mm thick. Anything thinner is foil. The thicker stuff is a sheet 10) will have a direct
and important place in the determination of issues before the court. The mere assertion that
the film may have some bearing will not be enough. If the judge considers that the request
is irrelevant or fishing or speculative or oppressive the judge should refuse it.” 11

3) The accused
A Person who is tried for a criminal offence is compellable to give evidence at his trial. 12 It
therefore follows that an accused person and any other person jointly charged are incompetent
witnesses. However, if the charge is dropped against the co-accused then can be made a witness and
become competent. Where a witness was an accomplice a judge or magistrate must warn himself of
the danger of acting on uncorroborated evidence.

4) The accused’s spouse

Generally the wife of an accused person is not compellable witness of the prosecution. However, at
common law a spouse could be a witness for the prosecution in the following cases:
a. Treason

10
Black’s Law Dictionary, 2nd Edition.
11
Phipson, page 157.
12
Article 18 (7) of the Constitution of Zambia Act No.2 of 2016.

Page 11 of 24
 b. Ill treatment or inhuman conduct of the spouse

c. Assault cases which are extremely serious

d. Committing unnatural offences, for example, sodomy

e. Cases of poison on the spouse

f. Husband living on immoral earning of the wife

In the case of R V Nosel [1974] 1 WLR 894, the wife was charged with forgery of the husband’s
signature on a hire purchase document. The court decided that in such a situation the husband could
testify on behalf of the crown to state clearly that he did not authorize his wife to sign on his behalf.
This meant that the spouse’s consent is required if signatures are to be original or used on hire
purchase documents.

And in the case of Hoskyn V Commissioner of Metropolitan Police [1979] AC 434 the appellant
was charged for wounding a woman with the intention to cause grievous bodily harm. Two days
before the trial they got married, the court ruled that the woman was both competent and
compellable witness for the prosecution especially that the evidence was damaging to the accused.

5) Children of tender years

Competence to give evidence does not depend on age but understanding of an oath. There is no
fixed age limit under which an infant is excluded as witness. In England the rule is that a child must
give evidence on oath or not at all. In Zambia the position is governed by section 122 of the
Juvenile Act which permits unsworn evidence of a child to be received but only if the court is
satisfied that:
a. He possesses sufficient intelligence to justify the reception of his evidence

b. That he understands the duty to speak the truth.

Corroboration is required of unsown testimony. In the case of Sakala V The People [1972] ZR 150
the evidence of an 11 year old was rejected by the court because the juvenile was incompetent and
therefore not compellable.

Page 12 of 24
4. SWORN AND UNSWORN EVIDENCE

4.1. Sworn and Unsworn Evidence of Adults

Evidence given to courts is divided into sworn evidence and unsworn evidence. Sworn evidence is
given when someone takes an oath or makes an affirmation before giving evidence. 13 Unsworn
evidence is on the other hand, evidence that is given without the obligation of an oath first being
taken or an affirmation being made.14

Generally, all adults are competent and compellable to give sworn and unsworn evidence. Except
various individuals with the knowledge of the facts in dispute were formerly completely barred by
the common law from giving testimony or evidence for example, persons who had been convicted
of serious crime, persons who had an interest in the litigation (the persons being talked about in this
context are judges and juries) and those who did not profess the Christian faith, etcetera.
There are a number of situations apart from those stated above provided for under the Evidence Act
of 1995 where a number of persons are not compellable as witnesses to give sworn or unsworn
evidence, these are:

(1) Defendants
A defendant is not compellable to give evidence against a co-defendant.

(2) Family members

A person who is the spouse, de facto partner, parent or child of the defendant may object to being
required to give evidence for the prosecution. The person who makes such an objection must not be
required to give the evidence if the court finds that:15

a. there is a likelihood it would harm the person or their relationship with the defendant; and
b. that harm outweighs the desirability of having the evidence given.

13
Section 4 Evidence Act 1929 (SA)

14
https://.lawhandbook.sa.gov.au/ch13s07s08.php. [Accessed on 18th March, 2021]

15
Competence and Compellability of Witnesses - Go To Court Lawyers. [Accessed on 25th March, 2021]

Page 13 of 24
In determining this, the court must consider the offence for which the defendant is being tried, the
nature of the evidence the person is expected to give and whether any other evidence on the matters
is available. It must also consider the relationship between the person and the defendant and
whether giving evidence would require them to disclose matters told to them in confidence.16

(3) State officials

The following persons, who are adults, under Section 15 of the 1995 Australian Evidence Act are
not compellable to give evidence:17

 The sovereign;
 The governor-general;
 The Governor of a state;
 The Administrator of a Territory;
 The head of state of another country.

Members of parliament are also not compellable to give evidence if doing so would prevent them
from attending a sitting of parliament or a meeting of a committee of parliament.18

(4) Those who are mentally disordered.

People with mental disabilities are dealt with in the same way as children under 14 years of age.
If a court is satisfied that a person with a mental disability can give an intelligible account of
events, then the court can take evidence from the person without the oath. This provision is set
out under the Criminal Evidence Act 1992 and the Children Act 1997 . Few witnesses have been
disqualified to give evidence in court because of mental incapacity. Few counsel would tender such
a witness. If a witness of doubtful mental capacity is called to give evidence in court, the trial judge
has great difficulty in distinguishing between incapacity which affects credibility and incapacity
which entirely excludes the witness. Therefore, it seems preferably to simply let the triers of facts,
properly instructed by the trial judge, take into account any such incapacity in assessing the weight
to be given to the testimony.19

16
Competence and Compellability of Witnesses - Go To Court Lawyers. [Accessed on 25th March, 2021]
17
lbid
18
lbid
19
https://www.lareau-legal.ca. [Accessed on 24th March, 2021]

Page 14 of 24
 4.2. Sworn and Unsworn Evidence for Children.

Children are able to give sworn evidence to a court, if they have a sufficient understanding of the
obligation to be truthful as they are involved in giving such sworn evidence. Even if a child cannot
give sworn evidence that child may be allowed to give unsworn evidence. To give unsworn
evidence a person must have a proper understanding of the difference between the truth and a lie,
understand the importance of telling the truth and say to the Court that they will tell the truth when
they give their evidence.20
Who is a child? The term "child" means a person who has not attained the age of sixteen years.21

In Zambia, it is well established that as a matter of law, the sworn evidence of a child in criminal
cases requires no corroboration but that the court must warn itself that there is a risk in action on
uncorroborated evidence of children. 22

The Juvenile’s Act, Chapter 53 of the laws of Zambia under section 122 (1) requires the evidence of
a child to be corroborated. The section mentioned above reads;
“Where, in any proceedings against any person for any offence or in any civil proceedings,
any child of tender years called as a witness does not, in the opinion of the court, understand
the nature of an oath, his evidence may be received though not on oath, if, in the opinion of
the court, he is possessed of sufficient intelligence to justify the reception of his evidence
and understands the duty of speaking the truth; and his evidence though not given on oath
but otherwise taken and reduced into writing so as to comply with the requirements of any
law in force for the time being, shall be deemed to be a deposition within the meaning of
any law so in force”

The proviso (condition or qualification) attached to the section above states that where evidence
admitted by virtue of this section is given on behalf of the prosecution, the accused shall not be

20
https://.lawhandbook.sa.gov.au/ch13s07s08.php. [Accessed on 18th March, 2021]
21
Section 2(1) of The Juvenile’s Act Chapter 53 of the Laws of Zambia.
22
J. Hatchard, M. Ndulo, “The Law of Evidence in Zambia: Cases and Materials” (1991), Southern African Institute for
Policy and Research.

Page 15 of 24
liable to be convicted of the offence unless that evidence is corroborated by some other material
evidence in support thereof implicating him.23

In application of Section 122 of the Juvenile’s Act, the court determines whether a child is of tender
years by conducting what is known as a voire dire (a preliminary examination of a witness or
witnesses by the judge in the absence of the jury in order to determine collateral matters such as
admissibility of a confession24) which helps the court being satisfied as to whether the child’s
evidence can be received or not. Failure to conduct a proper voire dire results in discounting the
testimony of the child in case a matter is appealed against.

Between 1965 and 1973, a huge volume of convictions in Zambia from lower courts were quashed
on appeal on grounds of defective voire dire. For instance in the case of Goba V The People (1966)
ZR 113, the appellant was convicted of murder of his wife. In convicting the appellant, the trail
court relied greatly on the evidence of a young girl who was the daughter to the appellant and the
deceased. The court of appeal discounted the evidence on the basis that the trial court conducted a
voire dire that was defective when it received such evidence. Similarly, in the case of Sakala V The
People (1972) ZR 35 at 36, the principal witness for the prosecution without whose evidence the
conviction could not stand was an 11 years old boy. The record of the case as regards to voire dire
simply read;
“Juvenile of tender years does not know the oath but knows to tell the truth. Not sworn.
Makes unsworn evidence.”

In quashing the conviction, it was held that with regard to the juvenile of tender years, it is essential
that the trial court also record the questions, answers and the conclusion of the trial court apart from
conducting a voire dire to enable the appellant court to be satisfied that the trial court has carried
out its duties. It was further held by the court in the case of Chibwe V The People that the record
should not only show that a voire dire was conducted but also the actual questions put to the
juvenile, the answers received and the conclusion arrived at by the court.

4.3. Oath and affirmation

23
Directed Research Paper by Paul Chavula, student at The University of Zambia (2008), on page 26.
24
Sweet and Maxwell “Osborn’s Concise Law Dictionary” (1927), 12th Edition, Mick Woodley, page 447.

Page 16 of 24
A witness who is called to testify may give evidence under oath or affirmation. Subject to
exceptions, all oral evidence must be given on oath or solemn affirmation.
If it appears that a witness has a religious belief, he must either be sworn in the usual way, and if he
objects, to affirm.
The manner in which the oath is taken is provided under s.36 (1) of the High Court Act, Chapter 27
of the laws of Zambia which is shown below:

36 (1). Whenever an oath is required to be taken under the provisions of this or any other law, or in
order to comply with any such law, the following provisions shall apply:

(a) The person taking the oath shall hold, if a Christian, a copy of the Gospels of the Four
Evangelists or of the New Testament, or, if a Jew, a copy of the Old Testament, in his
uplifted right hand, or, if he be physically incapable of so doing, he may hold such copy
otherwise, or, if necessary such copy may be held before him by the officer administering
the oath, and shall say or repeat after such officer the words "I swear by Almighty God that .
. ." followed by the words of the oath prescribed by law or by the practice of the court, as
the case may be:

Provided that if any person desires to take the oath in the form and manner in which an oath
is usually administered in Scotland, he shall be permitted to do so.

(b) If the person taking the oath is neither a Christian nor a Jew, he may take the oath in any
manner which he declares to be, or accepts as, binding on his conscience or which is lawful
according to any law, and in particular he may do so by raising his right hand and saying or
repeating after the officer administering the oath the words "I swear by Almighty God
that . . ." followed by the words of the oath prescribed by law or by the practice of the court,
as the case may be:

Provided that if the person taking the oath is physically incapable of raising his right hand,
he may say or repeat the words of the oath without raising his right hand.

Page 17 of 24
 (c) If any person shall express any objection to taking an oath or desires to make an affirmation
in lieu thereof, he may make such affirmation without being further questioned as to the
grounds of such objection or desire, or otherwise, and in such case there shall be substituted
for the words "I swear by Almighty God" aforesaid the words "I do solemnly and sincerely
affirm" and such consequential variations of form as may be necessary shall thereupon be
made.

Oath
A person must be allowed to swear by oath which binds his own conscience, for example, persons
who are Rastafarian. This can be seen in the case of R V Hines and King [1971] 17 WIR 326 where
the appellants Hines and King were tried by jury on an indictment containing three counts charging
them jointly with assault, robbery with aggravation and malicious damage to a motor bus. They
were acquitted of robbery with aggravation but were convicted on the other counts. At the close of
the case for the prosecution the appellant King gave sworn testimony in his own defense and closed
his case. His defense was an alibi.
Thereupon the appellant Hines elected to give evidence on oath in his own defense but declined to
be sworn in the form prescribed by s 3 of the Oath Law, Cap 264 [J], as repealed and re-enacted by
s 2 of the Oaths (Amendment) Law, 1954 (No 43 of 1954) commencing "I swear by Almighty God
that …". He said that his reason for refusing to be so sworn was that he professed the Rastafarian
faith and would only consider himself bound by an oath in the form commencing "I swear by
Almighty God, King Rastafari…" as he and other members of that faith regarded and worshipped
the Emperor of Ethiopia (formerly known as Ras Tafari) as "the true and living God that sits on the
throne of David". Members of that sect hold the belief that the Emperor of Ethiopia is the living
God, the returned Messiah and representative on earth of God the Father.
The trial judge refused to permit Hines to be sworn in a form other than that prescribed by s 3 of the
Oaths Law, Cap 264, stating that as far as he knew an oath taken in the form in which Hines wished
to take it was not lawful. Hines thereupon rested his case. On appeal after conviction it was
submitted that the judge's refusal to permit Hines to be sworn in the form Hines considered to be
binding on his conscience was wrong and resulted in depriving Hines of his right to testify on oath
in his defense to the charges laid in the indictment. On behalf of King it was submitted that in

Page 18 of 24
wrongly depriving Hines of testifying on oath in his own defense, King was deprived of testimony
which might have resulted in his acquittal.

It was held that:

i. the trial judge erred in refusing to permit Hines to be sworn in a form which Hines declared
to be binding on his conscience and in so doing deprived the accused of his right to give
sworn testimony in his defense and his convictions therefore could not stand;
ii. King was not deprived of any legal right to adduce evidence in the course of making his
defense as a result of the trial judge's wrongful refusal to permit Hines to be sworn and
King's convictions were therefore not assailable on that ground. Appeal of Hines allowed.
Appeal of Kings dismissed.

Affirmation
The form and manner in which an affirmation should be taken regulated by Part VII of the High
Court Act. ‘Words such as „I …….do solemnly and sincerely affirm that the evidence I shall give to
the court shall be the truth and nothing but the truth.’25
Oaths are administered by courts, arbitrators or persons empowered to take evidence,
commissioners for oaths, notary public where it is made outside the country.

5. CONCLUSION

The meaning of competence and compellability; who is competent and compelled and who is not to
give evidence; what sworn and unsworn evidence is and what it entails to both children and adults
before the court have been elaborated and from the details above one is able to tell who can and
cannot give sworn and unsworn evidence in court.

6. BIBLIOGRAPHY

BOOKS
Black's Law Dictionary (2004), 8th Edition, page 48.

25
Part VII Section 3691 of the High Court Act Cap 27 of the Laws of Zambia.

Page 19 of 24
J. Hatchard, M. Ndulo, “The Law of Evidence in Zambia: Cases and Materials” (1991), Southern
African Institute for Policy and Research.

Phipson, page 157.

Sweet and Maxwell “Osborn’s Concise Law Dictionary” (1927), 12th Edition, Mick Woodley,
pages 8, 101 and 447.

STATUTES
Constitution of Zambia Act No.2 of 2016 under Articles 18 (7) and 43.

High Court Act Chapter 27 of the Laws of Zambia, Part VII under Sections 28 and 36 (1).

Part VIII of Subordinate Court Act, Cap 28 of the Laws of Zambia under Section 41

The Criminal Procedure Code Act, Chapter 88 of the Laws of Zambia under Section 150.

The Evidence Act 1929 of the South Australian Legislation under Section 4.

The Evidence Act No. 30 of 2011 of the Laws of Zambia under Section 8 (a) (b).

The Australian Evidence Act of 1995.

The Juvenile’s Act Chapter 53 of the Laws of Zambia under Sections 2 (1) and 122 (1).

ARTICLES
Directed Research Paper by Paul Chavula, student at The University of Zambia (2008), on page 26.

Queensland Law Reform Commission No. 19

Page 20 of 24
WEBSITES
Competence and Compellability of Witnesses - Go To Court Lawyers. [Accessed on 25th March, 2021]

https://.lawhandbook.sa.gov.au/ch13s07s08.php. [Accessed on 18th March, 2021]

https://.lawhandbook.sa.gov.au/ch13s07s08.php. [Accessed on 18th March, 2021]

InAdministrative law assigmt 1 cases Flashcards | Quizlet [Accessed on 13th March, 2021]

R V PAYNE (1950) 1 ALL ER 102 – DROIT & LEY ADVOCATES (wordpress.com) [Accessed
on 13th March, 2021]

TABLE OF CASES
Bwalya v The People
Chibwe V The People
DPP V Brandy [1912] 2 KB 39.
Goba V The People (1966) ZR 113
Hoskyn V Commissioner of Metropolitan Police [1979] AC 434.
Leach V R [1912] AC 305.
Moss v Moss (1963) 2 Q B 799
Mumba v The People (1984) HC
R v Boal (1965) 2 Q B 402
R v Deacon (1973) 2 ALL E R 1145
R v Hill (1851) 5 Cox C. C. 252
R V Hines and King [1971] 17 WIR 326
R V Nosel [1974] 1 WLR 894.
R v Payne (1950) 1 ALL E R 122
R v Rudd (1948) 32 Cr. App. R. 138.
R v Villers (1927) 20 Cr, App. R. 150
Sakala V The People (1972) ZR 35 at 36
Senior V Holdsworth ESP ITN [1976] QB 23 35

Page 21 of 24
Soondo v The People (1981) ZR 302 (SC)
The People V Mushaikwa [1913] HCZ
Toohey v Metropolitan Police Commissioner (1965) A C 608.

Page 22 of 24