/ 7 September 2022

The right to silence in South Africa’s Constitution is in need of amendment

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Constitution of South Africa concept. Image: Getty Images

Today we see and hear none other than our president, Cyril Matamela Ramaphosa, keeping mum about what occurred at his Phala Phala farm, even though he is the subject of very serious criminal charges.

We also have a “platoon” of former “chiefs”, such as Brian Molefe, on very serious corruption charges, not being compelled to explain … explain … explain!

As regards the Oscar Pistorius “Trial of the Century”, screened live by Carte Blanche, we were divided into the following camps:
1. You believed Pistorius killed Reeva Steenkamp in cold/hot blood during a confrontation between the two;
2. He believed that Pistorius mistakenly killed Steenkamp thinking there was an intruder behind the door who he fully intended to execute (dolus directus = intentional killing of a human);
3. She believed ed that he only foresaw that he might kill a human behind the door (dolus eventualis = foreseeing death as found by the courts in this case);
4. They believed that he neither intended nor foresaw death but was negligent in his conduct, which negligence resulted in death (culpable homicide as found by the trial court).

From my travels to three countries in Africa, England, the United States and New Zealand, it appears that option 1 above was believed by most of you. To what extent, if any, this might have changed as a result of the ITV screening of Pistorius explaining the event is anybody’s guess.

The real point to be made is that you just don’t know; we just don’t know. We really don’t know which of these four scenarios is the truth. You might believe … and we might believe … and believe … and believe … but we just don’t know. Belief is not knowledge.

However, we would have been in a much better position to know the truth if we had all seen an ITV-type recording immediately after Pistorius shot and killed Steenkamp. When Pistorius killed Steenkamp, he had an absolute obligation to explain it — explain to her parents, June and Barry Steenkamp; explain it to the rest of her family; explain it to her friends; explain it to South Africa; explain it to humanity.

But he did not. Our law allowed him to keep mum, hide the truth and speak only at a time of his choosing. We just have no way of knowing whether what he had to say so much later in court, and what he then said to ITV, was all lies, mostly lies, some lies or the truth. He had more than enough time to make up lies, bend the truth or do both.

That is what our law, under our Constitution allowed him to do. It is called the “right to silence”, and it is regarded as sacred. Every accused person, even if caught red-handed raping a baby is entitled to shut up, refuse to explain his actions and later arrive in court with whatever story he has been able to cook up. Obviously, this marvellous “right” gives criminals the time and opportunity to manufacture whatever is needed, real or imagined, to get them out of being held accountable for their actions.

It is even the case that the mind will “hysterically suppress” the truth, because it is too painful, and substitute the real events with a version of events that is tolerable but untrue. In this way, because of this right to silence, what we heard from Pistorius in court, and what we heard in the ITV broadcast, was a “truth lottery”. Only God knows whether it is true, wholly or in part, as even Pistorius might not know because of the machinations his human mind is capable of.

If this were Zimbabwe, we would not be in this situation. Under the law in that country, you are required to immediately explain evidence that clearly incriminates you. In Pistorius’s case, we would have seen an ITV-type video immediately after the shooting, not now three years later. He would have been given little or no time to consciously or subconsciously rearrange the facts of the matter.

He would have been compelled to explain and account for why he killed Steenkamp while the event was still fresh in his mind. In those circumstances, his story would have been inherently far more credible. There would have been a far bigger chance of it being true. In addition, the court would have known on day one what defence he had, if he had any, and the pantomime of “every and any” defence being thrown at the court would have been avoided. In short, the chance of justice being done, and being seen to be done, in this case would have been greatly enhanced.

It should be noted that the reason why the so-called right to silence is regarded as sacred in most of the free world is because of a history where the use of force, even torture, by bad governments to extract false confessions out of innocent people, became something that really needed to be avoided. 

Innocent people can and do falsely incriminate themselves for all kinds of reasons, especially under pressure from experienced law enforcement agents. So, the right to silence became a fundamental human right in most of the free world. In the US, it is known as “taking the 5th”, because it is conferred by the 5th amendment of their Constitution.

However, the Zimbabwean model shows that an inroad into the blanket right of silence is not a breach of any human right and greatly facilitates the administration of justice. I have experienced it in all its ramifications as a clerk of court, public prosecutor, magistrate, advocate and judge of the high court. 

Great chief justices, such as John Charles Rowell Fieldsend, Philip Telford Georges, Enoch Dumbutshena and Anthony Ray Gubbay did not baulk at the Zimbabwean model. The Zimbabwean inroad into this precious right to silence did not jeopardise justice but enhanced it.

South Africa has a terrible crime rate; one of the worst on this planet. The conviction rate is just as bad. We do need to amend the Constitution and change the law. A blanket right to silence only benefits criminals. 

Obviously, state agents cannot be allowed to harass people on “fishing expeditions” to trap them in self-incrimination. However, where there is clear evidence of criminal conduct there is no good reason why an immediate explanation should not be required. Further safeguards can be built in. For instance, an accused person should be entitled to have their lawyer present when explaining the matter. In Zimbabwe, the statement in explanation is also “confirmed” by a magistrate.

We really do need the change. For a start, the Oscar Pistorius “Trial of the Century” would have lasted a fraction of the time and, from day one, everyone would have known what was at issue.

Right now, we would have an explanation of the Phala Phala allegations and Molefe & Co would be compelled to explain what is referred to in the Zondo commission report.

Instead, what is happening is that accused persons are being afforded the privilege of first assessing what the state has and then cooking up whatever defence meets the state’s case. This is 100% nonsensical in a country where crime is rampant and the conviction rate is so very, very low.

Note that in the leading nation of this planet, former president Donald Trump recently took the 5th Amendment 500 times in one day after bellowing earlier in his career that “only mobsters take the 5th”.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.