COMPELLABILITY OF WITNESSES

Compellability means whether a particular witness can be subjected to the compulsory process of court to induce him to testify.

General rule: All ordinary witnesses are compellable to testify on matters asked of them during proceedings. S.131 Evidence Act- A witness shall not be excused from answering any questions as to any matter relevant to matter in issue in any suit or civil/ criminal proceeding upon the ground that the answer to such question will incriminate or may tend directly/ indirectly to incriminate such witness or that it will expose such witness to a penalty or forfeiture of any kind or that it may establish or tend to establish that he owes a debt or is otherwise subject to a civil suit.

There are, however, special categories of persons who are not compellable, e.g. an accused (with a constitutional right to silence). However, the exception is under s.131 where the accused gives sworn evidence, the accused is compellable to answer questions.

Swearing means taking an oath to tell the truth therefore you cannot be heard not to answer a question asked. What happens when a witness gives evidence different from what was in his statement to the Police? How about those who refuse to give evidence in court yet they have been called as witnesses? Such people may be charged with contempt of court for 7 days until they give evidence before court. (Refractory witnesses).

A hostile witness is a witness on the accused’s side but when giving evidence, starts giving evidence against the accused and in favour of the prosecution. How do you deal with such a witness? You may apply to court to declare such a witness hostile. You then have a right to ask court to allow you to cross examine your witness in this manner:

a) Examination-in-chief

You encourage the witness to tell their story, during which you treat them very calmly and gently to speak without fear or intimidation. At this point if you find him hostile, you may indulge court to declare him as such.

b) Cross examination

This is done by the other side, to destroy or impeach the credit of the witness by showing that their evidence should be taken with less weight and that it should not be believed. Once court rules that he is unreliable, no side can use him. If this step of cross examination is skipped, court will still consider the evidence adduced.

c) Re-examination

During this time, whatever else a witness has to say is heard although the court has the final say. The party who called the witness tries to repair the damage that was caused during examination in chief and cross examination. At this point new evidence cannot be introduced unless it is to clear any damage that had been caused at those previous stages.

If it is found that the witness told lies, such witness may be prosecuted for perjury. See s.131 Evidence Act.

Exceptions to the general rule as to the compellability of witnesses

Most of these are based on the privileges granted by law, e.g. public privilege, professional privilege and private privilege. These privileges are based on public policy, i.e. a spouse cannot testify against another his/ her spouse due to the desire to protect the marriage institution. A witness may be competent but not compellable.

Private privilege

This is the privilege or immunity enjoyed by private persons as a result of their personal status, e.g. husband and wife. See s.120. The communication between spouses during the subsistence of the marriage is deemed to be privileged therefore a spouse cannot be compelled to testify against the other during criminal proceedings. The aim is to protect the sanctity of the marriage relationship. The parties are still bound even after divorce/separation.

Professional privilege

This refers to the privileges enjoyed by professionals not to disclose any communication between them and their clients, e.g. doctors cannot be compelled to testify about matters that come to their knowledge in the course treating their patients. They are bound by their Laws and Ethics not to disclose, which if they do, amounts to misconduct.

The Evidence Act specifically provides for the protection of Advocates and Legal Advisers against compulsion from testifying about matters between them and their clients. S.125 provides that no Advocate shall at any time, be permitted, unless with his client’s express consent to disclose any communication made to him in the course and for the purpose of his employment as such Advocate by or on behalf of his client or to state the contents or conditions of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client during the course of and for the purpose of his employment. It would amount to professional misconduct if such advocate failed to disclose although there is an exception where the client gives express consent to disclose.

Omari s/o Salum v R [1956] 22 EACA

Held: Court restated the provisions of s.125, that it is professional misconduct for an advocate to disclose any communication made to him by his client, unless the latter has consented, that the only exception is when the client has consented or when the communication is for an illegal purpose.

S.125 has exceptions to this rule. The proviso- provided that nothing in this section shall protect from disclosure:

a) any such communication made in furtherance of an illegal purpose;

b) Any fact observed by any Advocate in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment. The section also says that the obligation not to disclose information unless it is for an illegal purpose continues even after the employment relationship has ceased.

S.126 - the obligation not to disclose as well as the privilege of not being compellable extends to the interpreters, servants and clerks employed by the Advocate. This is in recognition of the fact that the advocate does not know of the facts or act on them alone. They are bound even on termination of the contract.

Under s.127, even if a party volunteered the evidence in court on the communication between him and the Advocate, he shall not be deemed to have consented to disclosure by the Advocate, i.e. you cannot waive a privilege as attached to the communication. This provision also attaches to legal advisors- s.128. The difference between an Advocate and a Legal Advisor is that the former is LDC trained with a PGDP while the latter may not possess those qualifications.

Judges and Magistrates also have professional privilege. S.119 provides that no judge or magistrate shall, except upon the specific order of some court to which he is subordinate, be compelled to answer any questions as to his own conduct in court, as such judge or magistrate or as to anything which came to his knowledge in court while in such position, but s/he may be examined as to other matters which occurred in his presence while acting as such e.g. Her Worship Alividza and the accused, Arinaitwe…she could testify.

S.124 provides for both professional and public privilege- no magistrate or political officer shall be compelled to say where he got any information as to the commission of any offence and no revenue officer shall be compelled to say where he got any information as to the commission of any offence against the public revenues. This section protects informers.

Public Privilege

This protects Government secrets from disclosure during court proceedings. It deals with Diplomatic and Presidential immunity. These categories of people cannot be compelled to give evidence in court. See ss122-123. From these sections, the issue is- who has the authority to determine whether the public interest and security would be in danger? In court the issue is usually whether the court can compel a public officer to explain why he thinks a public document must be confidential.

Duncan v Cammell-Laird

Facts: A British sub-marine was sunk during World War II, killing 99 men. The dependants of the deceased persons sued for damages due to negligence. They applied for the discovery of certain documents relating to the accident. Government refused to disclose the documents contending that their production would injure public security. The plaintiffs counter-argued that the claim for privilege should not be final, but should be investigated by the court to avoid injustice.

Held: HOL- The court should accept the claim for privilege on face value and should not inquire into the reasons for not disclosing the documents.

Conway v Rimmer

Issue: The issue was the same as in the Duncan case; however, the HOL overruled their decision in the Duncan case.

Facts: The plaintiff was a former Police Constable. He sues the department for malicious prosecution and false imprisonment and he applied for discover of certain documents in the possession of the defendant who claimed privilege.

Held: Court laid down a number of principles:

i) The documents should be provided for inspection in court and if court finds that disclosure will not be prejudicial to public interest or that any possibility of such prejudice was insufficient to justify its being withheld, then disclosure should be ordered.

ii) In all cases, the court should balance the two conflicting public interests in such cases, i.e. that no harm should be done to the state by disclosure against the public interest in the proper administration of justice, by ensuring that all relevant evidence is adduced.

A number of East African cases have followed the ruling in this case:

Rukare v Universal Trading Co. [1974] AC 395

Rachure v Sondi [1967] EA 624