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In its desperate fight to prevent the advent of majority rule in Rhodesia the previous White government had decided to increase its chances of securing convictions by seriously encroaching on an accused person's so called "right to silence" or more correctly termed "right to protection against self-incrimination". This right has been with "civilized" western societies for a very long time and is generally regarded by jurists and human rights activists as hallowed, even sacred. In America the right is protected under the 5th Amendment based on English common law going back to the Magna Carta of 1215. This is understandable. History is replete with examples of oppressive governments using all kinds of means, including torture, to force incriminatory statements and confessions out of innocent people. Under pressure people will often say anything.
Under security legislation of the previous government, all kind of otherwise normal human activity such as being in a gathering, or holding meetings without permission was an offence. In such a situation the Rhodesian government needed people to talk; not assert a right to silence. The security agencies need to know what people were up to. The right to silence was a serious impediment to the effective enforcement of security laws and to securing convictions for persons engaged in the struggle, which was necessarily subversive of the status quo. So what the government did was to amend this sacrosanct law.
An accused person no longer had a blanket right to silence. After arrest he/she was obliged to explain accusations put and evidence presented. Failure to do so incurred the risk of a court, subsequently trying the person, drawing adverse inferences about the conduct of the person as an accused, greatly increasing the chances of conviction.
Certainly this amendment to the law had been brought in for bad or flawed motives.
But was the law itself bad? Is the so called right to silence still to be regarded as sacrosanct?
In my view the answer is perhaps a surprising "No".
In over 24 years of practicing in the courts as a prosecutor, magistrate, advocate and Judge it was rare for me to find a case where the obligation in itself, now cast on an accused person, to explain his conduct or evidence, could have been considered unjust or resulted in a wrong conviction.
As said Zimbabwe was, at the time, served by Judges of impeccable personal and functional integrity before whom exceptional Counsel practiced. Not once did I detect any meaningful discomfort with the procedural practice. There was certainly no expressed view that this serious erosion of the so called "right to silence" was leading to injustice in the Zimbabwean courts.
The reason is that actual experience in the Courts has shown that silence, for the sake of silence alone, without exception, benefits only the guilty. Provided that no force or any form of coercion is employed there is simply no good reason why a person should not be obliged to explain, without delay, incriminatory evidence uncovered at public expense. An innocent person has nothing to fear in saying why his/her car was seen at the scene of the crime, or why stolen goods have been found in his/her house or why his/her fingerprints are on the murder weapon ... etc.
Obviously police cannot be allowed to simply go around arresting people and interrogate them in the hope of finding incriminatory evidence. Such "fishing for evidence" certainly must be protected against; not in terms of a so called right to silence but in terms of a right to privacy, personal security and freedom from harassment.
However once society, via its investigative agencies, has found incriminatory evidence, in my respectful view, society is entitled to an explanation. Only the guilty, or those seeking to protect the guilty, benefit from an entitlement to keep mum, consult with clever lawyers and then tailor their explanations to later explain away the State case.
To my mind the blanket right to silence, as presently conceived, is in all probability founded on an understandable but convenient untruth; convenient to criminals, that the public is being protected. It is criminals and criminal conduct that are being protected.
The above is what I included in a book published in 2010. Since that date the whole World has witnessed what must be daubed as a pantomime of the highest order, screened by Carte Blanche as the "Oscar Pistorius Trial of The Century".
Right up to appeal stage the Superior Courts were still not favoured with a clear explanation of what the defence was. Instead the accused, employed a high powered legal team to serve up everything and anything that MIGHT have served the purpose of either saving a guilty accused or obfuscating the facts enough to create a reasonable doubt.
In Rhodesia/Zimbabwe Oscar would have been required on day one to set out exactly why and how he killed Reeva. On the day the trial started both the State and the Defence would have been required to set out plainly and simply what their respective cases were.
That way the Court would have been in a good position to know what the issues were, could have properly tried those issues, and the whole world could have seen and heard if justice was being done and seen to be done.
Perversely this so called "right to silence" has actually jumped up and bitten Oscar Pistorius real bad. On all the evidence it seems most probable that he killed Reeva in a situation of "uncontrollable rage", i.e, sane automatism with culpa (negligence) being present for having a gun knowing his pathological condition.
So the verdict of culpable homicide was actually correct on the "real facts". Now he is stuck with a conviction for murder because the so called "right to silence" allowed him to play silly buggers instead of properly accounting for his actions.
South Africa needs to review this issue urgently It is only serving criminality in its current form.
This blanket right is one of the main reason why the conviction rate is so very, very bad.
