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Is the English common law doctrine of ‘presumption of innocence’ relevant in the fight against corruption?

Prof. Kenneth K. Mwenda, PhD, LLD* Extraordinary Professor of Law University of Pretoria, South Africa As the new Republican Constitution is being worked on, we are presented with an opportunity to revisit some troubling realities of applying some precepts of the English common law, such as „the presumption of innocence‟, to some white collar crimes in a developing country such as Zambia. While certain norms of the English common law percolate across much of the common law world, extending to such lands afar as Zambia, as much as certain norms of the French civil law system may be found in much of the civil law world, irrespective of the levels of development of the local or host economies, the adaptation of various laws and regulatory models imported from abroad to the local or host environments cannot be over-emphasised. As one famous English judge, Lord Denning, observed in Nyali Ltd v. Attorney General [1956] 1QB 1, at pp. 16-17, regarding the applicability of the English common law to the African continent, while sounding a warning that extended to other parts of the world,
“Just as with an English oak, so with the English common law. You cannot transplant it...and expect it to retain the tough character which it has in England. It will flourish indeed, but it needs careful tending. ...In these far off lands the people must have a law which they understand and which they respect.”

Care and Haller (see: Journal of South Pacific Law, Vol. 8, No. 2, (2004)) argue that Lord Denning‟s dictum in Nyali Ltd v. Attorney General highlights the inherent difficulty in applying the common law, developed over centuries in England, to foreign countries where very different circumstances prevail. According to Care and Haller (see: Ibid), the need to take these circumstances into account was recognised in the provisions applying the common law to new settings. Care and Haller (Ibid) point out that „in many countries it was expressed to apply, so far only as the circumstances [of the country] permit.‟

Implicit in Lord Denning‟s dictum is the notion that developing countries that import or transplant model laws from abroad to their own local environments should consider not only the „wisdom‟ of foreign technical experts from abroad, but also the local insights and peculiarities articulated by some local experts. Even more worrying is the calibre and quality of some of the so-called „foreign technical experts‟ who come to Africa riding on the surfeit of Western ideological opulence. While it is useful for law reformers or institutional reformers to be awake to developments pertaining to parallel legislation in different countries, it is also prudent to avoid falling in the chasm that clouds objectivity with subjectivity by steering clear of blind optimism stupefied in Eurocentric models of development. Law, it must be understood, does not operate or exist in a vacuum. It must be situated in its proper socio-economic and political contexts. In Zambia, like many other common law jurisdictions, the burden of proof in criminal law cases, generally, including cases of corrupt practices, lies on the prosecution. In other words, if someone accuses you of committing an offence of corrupt practices, the burden of proof requires them (i.e. the prosecution team) to prove that you have, indeed, violated the law and committed the offence in question (see: Woolmington v. DPP [1935] AC 462, as well as many Zambian criminal law cases). The general rule is that „he who asserts must prove.‟ The standard of proof here is such that the prosecution must prove beyond reasonable doubt that you have committed the offence (see: Miller v. Minister of Pensions (1947), 2 All E.R. 372). By contrast, although the burden of proof in civil law cases, like in criminal law cases, lies on the party bringing an action, the standard of proof in civil law cases is lighter and only requires the plaintiff to prove against the defendant on the balance of probabilities. All in all, the problems associated with a higher standard of proof in criminal law cases and with the requirement that the burden of proof should fall on the prosecution inevitably point to a subtle necessity that the prosecution should comprise a team of highly competent and professional lawyers and investigators if they have to get a good chance at winning the case. Notwithstanding the role played by the Task Force in Zambia, which institution I have, in two out of my many scholarly books (see: K.K. Mwenda, Legal Aspects of Combating Corruption: the Case of Zambia, (Amherst, NY: Cambria Press, 2007); and K.K. Mwenda, Anti-Money Laundering Law and Practice: Lessons from Zambia, (Lusaka: University of Zambia Press, 2005)), questioned regarding the legal pedigree upon which it operates, the Director of Public Prosecution (DPP) chambers and the Attorney-General‟s chambers, although having some well qualified professional lawyers, are understaffed. There is need to attract more lawyers to the public service. Most young lawyers prefer practicing law in some obscure small mushrooming law firms to serving in the DPP‟s or the Attorney-General‟s chambers. There are also not enough lawyers on the bench and in such public offices as the Anti-Corruption Commission (ACC). It is issues like these that pose a great challenge to the efficacy of the regulatory and institutional framework for fighting corruption in Zambia. Indeed, law policing and law enforcement arms, together with the judiciary, should be allocated more resources if they are to attract adequate numbers of well qualified people. It is worth noting that even if there are very good laws on the statute books, as long as the implementation of those laws is weak, partly due to weak enforcement and weak investigative measures, the fight against corruption will remain a pipedream. A possible way out of this conundrum, it is proposed, would be to introduce

legislative changes that shift the burden of proof from the prosecution to the accused so that the accused should now prove beyond reasonable doubt how, where and when he acquired his seemingly dubious wealth. Indeed, the accused should show that he actually amassed his wealth in a lawful and legal manner. This proposal has in it a deterrent element, and the proposal is a logical extension of section 37 of the Anti-Corruption Commission Act 1996, dealing with the issue of „possessing unexplained property‟. The idea is that the law offender and all would-beoffenders should be discouraged from ever committing corruption offences. And once the burden of proof has been shifted to the defence, it would no longer be a question for the prosecution to prove beyond reasonable doubt that the accused committed the offence of corrupt practices. Rather, the accused would have to show, beyond reasonable doubt, that he or she legally and lawfully acquired the wealth and did not engage in any offence relating to corrupt practices. But some superficial cynics might express fear that the State could choose to unleash State machinery on its political opponents under the guise of adhering to the legislative proposal spelt out above. Be that as it may, what should one fear if he or she has not stolen? All you need to do is demonstrate that you have not stolen. Period! In matters of taxation, it is common practice to find legal obligations akin to the proposal spelt out above. The same analogy should be extended to matters of corruption and money laundering. Also, we need to understand the link between corruption and money laundering in order to move away from relying principally on the Penal Code which only points us to simple criminal charges of „theft‟. Admittedly, if implemented, the proposal to shift the burden of proof from the prosecution to the accused would attract strong criticism. But, we are awake to this fact. A notable criticism here could be that implementing such a proposal would have disastrous effects on the rule of law and the constitutionally guaranteed presumption of innocence. Unfortunately, there is a little water in this argument. In some cases, however, especially where the drafting of legislation is not carried out properly, or where there is no due regard to the full spectrum of provisions of the Republican Constitution, the shifting of the burden of proof from the prosecution to the accused could be struck down by the courts (under judicial review of legislative action) as an unconstitutional measure. But, then, what does Lord Denning tell us about importing precepts of the English common law to foreign lands afar? And is it not a precept of the law that to every general rule there is usually an exception? Indeed, what wrong would there be in enshrining in the Republican Constitution, especially in the Bill of Rights itself, an exception to the general rule, stating therein, unequivocally and explicitly, that notwithstanding whatever is contained in the Bill of Rights, the exception to the presumption of innocence applies only to offences relating to, say, corrupt practices, money laundering and/or drug trafficking? To illustrate, the European Court ruled in a matter involving continued pre-trial detention that such detention can only be justified „if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty‟ (Van der Tang v. Spain, (26/1994/473/554), July 13, 1993, para. 55). Why then should we shy away from the proposal highlighted above if we really mean well in the fight against corruption? A second proposal for law reform would be to lower the standard of proof in criminal law cases of corruption from beyond reasonable doubt to the civil law standard of balance of probabilities. Such a measure would remove the onerous and strenuous task on the prosecution – especially

given that law policing and criminal investigation offices in Zambia are understaffed and have limited resources at their disposal – to prove beyond reasonable doubt that the accused committed an offence relating to corrupt practices. Indeed, there are a number of cases in Zambia where an individual cannot even account for the wealth he or she has amassed over a relatively short period of time. Zambia has seen a number of poverty stricken individuals enter politics and suddenly emerge as some of the wealthiest citizens of that country. Whether we choose to stretch our own imagination of who should be deemed a „public officer‟ and who should not be seen as a „public officer‟, despite such persons enjoying certain immunities against prosecution while in office, and which immunities can only be enjoyed by someone designated in a certain „public official‟ capacity, we have a chance to change the course of the future through some legislative re-engineering. Our aim, thus, should be forward-looking, rather than seeking vendettas or trying to settle scores against those perceived to have committed some irreparable public wrongs as evidenced in their past machinations and mischievousness. When the great Maradona scored through that infamous „hand of god‟ against England, many thought that FIFA would reverse the referee‟s ruling. But it was clear that, whether by design or by default, the referee had already ruled in favour of a goal – the same goes with the courts of law! While court appeals can sometimes work, we are here faced with systemic and endemic corruption in society. Time and again, we have seen one cowboy rise up against a fellow cowboy, despite the fact that they both could have been raiding the cornfields together just the other day. We must understand that cowboys only draw guns at each other when they differ or disagree over matters such as how to share the loot. As one fictitious fable would show: “You promised me the Presidency, and I was loyal to you… But, then, you dribbled me and gave the Presidency to someone else! I will never forgive you for that!” Such politics of personal vendettas, which disenfranchise both the villain and the victim from receiving Holy Communion at Church on Sunday, is what is drawing Africa backwards to the era of primitive politics. This is politics of the stomach! Why do some people feel that they are entitled to public office? Is there no retirement in African politics? But that is not to say those already in power should tell lies and deceive their followers that they will hand them the helm of power. The Machiavellian style of political leadership is not always the best option of maintaining political legitimacy. To that end, even NGOs and some opposition political parties must account to their membership and to other stakeholders on how they have utilized much of the donor funds that they have either received or continue to receive from various sources. Those who live in a glass house should not throw stones otherwise things might boomerang at them. Let us not only focus on the one „mai-kalange‟ and his famed mai-kalange fairytale. He will outfox his critics again if they are not careful, and thereafter go on to claim more anointments as long as the critics remain obsessed with trying to bring him down! Looking to the future, as a pro-active measure, it is best instead to develop sound legislative, regulatory and institutional capacities to deal with corruption in the long-term. As such, the past will only be useful in informing the present for a better tomorrow. However, given the rigidity in the law, insisting on the presumption of innocence as an absolute and fundamental right, and requiring that „he who asserts must prove‟ beyond reasonable doubt, some ostensibly corrupt individuals have never been charged or prosecuted. And where prosecutions have been instigated, these individuals have often been acquitted. So, then, as one non-native English speaker would put it: “What to do now?”
*The interpretations and conclusions expressed in this paper are entirely those of the author. The author is Extraordinary Professor of Law at the University of Pretoria, South Africa. He is also a Certified Anti4

Money Laundering Specialist (CAMS), with additional qualifications in anti-money laundering from the International Compliance Association in the UK. For feedback on the article, the author can be reached electronically at: