S v MUKUNGATU 1998 (2) ZLR 244 (S)

Flynote

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights — s 18(8) — right of accused not to be compelled to give evidence — legislative provisions allowing adverse inferences to be drawn where accused refuses to answer questions put to him — whether such provisions ultra vires the Constitution

Human rights — right of accused not to be compelled to give evidence in criminal case — scope of such right

Headnote

In terms of ss 198(9) and 199(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] where an accused declines to give evidence, the prosecutor and the court can still question him. If the accused refuses to answer any of these questions, he will then be asked why he is refusing. If the court decides that there was no just cause for the refusal, the court may draw such adverse inferences as are proper and, on the basis of such inferences, the court may treat the refusal as evidence corroborating any other evidence given against the accused.

Counsel for the applicant argued that these provisions were ultra vires s 18(8) of the Constitution of Zimbabwe, which provides that no accused person shall be compelled to give evidence at his trial.

Held, that ss 198(9) and 199(1) are not ultra vires s 18(8) as these provisions are saved by s 18(13)(e) of the Constitution. Held, further, that in any event s 18(8) of the Constitution does not prevent the court from drawing an adverse inference against the accused who declines to testify on his own behalf or who, having elected to testify, refuses to answer questions put to him without just cause. The courts have always had this power. Where there is a prima facie case against the accused, the refusal by the accused to testify in his own defence may be sufficient to convert the prima facie case into a proven case.