We have all heard phrases or terms such as “the presumption of innocence”, “innocent until proven guilty”, “having your day in court”, and many other similar phrases. But what are they? What do they really mean? Do they have any actual relevance in an ordinary Zambia’s life? What is their practical consequence?
The presumption of innocence is derived from the ancient Latin maxim “Ei incumbit probation qui dicit, non qui negat” which simply means “the burden of proof is on he who declares, not on he who denies.” Furthermore, to “presume” means to accept something as true. Therefore, at law, the presumption of innocence means that a court will accept or assume that the defendant is innocent until the Prosecution, i.e., he who declares, proves that they are guilty. This is what is known as the “Burden of Proof;” and in criminal matters the burden of proof is beyond all reasonable doubt.
The “presumption of innocence” is a creation by Jean Lemoine, a French Cardinal and Jurist who believed that most people are not criminals. Subsequently, because a person is presumed innocent, jurors must start the process of a trial by presuming that the person charged did not commit the crime and it is the state or government that must prove that it is in fact this person who has committed the crime. The phrase “innocent until proven guilty” was coined in the later 1700s by the English lawyer Sir William Garrow who believed that accusations of criminal conduct should be subjected to vigorous testing in a court of law.
In Zambia, the Presumption of Innocence is enshrined in our Bill of Rights. Article 18 (2) (a) of the Constitution of Zambia provides that “every person who is charged with a criminal offence shall be presumed innocent until he is proved or has pleaded guilty.” Article 18 (2) goes on further to prove for everything else that an accused person shall be accorded, and it includes being informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence charged.
The presumption of innocence is important to remember when we see various incidents that involve the police either using excessive force or even using their weapons and shooting at people who may or may not be suspected of committing a crime. Granted, there are incidents where it is necessary to use force, for example, during a shootout or violent robbery. However, we are seeing incidents where one must question whether the police, who are agents of the government, were acting with that presumption in mind.
Recently, there was an incident where a 27-year-old man from Serenje was shot and seriously wounded by the police after he allegedly disobeyed instructions. He was not a participant in a robbery or any crime but was shot. More recently, two suspected criminals were shot dead in Mandevu after they allegedly attempted to flee from the police who were firing warning shots. There are many other similar events in various parts of the country that either go unnoticed or will be a topic of discussion for a short while before they are forgotten.
According to the presumption of innocence, these persons were innocent; even worse, they were not actually charged with a crime subsequently, we cannot even call them “accused persons.” For them to be killed without any judicial process files in the face of their constitutional right to be presumed innocent until proven guilty.
We see this as well when members from the “Flying Squad” or “C5” go after certain suspected criminals. This paramilitary force can be traced back to as far back as 1983 and while they have been successful in dealing with some dangerous criminals, there have been wide reports of abuses that include beatings, torture, and, in some cases, death. The authorities, however, have maintained that the suspects are “shot while trying to escape” or “shot after a heavy exchange of fire” or even “shot during the firing of warning shots.” While there is no doubt there comes a need for specialised police units to go up against particularly dangerous criminals, it is still necessary that those forces abide by the legislation that forms them which must ultimately be consistent with the Constitution.
A cautionary tale can be taken from the Special Anti-Robbery Squad (SARS) from Nigeria that was created in 1992 to tackle armed robbery and other serious crimes. In the early days, the SARS officers operated undercover in plain clothes and plain vehicles without any security or government insignia and did not carry arms in public. They were successful and facilitated the arrests of many dangerous criminals which resulted in it being spread to all parts of the country and forming part of the Nigerian Police Force Criminal Investigation and Intelligence Department. It had a wide mandate that included investigations, arrests, and prosecution of suspected armed robbers, murderers, and other dangerous criminals. Emboldened by its new powers, the unit diverted from its original function and has been implicated in widespread human rights abuses, extrajudicial killings, torture, arbitrary arrests, unlawful detentions, and extortion. Amnesty International, in 2016, documented its own visit to one of the SARS detention centres and found over one hundred detainees living in overcrowded cells and being regularly subjected to methods of torture that included mock executions, beatings, starvation, shootings, and hangings. This eventually resulted in nationwide protests.
What Zambians can learn from this is the importance of protecting and defending the rights of all persons, even those suspected or accused of a crime, to ensure that our state actors, as well as private citizens, abide by the rule of law. The rule of law implies that every person is subject to the law, including persons who are lawmakers, law enforcement officials, and judges. In addition, the presumption of innocence is a fundamental right and ought to be upheld at all times, including during the process of conducting investigations.