WITNESSES

Objectives
By the end of this unit, you should be able to:

1. Explain competence and compellability of witnesses.

2. Explain the special classes of witnesses’ testimonies which require some

3. Explain authentication of testimonies and explain the importance and the value
of oaths and affirmations.

4. Explain the process of examining of witnesses in court.

Introduction
Under this topic, you learn about witnesses as a source of evidence known as a

testimony. Witnesses are the major media by which evidence is brought to court. A

testimony is an assertion of a witness in court offered as evidence of the truth of that

which is asserted. A discussion on witnesses helps you understand the weight that the

court will attach to evidence adduced by witnesses as well as identify and prioritise the

witnesses that you want to present to court and in what order. Some of the important

considerations you will learn in this unit include: competence and compellability of

witnesses, the nature and importance of oaths and affirmations, credibility and reliability

of witnesses as well as the instances when the court must decide whether or not

corroboration of evidence will be necessary by law or practice.

Choice and Order of Calling Witnesses

1|Page
In an adversarial legal system, parties generally have the autonomy to decide which

witnesses to call and in what order, particularly in civil cases. However, this principle

does not fully apply in criminal cases. Here, the court may limit the prosecutor’s

discretion, as the prosecutor’s primary duty is to ensure justice. This obligation may

require the prosecutor to present any evidence they encounter that supports the

accused’s innocence. The court also has the authority to dictate which witnesses must be

called.

In Fraser v The People (1968) ZR 93 (H.C), the court held that while the prosecution has the

discretion to call witnesses, it must do so in a manner that serves the interests of justice

and is fair to the defense. If this discretion is misused, the court may call the witnesses

itself.

This was reinforced by Lord Denning M.R. in Dallison v Caffery [1964] 2 All ER 610,

where he stated that a prosecuting counsel must either call credible witnesses or make

their statements available to the defense if such evidence supports the accused’s

innocence. Concealing such evidence is considered highly improper. If a witness is

deemed non-credible, the prosecutor should still inform the defense.

Similarly, the Supreme Court of Zambia in Abel Banda v The People (1986) ZR 105,

emphasized that although prosecutors are not required to present all known evidence,

they must inform the defense about credible witnesses who may support the accused’s

innocence.

Competence, Compellability, and Privilege of Witnesses

Once a party has selected witnesses and determined their order of testimony, it is crucial

to assess their competence. Some witnesses may be disqualified from testifying, while

others may hold privilege, making them exempt from compulsory testimony. In general,

most individuals are both competent and compellable, subject to specific exceptions.
2|Page
Competence
Competence refers to a witness's legal qualification to give evidence. Most individuals

are considered competent, but there are restrictions based on factors such as interest,

prejudice, or capacity. Judges may raise objections to a witness’s competence either

before or during the testimony, and incompetent testimony may be excluded from the

record.

Competence Due to Capacity

 Mental Impairment: A person deemed of unsound mind or intoxicated may not

be competent to testify if their condition prevents them from understanding the

nature of an oath or giving rational evidence. However, a person with a mental

disorder may still be competent if their condition does not impair their ability to

tell the truth at the time of testimony.

 Children: The competence of children as witnesses depends on their intellectual

ability to understand the oath and the consequences of lying. Courts conduct a

voire dire—a preliminary examination—to assess a child’s competence. In Zambia,

Section 122 of the Juveniles Act mandates that children under 14 must possess

sufficient intelligence to testify under oath.

Witnesses with Interest in the Case Outcome

 Accused Persons: The accused in criminal proceedings is not a competent witness

for the prosecution but may testify for their defense (Section 157 of the Criminal

Procedure Code).

 Spouses: Historically, spouses were deemed incompetent to testify against each

other, except in cases of personal violence or treason. While the Criminal

Procedure Code makes a spouse a competent defense witness, they are not

compellable concerning matrimonial communications. The Juveniles Act also

allows spouses to testify in certain offenses involving children.

3|Page
  Accomplices: An accomplice may testify for either the prosecution or the defense.

However, the court requires corroboration of accomplice testimony presented by

the prosecution.

Compellability
Compellability refers to the court’s power to force a witness to testify. Generally, all

competent witnesses are compellable, with certain exceptions due to privilege or public

policy. Courts may issue subpoenas or arrest warrants to compel testimony. Failure to

comply may result in penalties such as fines or imprisonment.

Privilege
Some witnesses may refuse to testify due to privilege, which protects them from being

compelled to disclose certain information. Privilege can apply to the witness or the

evidence itself. For instance:

 Sovereign Immunity: Foreign states and their agents are immune from being

compelled to testify.

 Public Policy: Certain evidence may be excluded if its disclosure would harm

national interests. However, courts must weigh the public interest against the

need for full disclosure to ensure justice. Privilege may be waived, but public

interest immunity is absolute and owed to the state.

The courts must carefully balance these considerations when deciding whether to admit

or exclude privileged or public policy-based evidence. The decision often requires a

thorough examination of the document in question before it is admitted. For example, in

Heuff v Mbewe (1965) Z.R. 111 (S.C.), the court ruled that state documents could be

withheld if their disclosure was contrary to public policy.

4|Page
Bankers
Bankers are typically not considered compellable witnesses when it comes to disclosing

account information if the bank is not a party to the legal proceedings. However, an

exception exists: bankers can be required to reveal account details under a court order.

This is governed by the Evidence (Bankers Books) Act, Cap 44 of the Laws of Zambia,

particularly Sections 6 and 7.

Legal Professional Privilege

oral or written—made between themselves and a client in professional confidence

without the client’s express consent. This privilege is meant to protect the client and

encourage free communication between them and their lawyer. Only the client can

waive this privilege, not the lawyer. Moreover, the privilege applies even if no formal

retainer exists, as long as the client sought legal advice. It remains in effect indefinitely,

even after litigation has concluded.

This doctrine, grounded in common law, allows the client to maintain confidentiality

over:

1. Communications between the lawyer and client, including both oral and written

legal advice.

2. Any communication made during the course of the lawyer-client relationship or

with the intention of forming such a relationship.

3. Communications between the lawyer, client, potential witnesses, drafts, and

materials prepared in anticipation of litigation.

The privilege also covers: 4. Items enclosed or referenced within such communications.

However, the protection does not extend to:

5|Page
 1. Facts observed by a lawyer during the course of their relationship, such as

handwriting, the client’s condition, or the identity of a convicted client in an

unrelated case.

2. Pre-existing documents not prepared specifically for litigation, even if legal advice

was sought on them.

3. Communications intended to facilitate a crime.

4. This privilege is continuous, even after the termination of the lawyer-client

relationship. It also applies to law firm staff such as secretaries and assistants.

However, the privilege does not cover individuals who overhear a conversation

or obtain a document unlawfully—they may be compelled to testify or produce

the document. Once waived by the client, the privilege cannot be reinstated.

Without Prejudice Communication

being presented in court if they are made "without prejudice," meaning the parties retain

the right to withdraw from the positions taken in these discussions. The term "without

prejudice" implies that these communications do not harm or affect the legal rights of the

parties involved.

The purpose is to encourage settlement negotiations, allowing parties to make

concessions without admitting liability. Such communications, marked "without

prejudice," cannot be forced into court during litigation. The rule of law enables parties

to negotiate freely, even when making concessions, without worrying that their

statements will be used against them if the settlement fails. These communications

remain privileged even after a settlement is reached unless the party waives the

privilege.

The Supreme Court of Zambia affirmed this principle in the case Lusaka West

Development Company Limited, B.S. K. Chiti (Receiver), Zambia State Insurance

6|Page
Corporation v Turnkey Properties Limited S.C.Z. Judgment No. 1 Of 1990, stating that

"without prejudice" communications are inadmissible in court based on public policy

considerations, as they protect genuine settlement negotiations. This rule also applies to

court-annexed mediation under Order 31 Rule 10 of the High Court Rules, Cap 27 of the

Laws of Zambia.

Matrimonial Communications

Spouses are not obligated to disclose communications exchanged during the marriage,

and this rule continues to apply even after the marriage is dissolved. This protection is

stipulated in Section 157(iv) of the Criminal Procedure Code, Cap 88 of the Laws of

Zambia.

Incriminating Information
A witness is protected from answering questions or producing documents that could

make them criminally liable. Exceptions arise if the statute of limitations has expired, a

penalty has been waived, or the witness has been convicted or acquitted. Section 157(vi)

of the Criminal Procedure Code, Cap 88 of the Laws of Zambia, prohibits asking a

person charged as a witness any questions that could reveal their involvement in other

offenses, unrelated to the current charge.

This provision is clearly applied in criminal cases to prevent abuse of power during

interrogations by authorities, reinforcing the Constitutional right to the presumption of

innocence until proven guilty, as outlined in Article 18 of the Constitution of Zambia,

Cap 1.

However, the issue becomes more complex in civil proceedings. During discovery,

parties may declare documents, and privilege claims can be asserted. Similarly, a witness

subpoenaed to testify or produce documents can claim privilege. In Blunt v Park Lane
7|Page
Hotel [1942] 2 KB 253, Goddard LJ stated that "no one is bound to answer any question if

the answer would, in the opinion of the court, have a tendency to expose them to any

criminal charge or forfeiture that the judge regards as reasonably likely."

Statutes
Criminal Procedure Code, Cap 88 of the Laws of Zambia, 143 – 148; 150; s.157 (vi)

High Court Act, Cap 27 of the Laws of Zambia, Part VII; Order 31 rule 10 High Court
Rules.

State Proceedings Act, Cap 70 of the laws of Zambia, Section 25(1) Subordinate Court
Act, Cap 28 of the Laws of Zambia, Part VIII

Case Law
Abel Banda v The People (1986) ZR 105

Asiatic Petroleum Co. Ltd v Anglo-Persian Oil Co. Ltd [1916] 1 KB 822 AT & T Istel v
Tully & Others [1992] 3 All ER 523

Attorney-General v Mwaba (1975) Z.R. 218 (S.C Blunt v Park Lane Hotel [1942] 2 KB 253

Dallison v Caffery [1964] 2 All ER 610

Daniel Chizoka Mbandangoma and The Attorney- General (1977) Z.R. 334 DPP v Hester
[1972] 3 All ER 1056 at p 1059

Heuff v Mbewe (1965) Z.R. 111 (S.C.) Fraser v The People (1968) ZR 93 (H.C) Katebe v
The People (1975) ZR 14

R v Goodway [1993] 4 All ER 894) R v Kemble [1990]3All ER 116

Shamwana & 7 others v The People (1985) ZR 41

The People v Mushaikwa (1973) ZR 161Manyepa v The People (1975) Z.R. 24 (S.C.)

8|Page
9|Page