By Abdulrahman Bah Esq
Following the defeat of former President Yahya Jammeh in the 2016 presidential election, the new government of President Adama Barrow, in 2017, set in motion the process of promulgating a new constitution for The Gambia with the objective of installing good governance, protecting human rights and enhancing the criminal justice delivery system. The draft constitution has introduced several new provisions to achieve these objectives. This article focuses on one such provision and its overall impact on the criminal justice delivery system. The introduction of Section 45 (5) in the draft constitution is meant, in effect, to alter and overrule the common law position on the admissibility of illegally obtained evidence. This article commences by providing a background on the draft constitution and proceeds to examine the current common law position on the admissibility of illegally obtained evidence and critically analysed the effect of Section 45(5) of the draft constitution on the criminal justice delivery system and concluded by making recommendations for stakeholders in the criminal justice delivery system.
On 1st December 2016, Gambians went to the polls in what turned out to be a monumental defeat of the dictatorial regime of former president, Yahya Jammeh. The defeat of the strongman brought renewed hope to Gambians both home and abroad. In an effort to rebuild the foundations for good governance and restore democracy in the country, the new government of President Adama Barrow “formulated a National Transitional Justice Programme to help restore democratic governance in the country. In this regard, the government resolved to review the 1997 Constitution and draft a new constitution to address the wishes and aspirations of Gambians.”
In December 2017, the National Assembly enacted the Constitutional Review Commission Act with the mandate “to draft and guide the process of promulgating a new Constitution for The Gambia. On the 15th November 2019 the Constitutional Review Commission published the first draft of the proposed Constitution and invited members of the public to make contributions with a view of further enriching the instrument. On the 30th March 2020, the final Draft Constitution was released to members of the public and on the 28th May 2020, the final Draft Constitution was gazetted in the National Gazette to kick start the process of promulgating the draft constitution into the Constitution of the Republic of The Gambia, 2020.
By far, the draft constitution appears to be the most consultative and participatory constitution in the history of The Gambia for it arguably represents, and captures the wishes and aspirations of Gambians both home and abroad. Aside from its widely consultative and participatory nature, the Draft Constitution has introduced new provisions that are aimed at ensuring respect for the rule of law and human rights and enhancing the criminal justice delivery system. This article focuses on one such novel provision – section 45(5) of the draft constitution.
The rational for focusing on Section 45 (5) of the draft constitution instead of a wholesome commentary of the entire draft, is that section 45(5) has a wide reaching implication on our criminal justice delivery system and therefore it is pertinent that this article bring its implication to the fore with the objective of raising awareness for stakeholders in the criminal justice delivery system.
The implication of Section 45 (5) of the draft constitution is that once adopted it will alter the long-held common law position on the admissibility of illegally obtained evidence and will in effect, introduce in our criminal justice system the so-called ‘Exclusionary Rule’ inspired by the Fourth Amendment to the United States Constitution.
Current common law position on illegally obtained evidence
By virtue of section 7 of the 1997 Constitution, the English common law rules form part and parcel of the corpus juris of The Gambia and consequently the common law position on illegally obtained evidence has since the enunciation of the rule been applied in our courts. Under English common law, the rule is that once a piece of evidence is relevant to a judicial inquiry, subject to certain procedural rules, it becomes admissible; and as Cross puts it, it is immaterial to the court the method or manner by which such incriminating evidence was obtained, although it may warrant punitive or remedial proceedings against those responsible for the illegality.
In dealing with illegally obtained evidence, the common law courts are usually confronted with two conflicting public interests – (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and; (b) the interest of the state to secure that evidence bearing upon the commission of a crime and necessary to enable justice to be done shall not be withheld from courts of law on any mere formal or technical ground…”
In balancing these two conflicting interests, the common law courts adapted the attitude of admitting evidence regardless of how it was obtained. Emphasis therefore is placed on relevancy. This can be seen in the following cases. In Jones v. Owens, Mellor J was of the view that if such evidence could not be used against the accused, it would be “a dangerous obstacle to the administration of justice”. In R v. Leatham, Crompton J went as far as to say that “if you steal it even, it would be admissible”. The Privy Council per Lord Goddard CJ in the Kenyan case of Kuruma Son of Kaniu v. R reinforced the common law position and maintained that the test to be applied in considering whether the evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.
In essence, the common law courts are more concerned with vindicating the truth with the aid of relevant evidence, rather than excluding such evidence on the ground that it has been improperly obtained. However, in England and Wales, the introduction of the Civil Procedure Rules (CPR) in April 1999 and the effect of the Human Rights Act 1998, which incorporated certain Articles of the ECHR into English law has modified the common law position. Rule 32.1 (2) of the CPR gives the courts of England and Wales discretion to exclude illegally obtained evidence.
In the United States, where the rule originates, illegally obtained evidence and any knowledge gleaned therefrom, subject to some exceptions is excluded in criminal proceedings. Known in US jurisprudence as ‘the exclusionary rule’, it emanates from the Fourth Amendment to the US Constitution, which prohibits ‘unreasonable searches and seizures’. The exclusionary rule applies not only to the original evidence illegally obtained but also to copies and knowledge gleaned therefrom. The precedents have established that both the ‘primary evidence obtained as a direct result of an illegal search or seizure’ and ‘evidence later discovered and found to be derivative of an illegality, the so-called “fruit of the poisonous tree” are inadmissible in criminal proceedings.
Having determined the current position of the law as it relates to illegally obtained evidence, it is now apposite to examine the effect of section 45(5) of the draft Constitution on the current law.
Section 45 (5) of the draft constitution
As indicated above, one of the new provisions in the draft constitution is section 45(5). The said provision, subsumed under the right to fair trial, provides:
“Evidence obtained in a manner that violates any fundamental right or freedom under this Chapter [Chapter VI] shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice”.
The foregoing provision, contrary to the common law position, compels a trial judge to exclude any evidence proven to have been obtained in a manner that violates any fundamental right or freedom under chapter VI. It is worthy to mention at this stage that even though the provision, on a literal interpretation, seems to apply to both civil and criminal cases, the focus of this article however will be on the overall impact of the provision in the criminal justice delivery system. The propriety of extending the provision to civil cases will be the subject of a separate article having regard to the fact that even in the United States where the ‘exclusionary rule’ originates, there are authorities to suggest that the rule does not apply to civil cases, with the exception of forfeiture proceedings. It is worthy of mention that this provision is a carbon copy of Section 50 (4) of the Kenyan constitution, 2010.
Be that as it may, what can be gleaned from the provision is that, in the exercise of the power conferred on a court to exclude illegally obtained evidence, the court would resort in applying two tests to wit: (1) whether the admissibility of the evidence would ‘render the trial unfair’ and (2) whether the admissibility of the evidence would be ‘detrimental to the administration of justice’.
While this provision is desirable from a human rights perspective, it will have a great impact on the criminal justice system especially with law enforcement, having regards to the current or existing investigation techniques of law enforcement officers. In consonance with the common law position on illegally obtained evidence, investigators have adopted techniques, supported by extant laws, of obtaining evidence regardless of whether same was obtained lawfully or otherwise. Section 45(5) has therefore come to change the game for investigators and prosecutors alike.
New rules for investigators and prosecutors
The Criminal Procedure Code, the Police Act, the Drug Control Act, the Customs and Excise Act, the National Intelligence Agency Act, the Gambia Armed Forces Act and the Anti-Terrorism Act amongst others confer various powers of arrest, search and seizure, detention, investigations, and prosecutions of various offences on officers appointed pursuant to the foregoing regimes. The extent of these powers varies from one security outfit to another but common among these security outfits is the power to arrest, search and seize item from persons suspected to have committed an offence with the objective of using the seized items as evidence without a warrant.
Very often and perhaps owing to the common law position towards illegally obtained evidence, searches done on the person of suspects or their homes are done in violation of their fundamental human rights especially the right to privacy. The current position of the law is that irrespective of the violation of a fundamental right, except torture, evidence obtained from a suspect once proven to be relevant would be admissible. However, if the draft constitution is adopted in a referendum, investigators must conform with the following rules during investigations:
(i) when a suspect is arrested on suspicion of having committed an offence, he or she must be reminded of his/her right to remain silent pursuant to section 45(2)(i);
(ii) when a suspect is arrested for any offence, before he/she is interrogated with a view of obtaining evidence from him/her, the suspect must be informed of his right to counsel pursuant to Section 45(2)(g); and
(iii) when a suspect is arrested and the investigators intend to search the home or premises of a suspect to obtain evidence that is intended to be used in evidence, the search must conform with section 43- right to privacy.
The violation of “ANY” of the foregoing rules, will render any evidence obtained from a suspect inadmissible if the admissibility of the evidence would ‘render the trial unfair’ or if the admissibility of such evidence would be ‘detrimental to the administration of justice’. It is glaring now that the game will change for investigators and prosecutors as the courts have now been empowered to toss out illegally obtained evidence and thereby hindering the pursuit of justice by victims of crimes.
In our criminal justice delivery system, the role of the investigator is perhaps more important than the role of the prosecutor. The prosecutor becomes seized of the file after investigations are supposedly concluded and his/her success or failure in the prosecution of an offence largely depends on the proprietary of the evidence obtained. There is a chain reaction when the investigator fails to comply with the rules itemised above- the evidence gathered in breach of a fundamental right or freedom will get tossed out, then the case could fail as a result and the victim end up getting no justice and the confidence in the criminal justice system begins to erode. Reform therefore becomes pertinent.
Recommendations for reform
As the erudite Nigerian jurist Justice Oputa once expounded, justice is not a one-way traffic, neither is it a two-way traffic. It is a three-way traffic- justice for the accused who stands accused of a heinous crime; justice for the victim who wants vengeance; and justice for society whose social norms and values have been desecrated and broken. To ensure that justice is served, the institutions in the criminal justice delivery system have to engage in a reform to live by the new rule of Section 45(5). Below are some recommendations for reform.
1. Training of criminal investigators
In light of the new rules expatiated above, crime investigators need to be trained and reoriented with a view of acquainting them with the new rules and the effect of non-adherence to same. As I highlighted above, there is now a consequence for not reminding a suspect of (1) his right to remain silent; (2) his right to counsel and (3) adhering to his right to privacy. These rights if violated will render any evidence obtained from a suspect inadmissible during the trial. And needless to say, that when the most vital piece of evidence is excluded from evidence, the entire case may likely suffer. Therefore, training and reorienting investigators so that they can conform to the new rules becomes very important in this regard.
2. Creating a synergy between investigators and prosecutors
As it currently obtains, there is a disconnect between the investigator and the prosecutor. In The Gambia, the procedural trajectory of a case commences from the alleged commission of an offence. The allegations set in motion an investigation of the offence. Once the investigation is concluded, the case file is forwarded to the office of the Director of Public Prosecutions (DPP) for legal advice and prosecution. Since the investigation is conducted solely by the investigator, who usually has a limited knowledge of the law and procedure and the basic elements of the offence required to prove the offence, the prosecutor’s case is therefore as good as the investigator. To obviate a scenario where an investigator does a shabby work of gathering the evidence, leaving the prosecutor with an uphill task in court with a pile of inadmissible evidence, it becomes important that a synergy is created between the investigators and the DPP’s office to facilitate proper guidance in obtaining the evidence and policing the manner in which the evidence is obtained. In light of the new circumstances, this synergy becomes even more important now especially with the attendant risk of having the court exclude relevant evidence.
3. Creating rules and procedure to test the admissibility of the evidence
While Section 45(5) of the draft constitution has confers power on the courts to exclude illegally obtained evidence, the provision leaves many questions unanswered. The adoption of Section 45(5) of the draft constitution will immediately impact the dispensation of justice. How would a court determine whether the admissibility of a piece of evidence renders the trial unfair or be detrimental to the administration of justice? This is a question of law and fact. Since the answer to that question would require an examination of the facts surrounding the evidence, it therefore calls for the establishment of a trial procedure (mini trial) to test the admissibility of the evidence with a view of determining the manner in which it was obtained, in the same manner the voluntariness of a confession is tested before its admissibility or otherwise.
It is worthy to note that while the provision of Section 45 (5) has in effect overruled the position of the common law, it leaves so many questions unanswered. For example, since Section 45(5) excludes evidence directly obtained by the breach of the rights and freedoms enshrined under Chapter VI, what happens to evidence or knowledge gleaned from such violations? Would such evidence be subjected to the same test or would it serve as an exception?
Further, would this new rule apply to evidence illegally obtained before the coming into effect of the draft constitution? If no, would the court then during trial segregate cases on the basis of when the evidence was obtained? Whatever the answer is, this would sure cause quite a conundrum for the courts.
In conclusion, from a human rights perspective, the provision is a welcome improvement on an accused person’s right to fair trial but from a law enforcement perspective; it has created a nightmare for investigators and prosecutors.
Abdulrahman Bah Esq (LLB, BL, MIP, LLM) is the director of Legal and Board Services, Gambia Revenue Authority. He also lectures Law of Evidence at the University of The Gambia. He was a former State Counsel at the Attorney General’s Chambers.