DANIEL D. NTANDA NSEREKO* POLICE INFORMERS AND AGENTS PROVOCATEURS: ACCOMPLICES OR HANDMAIDENS OF THE LAW? PERSPECTIVES FROM THE COURTS OF EASTERN AND SOUTHERN AFRICA 1. INTRODUCTION ‘A major function of the police in any society is to prevent crime, to detect crime, and to bring criminals to justice. To fulfill this function the police need information on crime, whether it has already been committed or is merely threatened. Unless the crime has been committed or has been threatened to be committed in their presence, the police need information from other sources. The usual sources of such information include the victims or likely victims, public-spirited or concerned citizens, witnesses to the crime, the media, public documents, and informers, acting either on a voluntary basis or on reward by the police. This article deals with that species of informers known as traps. It discusses the rationale for and the ways in which traps are employed by the police in the English- speaking countries of Eastern and Southern Africa. It reveals some of the legal pitfalls that are attendant to their employment, and the consequences of the police’s failure to heed Friedrich Nietzsche's cryptic warning that “[w]hoever fights a monster should sce to it that in the process he does not become a monster.”! 2. THE INFORMER Informers fall into several categories: the anonymous caller, the observer, the eavesdropper and the participant. The anonymous caller may alert the police to the existence of a problem and, depending on the seriousness and * Professor of Law, University of Botswana, Gabarone, Botswana; LL.B., University of East Africa 1968; M.C.J., Howard University 1970; LL.M., New York University 1971; JS.D., New York University 1975. 1 Cited by H. Allan Dill, Casey D. Paison, Government Manufacture of Crime And the Entrapment Defense, 22 Colo. Law 925 (1993). Criminal Law Forum 9: 151-169, 1999. © 1999 Kluwer Academic Publishers. Printed in the Netherlands.152 DANIEL D. NTANDA NSEREKO- cogency of his account, may move the police to start investigations. His information may also form the basis of a police application for a search or arrest warrant. The anonymous caller’s information must, however, be treated with the utmost circumspection. The caller may be out for mischief or may be actuated by malice, the more so since his identity is unknown. An observer may be a valuable source of information which may be used for the preliminary case build-up and for corroborating other informa- tion already in the possession of the police. As the main source, however, an observer, particularly a paid observer, must be treated with caution. He or she may tend to read into the suspect’s actions, and reflect preconceived views instead of what actually happened. The observer may also miss vital points whilst being obsessed with irrelevancies, often the consequence of such preconceptions. The eavesdropper, too, provides useful information which may corrob- orate other first-hand information already in the possession of the police. But like the observer’s information, an eavesdropper’s information must be taken with a pinch of salt. There is often a tendency for what the eaves- dropper hears to be entangled with other goings-on which he or she does Not see or appreciate. The participant, on the other hand, is probably the most reliable and the most valuable informer. This is so because the participant was involved in the criminal activity in question. She testifies not only to what she saw and heard, but also to what she participated in doing. There are two distinct groups of participant informers. The first is the person who participates in the commission of a crime from beginning to end with solely criminal motives. For a variety of reasons, such an individual decides to betray his or her confederates to the police and to testify against them. This is the accomplice witness par excellence. The other participant informer is the trap. The trap is a person who is planted by the police in the crim- inal scheme in question to assist in its consummation. The trap may give counsel to the principals on how to commit the crime; the trap may do or omit to do certain things that are essential to the consummation of the crime; or the trap may simply create conditions that facilitate the commis- sion of the crime. The motive for the trap’s involvement is to be able to give evidence about the crime. This person may be an undercover police functionary. He or she may be an innocent or any individual who is willing to work as a police agent. The trap may also, on the other hand, be one who is known by the police to be involved in criminal activities or is associated with criminal groups and has rapport with suspected criminals under police investigation. As indicated earlier, this paper focuses on the trap.POLICE INFORMERS AND AGENTS PROVOCATEURS: 153 When the police suspect any person to have committed an offence, or have information that such person has evinced a desire to commit an offence, they may use a trap to obtain evidence of such offence. The police may do so in cases where such a person is in possession of stolen prop- erty; or where a bribe is offered or requested. The police may also use a trap where they suspect someone to be engaged in a course of criminal conduct such as drug trafficking or immoral conduct, in order to obtain evidence of such conduct. They may also use a trap in situations where a certain type of crime is prevalent in a given locality and the ordinary police investigative methods are inadequate to identify its perpetrators and to bring them to book. In all these situations the police usually instruct the trap to do any of the following things to the targeted individual who is invariably unsuspecting: pretend to support or to go along with the suspect in committing the crime; deceive or trick the target about a given situation; provide him or her with the means by which to commit the crime; provide the contraband; provide a victim; actively or passively lure the target into committing the crime; and generally provide the target with an opportunity tocommit the crime. These modes of operation by police traps are reflected in the following cases, mostly from Eastern and Southern Africa. Ina Botswana case, the accused was a representative of a South African company that had tendered to supply furniture to the National Library Service (NLS). He approached an employee of the NLS and asked her to use her position to ensure that his company won the tender. Forher services he promised to pay her 7,500.00 rands. The employee reported the matter to the police. The police counselled her to pretend to be supportive of the accused’s request. With the encouragement of the police, another meeting, a luncheon provided by the accused, was arranged. At that meeting the accused repeated his offer to the employee. After the meeting he gave her a lift and before they parted gave her a sum of money. Unknown to the accused, the police had strapped the employee with electronic recording devices which recorded his conversation with her. He was subsequently arrested and charged with corrupting a public officer. In an English case, the police desired to recover stolen property and to retum it to its rightful owners. They set up a shop, the Stardust Jewellers, purporting to be dealing in buying and selling used jewelry. The accused sold jewelry to the shop that they had previously stolen from elsewhere. They even signed receipts for the money they were paid by the shop. The police had concealed video cameras in the shop which recorded the trans- actions between them and the police, who were managing the store. They 2 Ezra Dube & Another v. State, unreported, Court of Appeal Crim. App. No 22 of 1996 (Botswana).154 DANIEL D. NTANDA NSEREKO were subsequently arrested and charged with burglary or, in the alternative, handling stolen goods. In a Kenyan case, the two accused went to Kitui to buy goats. Suspecting that the accused were involved in slave trading, a senior police officer laid a trap by sending an agent who offered them slaves for sale. The agent produced two women, The accused agreed to buy the younger of the two for 50 Rupecs. They were subsequently arrested by the police who were hiding nearby and charged with slave trading.* In a similar Tanzanian case, the accused was suspected of dealing in raw gold. The police decided to engage the services of two part- time informers. These informers were remunerated for their services, the amount depending on the results; they were to be paid only half of the agreed amount if there was no conviction. Accompanied by a senior police officer, they went to the accused’s house with a piece of raw gold. They sold the gold to the accused. As soon as they handed the gold to the accused and received the price for it from her, they signalled the officer who was waiting outside the house. The officer came in and arrested the accused and subsequently charged her with illegally buying raw gold.> In another Botswana case, the police suspected the accused, a Tanzanian national, of trafficking in heroine and cocaine, drugs that are in Botswana abused mainly by white expatriates. They set up a trap involving two white police officers from South Africa. The officers posed as customers in need of the drugs from the accused. As soon as the drugs and the money changed hands the Botswana Police, who were hiding nearby, pounced on the accused, arrested them and seized quantities of drugs from their premises. They subsequently charged them with drug trafficking.® In another English case, a police officer on surveillance stopped his car right near a prostitute walking along a street at about 11:30 pm. Encour- aged by his behaviour toward her, the prostitute went over to him and asked if he was interested in her services. The officer replied by asking “How much?” The prostitute answered: “Two pounds in the car, three pounds inside”. “All right”, the officer answered. The woman got into the car only to be arrested and charged with solicitation in a public place for immoral purposes.” 3 Rv. Christou, [1992] 1 Q.B. 979 (C.A.). 4 Rv. Katemi & Another (1910) 3 East African Protectorate Law Reports 79. 5 R.v. Parentis (1937) 1 Tanganyika Law Reports 208. 6 State v. Omari Salim Mwakatikara & Another, Gaborone Magistrate's Criminal Trial no. 260 of 1995 (unreported). 7 Sneddon v. Stevenson, [1967] 2 All E.R. 1277 (Q.B.D.).POLICE INFORMERS AND AGENTS PROVOCATEURS, 155 In two related Zimbabwean cases, the police deliberately parked two cars at some busy locations in Salisbury. In each car they placed a blue jacket over the back of the front seat near the passenger's window which they turned down. They stood at a distance from the cars where they could not be seen. In both cases the accused stole the jackets. They were almost instantly arrested by the police and charged with the thefts. The first accused had two previous convictions, while the second was a first offender who was only nineteen years of age. This is called the ‘manna-from-heaven’ trap. 3. JUSTIFICATION In general, the police use traps in ‘victimless crimes’, or crimes directed at the public at large rather than at individual victims. These crimes usually include: (i) illegal sale of prohibited articles such as alcohol, drugs, precious stones, and weapons; (ii) sale of certain articles above controlled prices or quantities or during prohibited hours, or to certain prohibited persons such as teenagers; (iii) drinking at prohibited places or during prohibited hours; (iv) illegally practising certain professions such as law, medicine and dentistry; (v) abortion, unnatural offences, persistent solicitation for immoral purposes in public places; (vi) using premises for prostitution; (vii) living on the earnings of prostitution; (viii) bribery and corruption; and (ix) offences against state security. Save for the offences against state security, the rest of the crimes listed here involve a willing exchange of goods and services by the parties who commit them. They involve no identifiable victims who can complain to the police or give evidence in court. These offences are generally committed secretly with meticulous precautions, and leave no detectable evidence behind. Thus, the only way to detect them is to introduce an agent who may be able to observe them from within and thereby assist in bringing the culprits to justice. Conduct in such offences as selling or buying prohibited goods or selling them above certain prices or quantities or to prohibited persons, or receiving stolen goods or bribery are so similar to lawful conduct that it is well nigh impossible to distinguish between the two, hence the importance of the trap device. This point is also important. Offences such as drug trafficking are business. They are committed repeatedly whenever an opportunity occurs. They constitute a course of conduct for which it is difficult to obtain hard evidence. Law enforcement officials set traps to catch the offenders on 8 Rv. Clever, R. v. Iso, [1967] 4S. Afr. L. Rep. 256,156 DANIEL D, NTANDA NSEREKO at least on one occasion as a means of stopping them from that course of conduct in the future. In a case originating from Kenya, the Court of Appeal for Eastern Africa said: Apart from mere detection of crime already committed, there may be two other types of case, first where the police have information that a crime is likely to be committed and conceal themselves with a view to obtaining evidence of its commission, and secondly, where it appears that the offence would in any event be committed when opportunity arose and the police provide an arranged opportunity. These are both, as it seems to us, cases in which the use of a trap may be legitimate. The test is not we think, the provision of the means to commit the offence; otherwise it would be wrong to furnish marked notes in order to prove corruption. The real questions are first, the nature of the offence: obviously it could never be right to allow a murder to be committed and then arrest the murderer: but if an offence is of such a type that it can be repeatedly committed, is difficult to prevent or detect, and may be completed on one arranged occasion without actual harm to the commu- nity being done, a trap may be not only legitimate, but the correct method of preventing future offences. The seriousness of the offence does not seem to affect the matter. The next question is, we think, the frame of mind of the accused. If his presumed intention is to commit that single crime and then desist, it may be better, in most cases, merely to prevent the commission of the offence. If that is done it may or may not be possible to charge an attempt, But if it may be presumed that the intention is to commit, whenever opportunity offers, a series of offences of the same kind which it would be difficult to detect or prove, the case is especially suitable for a trap, and we see no objection to it. Lastly, use of traps is also said to have a positive effect on respect for the law generally. Knowledge among criminals that traps are being used against them may deter them from their criminal ways. It is on this basis that the Uganda police recently decided to use traps against their own corrupt officers in the traffic section. They distributed tagged currency notes to drivers who would in tum pass them on to the traffic police offi- cers as bribes. Any officer found in possession of the notes was arrested and prosecuted for official corruption. The decision to use traps against its own officers was taken in response to the hue and cry from the public and motorists in particular who accused the traffic police of extorting bribes from them.!° 4. THE DANGERS OF THE TRAP There are, however, dangers attendant on the use of traps that pose a threat to the very system of criminal justice they are supposed to serve. It must not be lost sight of that criminal justice is a two-sided affair: justice to the ° Wanjiko w/o Mukiri v. Regina, [1954] 21 Eastern Africa Court of Appeal Reports 387 at 387. 10 New Vision, May 26, 1997.POLICE INFORMERS AND AGENTS PROVOCATEURS 157 public and justice to the individual in the dock. The system must not only be fair to both parties but must also manifestly appear to be so. Fairness of a criminal trial is guaranteed under virtually all the constitutions of the countries of Eastern and Southem Africa.'! However, this fairness is not limited to court proceedings alone. It extends to out-of-court police activities as well. It is axiomatic that these activities often determine the outcome of the whole case. Therefore the police must refrain from unfair practices, both before and after the commission of the offence in question. Traps are unfair in many respects. They tempt citizens to commit crime. Instead of persuading those that are criminally inclined to resist or not to succumb to such inclinations, they embolden and urge them on to a criminal path. Then the selfsame people who made them succumb pounce on them like a leopard pounces on its prey, to arrest and prosecute them. To tempt our fellow human beings into wrong-doing is morally objec- tionable.'? As Justice Frankfurter of the United States Supreme Court insightfully observed, “{hJuman nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime.”!3 Take, for example, the Kenya case of Wanjiko w/o Wukiri v. Reginum.'4 Wanjiko was a mau mau activist during the Kenya pre-independence war. On several occasions she asked another woman called Wamboi whether she was a mau mau sympathizer and whether she could obtain ammuni- tion which she could pass on to the mau mau fighters. Wamboi, a police informer, pretended that she was in agreement with Wanjiko's suggestions. In the meantime, she reported the matter to the police, who decided to set a trap. They gave Wamboi ten rounds of ammunition with instructions to hand them over to Wanjiko. As soon as the ammunition changed hands the police, who were hiding nearby, arrested Wanjiko and charged her with possession of firearms, then a capital offence. Wanjiko was convicted and the Court of Appeal for Eastern Africa confirmed the conviction. It is to be noted that this was not a continuing offence or one in progress or one that would have been committed in any case, with or without police participation. It could not have been committed but for the active support "I For example, see: Constitution of Botswana, s. 10; Constitution of Namibia, s. 12; Constitution of South Africa, s. 35(3); Constitution of Uganda, s. 28. 12 This is particularly so under the Judeo-Christian culture which frowns on tempting our fellow human beings. The Lord’s Prayer says: “Lead us not into temptation ...”" (Matthew 6:13). Also, the fall of Adam in the Garden of Eden resulted from Eve being tempted by the serpent (Genesis 3). '3 Sherman v. United States, 456 U.S. 369 (1958). 14 Supra note 9.158 DANIEL D. NTANDA NSEREKO of the police, who provided the accused with ammunition only to charge her with possessing it. This could not have been fair! Leading people into crime is also ethically questionable on the part of the police. Their duty is to prevent crime and not to manufacture it. ‘When they become aware of any plans to commit a crime they should try to frustrate those plans before they blossom into full-blown crime. It is indeed an offence in some jurisdictions in the region not to do so. For example section 372 of the Uganda Penal Code provides as follows: Every person who, knowing that a person designs to commit or is committing a felony, fails to use all reasonable means to prevent the commission or completion thereof, is guilty of a misdemeanor. !5 In Wanjiko’s case, for example, on becoming aware of Wanjiko’s criminal desires, the police should have dissuaded her and assisted her to lead a law-abiding life, not to aid and abet her and then prosecute her. Another Ugandan case is also in point here. It was against the law during colonial times to sell liquor to ‘natives’, a pejorative for Africans. The police sent ‘a native’ trap with marked coins to buy liquor from the accused, He was subsequently charged with and convicted of contravening the law. Quashing the conviction the Uganda High Court remonstrated with the police thus: The facts ...show clearly that the commission of the offence was procured by the police and their agents, and that they were liable to be punished as abettors. It cannot be too widely known that the law regards with extreme disfavour anything in the nature of ‘an agent provocateur’ or ‘police trap’. The object of the police force is the prevention and detection of crime, not the manufacturing of it, even with a laudable motive behind. It must be borne in mind that in the case of ignorant natives the danger of an accused person being induced to commit an offence which he would not have committed but for the instigation received at the hands of the police or other authority, is a very real one. The trap, as in the present case, often may create the offence. The offence disclosed in this case was obviously committed by a man who in law was lacking in the mens rea, or in other words was innocent of any intention to commit such offence, until he was instigated to do so by the police authority. The offence was conceived and hatched by the police and carried out with the help of their agent, working by their instructions upon the mind of the victim — for such indeed in the eye of the law he was, whatever grounds they may have had for suspicion against him.'© Traps, particularly the manna-from-heaven type, are also untenable for another reason. The police often urge members of the public to prevent crime or victimization by being security conscious. They advise them to lock their houses and motor vehicles, and not to leave things around or in unattended motor vehicles, because to do so is to attract or tempt 1S For similar provisions, see the Penal Code of Kenya, s. 392; Penal Code of Tanzania, s. 383. '© R. v, Muttra Prasad (1913) 2 Uganda Law Reports 76.POLICE INFORMERS AND AGENTS PROVOCATEURS 159 thieves. When the police set up the manna-from-heaven type of trap, as in the Clever case," they are not practising what they preach! Besides, these traps are also unconscionable. This is particularly so in societies where the majority of the people are poor, unemployed or deprived. Rather than tempt these hapless members of the community into crime so as to punish them, the authorities should instead endeavour to alleviate their unfortunate and necessitous condition. Traps do also at times involve an element of overreaching or over- bearing. The police and their agents sometimes use their authority over subordinates to induce them to commit crime so that they may subse- quently prosecute them for those crimes. True, obedience to superior orders is no defence under the laws of the countries of the region. It is nevertheless submitted that convictions procured in this manner are devoid of any moral legitimacy.'8 In a South African case, a white woman persuaded Maslangho, a 23-year old black ‘kitchen hand’ in her employ, to buy dagga (cannabis) on her behalf from a named seller with money that she provided. As a reward she gave him a dagga (cannabis) cigarette. He was subsequently charged with dealing in dagga. The trial court found that the woman abused her position of authority over the accused, a first offender, so as to persuade him to do her bidding. It nonetheless convicted him of the offence and sentenced him to four years’ imprisonment. The superior court (on review) described the conduct of the trap as ‘despicable’ and the sentence as ‘shockingly inappropriate’. It nevertheless confirmed the conviction, reducing the sentence to six months’ imprisonment of which five months were conditionally suspended for three years.'9 A distinction is often made between two scenarios. In the first scenario, which we shall refer to as a ‘mere trap’, the police agent “by passively acceding to the accused's suggestions or by exposing him to temptation helps cause him to commit [a crime] by providing him with an opportu- nity”. In the second scenario, which we shall call ‘entrapment’, the police “urges the accused to take advantage of an opportunity to commit crime.””° The courts generally approve of the first scenario while they disapprove of the second one. In a Ugandan case, the accused, a chief, asked for a bribe from an individual who subsequently informed the police. The police provided the individual with a marked twenty-shilling note. He 17 Supra note 8. 18 For an interesting discussion on the point see: Victoria Bronstein, Unconstitutionally Obtained Evidence ~ A Study of Entrapment, 114 South African Law Journal 108 (1997). 19 sy, Maslangho, [1984] 4 S. Afr. L. Rep. 292. 20 See J. D. Heydon, The Problems of Entrapment, 32 Cambridge Law Jounal 268 (1974).160 DANIEL D. NTANDA NSEREKO in turn gave it to the chief, who was subsequently convicted of official corruption. On appeal, the chief contended that by trapping him the police lured him into committing the crime. According to him, the police were procurers and accomplices. The appellate court rejected his contentions, holding that he was not persuaded by the police to commit the offence: “He needed no persuasion since, as found by the learned magistrate, he had already solicited a gift of Shillings 20/- from J ...1 cannot see the slightest reason to suppose that the appellant was wrongly convicted.”?! In a similar Botswana case, an undercover police officer bought cannabis from the appellant with a marked note provided him by his seniors and arrested her soon thereafter. In answer to the complaint that the appellant was tricked into committing the crime, Justice Gaefele wrote: In all probability the appellant would have sold to anyone who had come in to buy dagga. It was by coincidence that on the Sth of November of 1993 she found herself selling to the ‘wrong person. The Appellant was indeed tricked into selling dagga to PW4, but such trick ‘was not applied to her, for she voluntarily sold to the Officer as she would have voluntarily sold to anyone interested to buy. By and large I will venture to say that it was in public interest that the Police did what they did and in fact used marked money in order that it could be used in evidence. PW4 cannot therefore be said to be criminis participes.2* The holding in these two cases may be difficult to fault. However, the dividing line between a ‘mere trap’ and ‘entrapment’ is thin and, in practice, is not always observed by the police. This is especially true in those cases where the police traps participate in police-arranged crime in exchange for immunities or for reward or who are paid their reward only on the accused being convicted.”* There is no gainsaying that in such cases the trap is likely to use pressure, be it verbal persuasion or other subtle tricks or ruses, to induce his victim to commit the offence in question. The unfaimess of this method of operation is even more patent in cases of persons with previous criminal records. As Justice Quenet noted in the Clever case, In the case of persons who have previously been convicted, trapping has the undesirable feature that it puts temptation in the way of those least able to resist it. In any case, such persons might not have offended again but for the fact of a trap.24 Suppose that such person was out of prison on a suspended sentence trying his level best to go straight. A successful trap against him will not only have the effect of getting him convicted of the trap-induced crime, 21 Misaki Chonda v. Regina, (1957) East African Law Reports 495. 22 Mmamonyane Segobaetso v. State, unreported, High Ct. Cr. App. No. 16 of 1995. 25 As occurred in the Tanzanian case of R. v. Parentis, [1937] Tanganyika Law Reports 208. 24 Supra note 8, at 257.POLICE INFORMERS AND AGENTS PROVOCATEURS 161 but will also reactivate the suspended sentence for the previous offence. This would not have happened but for the trap. It is not fair. It should also be mentioned in passing that even in those cases where the dividing line between a mere trap and entrapment is discernible, our courts, unlike their American counterparts, do not attach any legal consequences to the police’s failure to observe the line. All they do is to point out the unfairness of what was done without applying any sanctions to the police conduct.” Mention should also be made here that traps may be used selectively to victimize targeted groups of individuals in society that the police do not like, such as homosexuals.? It is often said that the police resort to traps only in cases of “offences so shrouded in secrecy that evidence is extremely difficult to secure in any other way,”?? or offences that are prevalent in a given locality and whose incidence needs to be checked. This is, however, not always true. AS the Clever case, involving theft from cars, demonstrates, the police often Tesort to traps as a matter of expediency and as a short-cut to their ordinary methods of work. In a separate opinion, Associate Justice Lewis made the following revealing observations: ‘Thefts from parked motor cars in crowded streets are not secret offences; they involve considerable risk of detection. ‘The fact that they are prevalent seems to be due as much to the extreme carelessness of motor car owners in leaving their property exposed and unattended in their cars, without taking elementary precautions against theft, as to anything else. I see no justification for increasing the temptation to steal, already created by careless motorists, and artificially propagating further crime by simulating the tempting situation by means of a police trap, simply on the basis put forward by Mr. Glaum that it is easier for the police to operate that way in order to secure convictions than to keep watch on cars belonging to members of the public in which articles have already been left unsecured. On that suggested basis, the matter becomes one of expediency only and not one of reasonable necessity.?8 Regarding the prevalence argument, it is contended that this in itself is no reason for resorting to traps with all their attendant risks. Ordinary methods of investigation and of bringing the culprits to justice are usually adequate. 25 See, for example, the Botswana case of R. v. Rosinah Mmamitwa, [1974-1975] Botswana Law Reports 41 at 43 where Schreiner, P., said: “No doubt a trial court is entitled to regard with a measure of suspicion a witness who has actively tempted or even persuaded an otherwise innocent accused to fall into criminal conduct. But the line between providing an opportunity for a person to commit a crime and actively persuading or encouraging him to do so may be a fine one, and it is not for the court to refuse to act on evidence which, for good reason, it believes to be true, because it disapproves of trapping or dislikes some of the police conduct in the case before it {emphasis added].” 26 See Helen Power, Entrapment and Gay Rights, 143 New Law Journal 47 (1993). 27 Glanville Williams, as cited in the Clever case, supra note 8. 28 Supra note 8, at 260.162 DANIEL D. NTANDA NSEREKO Traps who participate in the commission of the crimes in question are, prima facie, accessories or aiders and abettors, or procurers and coun- sellors. According to the laws of most of the countries of Eastern and Southern Africa, they may also ‘be charged with actually committing’ the offence.*° Again, according to the law obtaining in the region, individuals who participate in the commission of a crime with the accused but are called to give evidence for the prosecution are considered to be accom- plices. Their evidence is often taken with the utmost caution, because they have ulterior motives for testifying for the prosecution. They may exag- gerate the accused’s role, whilst minimizing their own. Again, because they were participants, there is a risk that the court may believe them even when they are telling lies. For this reason, the courts, as a matter of prac- tice amounting almost to a rule of law, require accomplice evidence to be corroborated in material particular by independent testimony, before it can form the basis of a conviction. In practice, however, police traps are neither prosecuted as aiders and abettors or procurers nor treated as accomplices; the courts do not require them to be corroborated. The reasons often given are that traps, in participating in the commission of the crime in question, lack the necessary mens rea. The other argument is that their motive is not to commit the crime but rather to secure the evidence against the principal offenders. Said Lord Parker, CJ, in Sneddon v. Stevenson: [Elven if it could be said that the [officer] was, as it were, a party to the offence, partook in the offence, he was certainly not an accomplice for the purpose of the doctrine of corroboration. ...It seems that ...though a police officer acting as a spy may be said to be an accomplice in the offence, yet if he is merely partaking in the offence for the purpose of getting evidence he is not an accomplice who requires corroboration.3! But the contention that a trap who participates in a police-arranged crime lacks the necessary mens rea is wrong in law. How can the trap not have it when he or she encourages, counsels or instigates the accused to commit the selfsame crime? The motive may not be to transgress the law per se. But the trap undoubtedly desires the crime to be committed and he makes sure that it is. He or she cannot be less guilty than a doctor who, with the motive of saving his patient from unnecessary pain, assists the patient to die. As to motive or rather lack of it, the laws of most countries of the 29 For example see the Penal Code of Botswana, Chap. 08:01, s. 21. 30 For example see the Kenyan case of R. v. Habit Kara Vesta & Anor (1934) 1 East African Court of Appeal Reports 191, where the court said that “a spy, since his complicity extends only to the actus reus and not to the mens rea is not truly an accomplice, and so does not need corroboration”. 31 [1967] 2 All E.R. 1277 at 1279 (QBD).POLICE INFORMERS AND AGENTS PROVOCATEURS 163 region do not recognize it as a defence to a criminal charge.*? So, strictly speaking, the fact that the agent's motive for complicity in the criminal scheme is to incriminate the accused cannot be a defence to the charge of aiding and abetting or procuring. Lastly, the use of traps has a tendency to infringe the accused’s right to personal liberty.>> The right to personal liberty involves the freedom of the individual going about his or her affairs and living his or her life without interference from anybody, unless he or she has done something or about to do something that is constitutionally recognized as warranting a limitation to that freedom. There is authority to limit the liberty of someone “upon reasonable suspicion of his having committed, or being about to commit, a criminal offence . . .”>4 Tempting innocent individuals into crime so that they may be convicted and incarcerated amounts to an unwarranted infringement of that individual's liberty. It also interferes with the individual's right to privacy. As was held by a Canadian court, the state “does not have unlimited power to intrude into our personal lives or to randomly test the virtue of individuals.”*° 5. JUDICIAL RESPONSES TO THE TRAP Distasteful as the use of traps usually is, can it afford an accused person a defence to a criminal charge as a matter of substantive criminal law? It can, in many American jurisdictions, provided that what was done amounted to ‘entrapment’. A crime committed by entrapment is one which is “the product of the creative activity of Government officials.”3” The theoretical basis for this defence is that it could not have been the 32 For example see the Penal Code of Botswana, s. 8(3), providing that “Unless other- wise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility”. For a similar provision, see the Penal Code of Uganda, s. 9(3). 33 For example see the Constitution of Botswana, s. 5(1), which provides that “No person shall be deprived of his personal liberty save as may be authorized by law in the following ‘cases. ..." For similar provisions see: Constitution of Namibia, art. 7; Constitution of South Africa, s. 12(1); Constitution of Uganda, art. 23(1). 34 See the Constitution of Botswana, s. 5(1)(e); also Constitution of Uganda, art. 23¢4N(b).. 35 For example see the Constitution of Botswana, s. 9; Constitution of Namibia, art. 13; Constitution of South Africa, s. 14; Constitution of Uganda, art. 27. 36 Rv, Mack, {1988] 2 S.C.R. 903. Cited by Victoria Bronstein, supra note 18, 37 Fora discussion of the law in some American jurisdictions see H. Alan Dill and Casey D. Paison, supra note 1; John E. Fennelly, Filling the Void: Another Look at Florida's Approach to Entrapment, 20 Fla. St. U. L. Rev. 631 (1993); Geoffrey Robertson, Entrap- ment Evidence: Manna from Heaven, or Fruit of the Poisoned Tree?, (1994] Criminal Law164 DANIEL D. NTANDA NSEREKO intention of Congress that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of a person otherwise innocent in order to lure them to its commission and punish them.38 What is the position in Eastern and Southem Africa? As a starting point, it should be pointed out that with the exception of South Africa,” the countries of Eastern and Southern Africa have no specific legisla- tion dealing with this problem. They generally follow the principles of the English or Roman-Dutch common law as propounded by the English or South African superior courts. Indeed, with respect to the English common law, some do specifically provide in their criminal procedure and evidence statutes for a residual reference to English law.“° However, whether English or Roman-Dutch, these principles are more or less the same. According to these principles, the use of traps, be they ‘mere traps” or ‘entrapment’ does not afford the accused a defence to a criminal charge. The reason is that when the accused commits the offence he brings about all the elements of the actus reus of that offence, accompanied by the necessary mens rea. The fact that he or she is aided and abetted, counselled or instigated to do so does not affect criminal liability. As Lord Diplock curtly stated in R. v. Sang, Many crimes are committed by one person at the instigation of others. ....The fact that the counsellor and procurer is a policeman or a police informer, although it may be of relevance in mitigation of penalty for the offence, cannot affect the guilt of the principal offender; both the physical element (actus reus) and the mental element (mens rea) of the offence with which he is charged are present in his case.4! Elsewhere the learned judge said, ‘The conduct of the police where it has involved the use of an agent provocateur may well be a matter to be taken into consideration in mitigation of sentence; but under the English system of criminal justice it does not give rise to any discretion on the part of the judge himself to acquit the accused or to direct the jury to do so, notwithstanding that he is guilty of the offence.4? Review 805; R. Park, The Entrapment Controversy, (1976) 60 Minnesota Law Review 163; Martin L. Friedland, Controlling the Administrators of Criminal Justice (1988-1989) 31 Criminal Law Quarterly 280. 38 Sorrels v. United States, 287 U.S. 435 (1932). 39 See the Criminal Procedure Second Amendment Act, Act No. 85 of 1996. 40 For example see the Botswana Criminal Procedure and Evidence Act, Chap. 08:02, s. 276. Kenya, Uganda, and Tanzania have similar provisions. 41 [1980] A.C. 402 at 432. For cases from a Roman-Dutch jurisdictions see the Rhode- sian case of R. v. Clever, Rv. Iso, supra note 8, which comes to an identical conclusion and in the course of doing so relies on several old English decisions; also, the South African case of S. v. Petkar, [1988] 3 S. Aft. L. Rep. 571. 42 (1980) A.C. 402 at 433.POLICE INFORMERS AND AGENTS PROVOCATEURS, 165 During the early part of the twentieth century, the courts in Eastern Africa (Kenya, Uganda and Tanganyika) held in a few cases that because of its intrinsic unfairness the use of traps was a defence to a criminal charge. However they soon abandoned this stance and towed the line under the English law.” Likewise, the courts in Southern Africa, while protesting the unfairness of the use of traps, consistently refused to recognize entrapment as a defence. Nevertheless, in keeping with English practice, they have taken it into account as a mitigating factor during sentencing.** Beyond this, they have not been able to do any thing for the victims of police traps, save to counsel the police not to abuse them. In this connection, Chief Justice Murison, of Zanzibar, sai It must not be denied, however, that police traps are, especially in the East, subject to abuse. The remedy for that is to stop the abuse, not the trap. Following that view, I think traps should be strictly confined to the area of cases where detection is either impossible or very difficult. They should be conducted by European agency as far as possible. The magistrate or judge who hears cases of this kind should exercise the greatest vigilance in scrutinizing the evidence given and the circumstances surrounding each step in the proceedings.*> The courts in Eastern and Southern Africa have generally played this role properly. They have insisted that the informer or trap be closely super- vised by the police — preferably senior police officers; such officers should be nearby to observe what is going on and to take into their possession the evidence obtained from the operation before it is tainted or mixed up with other things, or to arrest the accused almost ‘red handed’ before he or she has had chance to change circumstances. The police must also make sure that they search the informer or trap soon before and after the crime to eliminate possibilities or allegations of the evidence being 43 For an interesting discussion of those cases and generally of the law on entrapment in East Africa see James S. Read, How to Set a Trap and When Not To (notes on a police problem and the policy of the courts), 3 Eastern Africa Law Review 103 (1970). 4 For example see R. v. Viviers & Anor, [1966] 4S. Aff. L. Rep. 132 at 134, where ‘Schreiner, J.A., said: “No doubt the system {trapping] is liable to abuse, and the extent to which the accused’s down fall was attributable to the persuasiveness or persistence of a trap may in a proper case be given some weight when assessing the penalty”. In: R. v. Clever, R v. Iso, supra note 8 at 259 where Macdonald, J., said: “If there is any reasonable possibility that a person caught in a trap is a person who might not otherwise have offended against the law contravened, the appropriate penalty might well be a caution and discharge”. See also: S. v. Maslangho, {1983} 4 S. Afr. L. Rep. 292. 45 Ry, Femandes (1917) { Zanzibar Law Reports 564. 46 In the Tanzanian case of Daya v. R. (1944) 1 Tanganyika Law Reports 274, the police conduct of the trap was said to be inefficient as it did not observe some of these steps. Consequently the appellate court found no credible evidence against the accused and acquitted him.166 DANIEL D. NTANDA NSEREKO- planted on the accused.*” Where electronic devices are used to make audio or video tape recordings of the criminal episode, the police must ensure that this is done accurately, that there is no tampering with the tapes, that the voices or images on the tapes are clearly identifiable, and generally that the resulting evidence is reliable.*® Lastly, where the trap is paid for his services, this fact must be disclosed to the accused to enable her to test the trap’s credibility as a witness through cross-examination. Failure to disclose this information may result in a mistrial. 6. THE EXCLUSIONARY RULE It should be recalled that the major reason for resorting to traps is to Procure evidence of the accused’s involvement in crime. In the Kurwna case, originating from Kenya, the Judicial Committee of the Privy Council held that illegally or improperly obtained evidence was admissible against an accused person as long as it was relevant. “It matters not how you get it; if you steal it even, it would be admissible”. The Committee said that as long as it was relevant the court should not concern itself with how it was obtained.” The Committee, however, went on to make the following exception: No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused. ...If, for instance, some admission of some piece of evidence, e.g., a document, had been obtained from a defendant by trick, no doubt the judge might properly rule it out? Efforts were made to invoke this exception in R. v. Sang, where the accused were induced by an informer, acting on police instructions, to commit an offence they would not have otherwise have committed. The efforts unfortunately failed. According to the House of Lords, ‘Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, {a trial judge] has no discre- tion to refuse to admit relevant admissible evidence on the ground that it was obtained by 47 Tn the Botswana case of State v. Omari Salim Mwakatikara & Anor, supra note 6, the police did not search its agents before they entered the accused's premises for a drug buying trap. Because of this omission and other unsatisfactory aspects of the operation the court was not satisfied that the drugs had not been planted on the accused and it acquitted issue see R, v, Magsud Ali, [1956] 1 Q.D. 688. See also Sybil Sharpe, Covert Police Operations and the Discretionary Exclusion of Evidence, (1994] Criminal Law Review 793. 49 Kuruma v. The Queen, [1955] A.C. 197 (LCP.C.). 50 ybid., at 209.POLICE INFORMERS AND AGENTS PROVOCATEURS, 167 improper or unfair means. The court is not concerned with how it was obtained. It is no ground for the exercise of discretion to exclude that the evidence was obtained as a result of the activities of an agent provocateur.>! In response to this ruling the British Parliament enacted the Police and Criminal Evidence Act 1984, which specifically empowered a court to “refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circum- stances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” On the face of it, it would appear that the intention of Parliament was to broaden the application of the Kuruma exception to cover evidence obtained before commission of the offence, including trapping operations. However, according to the English Court of Appeal, the Police and Criminal Evidence Act has not altered the substantive rule of law that entrapment or the use of an agent provocateur does not per se afford a defence in law to a criminal charge. A purely evidential provision in a statute, which does not even mention entrapment or agent provocateur, cannot, in our view, have altered a substantive rule of law enunciated so recently by the House of Lords. Had Parliament intended to alter the substantive law, it would have done so in clear terms.5? The Court nevertheless admitted that entrapment, agent provocateur, or the use of tricks were relevant to the application of the Act. However, it emphasized that the fact that the evidence has been obtained by these methods does not of itself require the judge to exclude it. “If, however, he considers that in all the circumstances the obtaining of the evidence in that way would have the adverse effect described in the statute, then he will exclude it.”? In doing so, however, the court must bear in mind that “fairness of the proceedings” involves a consideration of not only faimess to the accused but also of fairness to the public. The Court of Appeal suggested some factors that judges should take into account in determining whether to admit or exclude evidence of a trap operation, These include: (i) whether the police agent was acting as an agent provocateur in the sense that he or she was enticing the defendant to commit an offence that would not otherwise have been committed; (ii) the nature of the entrapment; (iii) whether the evidence consists of admissions of a completed crime or of the actual commission of the offence; (iv) whether the agent played an active or passive role in obtaining 51 Supra note 41, at 437, per Lord Diplock. 22 Rv, Smurthwaite, [1994] 1 All E.R. 898 at 902 (C.A.). 53 bid.168 DANIEL D. NTANDA NSEREKO the evidence; and (v) whether there is an unassailable record of what transpired, or whether it is strongly corroborated. Tt can be seen that even with the Police and Criminal Evidence Act in place, the courts in England are slow to embrace the defence of entrapment or to agree to exclude evidence obtained as a result thereof. Neverthe- less a move in the right direction, though slow and reluctant, has been started. Jurisdictions in Eastern and Southern Africa which follow English precedents do also have their pathways in this area of the Jaw illuminated, albeit dimly. They should now move forward boldly. Most of them have constitutions with bills of rights that provide for a fair trial, the right to personal liberty and the right to privacy. With such bills of rights and the guidelines provided by the Smurthwaite case, they should now be more willing than before to exclude evidence that the police obtain by unfair entrapment tactics. South Africa and Namibia® have started to do so. Others should follow suite. A word of caution is, however, in order regarding the first factor in the guidelines provided by Smurthwaite. The courts should ensure that it was not the police trap who implanted the criminal design in the accused’s mind. They should at the same time be cautious in accepting the state’s assertions that the idea to commit the crime was the accused’s because he or she was predisposed to commit the type of crime that was committed. This assertion can be unfair, especially if in order to prove predisposi- tion the state relies on the accused’s general reputation, propensity or past convictions. The allegation implies that because the accused has a propen- sity to commit that type of offence or committed it in the past, he or she will perforce commit the offence which the police trap lured him or her to commit. This is a fallacy. Additionally, reliance on reputation, propen- sity or past convictions may also result in the accused being punished for offences with which he or she is not charged or for which he or she has already been punished. So, rather than undertake the precarious exercise of probing the accused's character, the courts in Eastern and Southern 54 For example see S. v. Nortje, [1996] S. Afr. Cr. Rep. 308 (C). Cited by Victoria Bronstein, supra note 18, at 114. 55 For example see 5. v. De Bruyn, [1992] 2 S. Afr. Cr. Rep. 574 at 580 (Nm) where Hannah, J., opined as follows: “In my opinion, any reasonable, fair-minded person would immediately recognize the intrinsic unfairness involved in a government official deliber- ately enticing or inducing some one, not otherwise predisposed to commit an offence, to commit one, and then, having done so, to turn around and instigate a prosecution against such person. Certainly such conduct would deeply offend my sense of fair play and I am prepared to assume, without deciding the question, that such conduct is so unfair that evidence gathered in such a way should be excluded on the ground that to admit it would prejudice the right of an accused to a fair trial”. Cited by Victoria Bronstein, ibid., at 116.POLICE INFORMERS AND AGENTS PROVOCATEURS 169 Africa should concentrate on scrutinizing police behaviour on a case-by- case basis. If they find such behaviour to have been outrageous, they should exclude the evidence obtained from it. Here they might take into account untoward police behaviour such as fraudulent misrepresentations, threats, coercive tactics, harassment and promises of reward. Itis true that in R. v. Sang, the English House of Lords held that it is not part of a judge’s function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial they obtain the evidence that they use at the trial. If they obtain it illegally, there are remedies at civil law that may be invoked to obtain redress against them. If they obtain it legally but in breach of police regulations, this is a matter for appropriate police authorities to handle.%® It is nevertheless strongly suggested that the courts in Easter and Southern Africa, with bills of rights to inspire them and a developing human rights culture to fortify them, should eschew their English counterparts’ attitude. They must jealously guard against being used by an overzealous executive to perpe- trate illegalities or to bring the courts or the law itself into disrepute. This approach will not only assist in doing justice to both the accused and to the state, but it will also enhance legality and respect for the law in society as whole. 7. CONCLUSION The use of traps as an investigative technique has a long history. Today the police in many jurisdictions are resorting to them more and more to detect particularly complex crimes of an organized nature and, often, of a transnational character. Note should, however, be taken of the fact that the use of traps is not specifically provided for by statute and that it invariably involves violations of the law by those whose function it is to uphold and enforce the law. Moreover, as some of the cases discussed in this essay reveal, the use of traps may be very unfair to the accused to the extent of violating his or her constitutionally protected human rights. The courts have a bounden duty as watchdogs of those rights to be vigilant and to ensure that the police in their fight against crime do not turn into monsters. University of Botswana Private Bag 0022 Gabarone Botswana 56 Supra note 41, at 436.