Rules Of Evidence Research
INTRODUCTION
The ‘rules of evidence’ are rules of practice, which guide or control the discretion of the trial judge in the fair conduct of the trial. This research paper will therefore discuss the constitutional provisions that constitute rules of evidence, which protect the rights of an accused person, and the extent to which such protection is afforded. To close, an opinion will be given on whether the rights of an accused are indeed protected.
CONSTITUTIONAL SUPREMACY AND THE PROTECTION OF RIGHTS
For the purposes of this exercise it is important to briefly consider that the Constitution of Zambia is the supreme law of Zambia with the effect of declaring null and void any law that is inconsistent to it.
Furthermore, The Constitution provides
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…its application does not depend on either the fact, or the presumption, that the defendant has peculiar knowledge enabling him to prove the positive of any negative averment.”
The above details entail that in an instance where a statute expressly provides for an offence which when construed proves for a negative averment; it then means that proving the positive of any negative averment is on the accused. Thus in essence, an accused person will have to show that they fall within the wording of an exception, proviso, excuse or specified circumstance.
In fact, Lawton LJ stated that this exception brought about two consequences as seen from the
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It is essential to state that which shifts is the evidential burden and it has to be proved on a balance of probabilities.
The above details can be appreciated in the case of Attorney General v Lyampali and Liso in which the accused persons had to prove on a balance of probabilities that they had lawful authority or reasonable excuse for “possessing offensive weapons in a public place”, elements which had been proved by the prosecution.
Having considered the presumption of innocence as guaranteed under the constitution and the extent to which it is afforded protection, it is pertinent to consider the right contained and guaranteed under article 18(7) of the Constitution, which is to be discussed under the heading below.
2. Competence and Compellability of an Accused
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