A CRITIQUE OF THE STANDARD OF PROOF IN CRIMINAL CASES: THE PEOPLE V HENRY KAPOKO AND OTHERS SSP/B/52/2009 (UNREPORTED)
Nalushiwa, Diana Inonge
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This research has critically analysed the application of the standard of proof in criminal cases. The application of the standard of proof was analysed to ascertain its effects on criminal justice. The standard of proof requires that evidence in a criminal trial be so conclusive that all reasonable doubts are removed from the mind of the ordinary person. However, it has been seen from case law that this need for evidence to be so conclusive in a criminal trial sometimes leads to acquittal even when the guilt of the accused, based on the evidence, is more probable than his or her innocence. This makes it difficult to convict any but the most obviously guilty. The research was therefore conducted to determine whether the standard of proof promotes criminal justice, or hinders the purpose of criminal law to curb crime and thus helps pervert the course of justice. The research was conducted with a view of determining the effect of the standard of proof on the purpose of the criminal law to curb crime and the delivery of justice. This was achieved by analysing the case of The People v Henry Kapoko and Others as a case study. The research sought to analyse the effect of the standard of proof on the delivery of criminal justice and to determine the desirability of the criminal law standard of proof in the criminal justice system. It further sought to determine whether the strict application of the standard of proof should depend on the circumstances of each case. The investigations conducted show that the standard of proof has both positive and negative implications on criminal justice. The standard of proof ensures the protection of an accused person’s rights to liberty and to be presumed innocent and therefore ensures that the dispensation of criminal justice pays regard to the due process of law. However, the standard of proof in certain cases prevents the criminal justice from achieving its aims of crime prevention and punishment of those that indulge in criminal activity. The standard of proof sets the bar for conviction high such that in certain cases, like The People v Henry Kapok and Others, even when the evidence suggests that the accused is probably guilty, he or she is acquitted. Thus, the standard of proof at times makes it impossible to curb crime. This research was qualitative which involved analysis of both primary and secondary data. Primary data consulted were statutory provisions and case law. Secondary data consulted included published works and where necessary unpublished works relevant to the research area were consulted. There is need for a standard of proof that promotes the dispensation of criminal justice by safeguarding a defendant’s rights, but also one that helps foster the aims of the criminal justice system. The research has made recommendations for the need to have a different standard of proof for serious crimes and the less serious crimes. The same standard of proof should not be used for all crimes.
The University of Zambia