Save 20% off! Join our newsletter and get 20% off right away!

Right to silence: analysis of the legal protection on the privilege against self-incrimination

This paper will try to debunk the maxim “nemo tenetur seipsum accusare,” which means “no man is bound to accuse himself”. In doing so, the paper will analyze the scope and the implication of the right against self-incrimination as has been examined in different contexts, its impact on criminal proceedings and its waiver thereof. 

  1. General provisions

An arrested person primarily has the right to be informed of their right to remain silent and the consequences of not doing so.[1] The right to remain silent is a corollary of the freedom from self-incrimination. An arrested person has the discretion to remain silent if their responses might jeopardize them. The right against self-incrimination encompasses privileges such as attorney-client privilege, spousal privilege, among others. This right is primarily concerned with respecting the will of an accused person to remain silent. Suffice to note that silence is not an admission of guilt.

Furthermore, an accused person has a right to fair trial which incorporates the right to be presumed innocent until otherwise proven,[2] the right to remain silent by not testifying[3] and the right not to give self-incriminating evidence.[4]

The right to a fair trial was designed to protect individuals from arbitrary and unlawful deprivation of rights to life and liberty. This position has also been emphasized in the International Convention on Civil and Political Rights (ICCPR); under article 14(3) (g), one is guaranteed that in the determination of any charges against them, they are entitled not to be compelled to testify against themselves or to confess guilt. This means that they have the right to remain silent with no adverse inferences being drawn. Flowing from this is the right of an accused person to tender unsworn testimony so as not to be examined by the prosecution, where they may give contradictory evidence, which would work against them. Besides, they are also protected from the illegal acquisition of evidence.

The prosecution bears the burden of proving the accused person’s guilt. Logic then demands that it is not incumbent upon the defendant to adduce evidence of any kind during the proceedings, they do so of their own volition. Even in instances where the accused person alleges an alibi, it is the duty of the prosecution to investigate the alibi defence and disprove it where necessary.

Moreover, Article 47 of the Constitution posits that a person is entitled to an administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair[5]. Hence the court intervenes where the authorities have abused power, acted in bad faith and against the spirit of the constitution. The right to fair trial is an absolute right which cannot be limited whatsoever under Article 24. [6] In Johnstone Muthama v DPP &2 others, the court declared section 96(a) of the Penal Code unconstitutional on the basis that it shifted the evidentiary and legal burden of proof to the accused violating Article 25, 49 and 50 (2).[7]

  • Scope of the right

The right only extends to individuals or natural persons. Artificial persons such as companies and corporations are not protected by it unless it is a sole proprietorship. However, the privilege is not applicable to civil records kept for administrative purposes.

The right against self-incrimination applies to testimonial and communicative evidence during police interrogations and legal proceedings. These rights inhibit the prosecution, in a bid to prove their case, from seeking recourse to illegally obtained evidence. The privilege not only foresees giving self-incriminating evidence but also evidence illegally acquired by coercion and other means.[8] It protects against compulsory oral examination for the purposes of extorting unwilling confessions or declarations implicating the accused in the commission of the crime. In the case of Richard Dickson Ogendo & 2 others v Attorney General & 5 others Justice Majanja found that an accused person’s right against self-incrimination encompasses giving oral or documentary testimony against himself or herself. Moreover, the purpose of this protection is to protect the accused person from giving information that has been obtained through coercion or unfair means.[9]

On documentary evidence, the right applies in an exclusionary manner. It challenges the admissibility of illegally obtained evidence. In RC v KKR [2021],[10] the court held that illegally obtained evidence cannot be admitted in a divorce petition or in any civil dispute if the admission of such evidence would amount to a violation of the bill of rights and will curtail the fairness of the trial or will be detrimental to the administration of justice. The rights of suspects are protected at the pretrial stage from authorities acting in bad faith, abusing power or acting illegitimately.

  • Limitations of the right

The right not to self-incriminate is not absolute; it can be limited by a statutory provision. It is pertinent to note that the right does not protect an individual from providing evidence, but instead, protects the accused from being forced to do so. It only protects an accused from being compelled to testify against himself, by giving self-incriminating evidence of a testimonial or communicative nature. The right does not extend to the use of compulsory powers such as the acquisition of documents acquired pursuant to a search warrant, the collection of samples ie, breath, blood, urine and bodily tissue for the purpose of DNA testing. In Schmeber v Califonia (1966) [11] The privilege against self-incrimination is not available to an accused as he was not compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature as was provided for in the Fifth Amendment. Another limitation of this right is also pursuant to the doctrine of required records. 

  • Doctrine of required records

The doctrine was developed to ensure that businesses and individuals maintain accurate records of their financial undertakings. This was meant to ensure compliance with laws such as tax laws. The doctrine of required records, as established in Shapiro v United States[12] stated that the government is allowed to call for individuals to maintain records of certain kinds of documents that could be subpoenaed or acquired without invocation of the privilege. It was further developed in US v Sullivan[13] where it was held that the doctrine does not violate the privilege against self-incrimination as persons are not compelled to testify against themselves but are required to give documents already in existence for inspection. 

In Kenya, the doctrine is embedded in various laws such as the Income Tax Act, which requires taxpayers to keep records of all income expenses, assets and liabilities for at least five years from the end of the tax year to avoid penalties or fines. In the case of Okiya Omtata Okiti v AG and another[14] the court stated that the doctrine is a regulatory framework by the government on business, to ensure conformity with legal requirements.  

  • Waiver of the right

The presumption of innocence and privilege does not obviate a witness from invoking it as the evidence may be used against them. Defendants and witnesses may assert their right not to self-incriminate in civil trials, if the testimony would open criminal charges against them. When they give too much evidence, they are presumed to have negated their privilege; they cannot then assert the privilege during cross-examination. Rationale held is that unless the information being sought can incriminate the witness beyond testimony already given voluntarily, the privilege against self-incrimination is presumed waived. Furthermore, the privilege against self-incrimination is considered waived if the testimony already given by the witness requires further fact and evidence. However, they both fail to provide clear standards for witness or counsel in determining testimony and fact linkages which may cause the court to invoke the waiver. Therefore, there is a need for informing the witness that the making of certain statements can lead to a waiver requiring additional statements about related matters.  Failure to explicitly claim immunity presupposes that they have waived the right in totality.

  • International perspective
    • European convention for the protection of human rights and fundamental freedoms (the ECHR)

The European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR)[15] posits in Article 6(1) that everyone has a right not to incriminate oneself. The European Court of Justice in Saunders v United Kingdom[16] explained the policy rationale, constitutional objectives and contours of the right to refuse to give self-incriminating evidence. The right against self-incrimination lies in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and the logic behind Article 6. The right not to incriminate oneself in particular presupposes that the prosecution in a criminal case should seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused.

It is, therefore, safe to allude that the privilege against self-incrimination is a procedural right that depends on other entitlements to operate effectively. From the investigative to the pretrial stage,[17] the constitution guarantees the right to silence, right not to give self-incriminating confessions or admissions and interdict the admission of illegally obtained evidence at trials. A defendant has the right not to testify, hence cannot be coerced to do so, in the event that they choose to testify, they have the discretion of cherry picking what to answer and what not to answer. All these is in the spirit of attaining a fair procedure.

  • Other jurisdictions
    • South Africa

Section 35 of the Constitution of South Africa assures that detainees or accused persons have the right to be deemed innocent until otherwise prove, the right to remain silent during plea proceedings or during the trail, to not testify at all during the trial. All these are procedural.

It flows from the investigatory stage, pretrial stage, trial stage up to the sentencing stage. The constitutional court of South Africa in the case of S V Boesak[18] held that, although an accused person is not required to testify during the trial, that does not mean there are no repercussions if they choose to remain silent. A court may be permitted to get to the conclusion that the evidence is adequate to establish the guilt of the accused if there is evidence that requires an explanation but the accused chooses to keep mute in the face of such evidence[19].

  • United States of America

In the USA, the right against self-incrimination is commonly referred to as the ‘Fifth Amendment’ and one can infamously plead the fifth. The amendment states that no person “shall be compelled in any criminal case to be a witness against himself.” The Miranda rights lays a basis for the fifth amendment clause protecting individuals from being compelled into giving evidence against them in a criminal proceeding. The Miranda warnings are based on the Miranda v Arizona[20] case where the sentence against the defendant was set aside on grounds that he had not been informed of his right to remain silent, of his right to have a lawyer, or of the fact that any of his statements during the interrogation could be used against him in court.[21]

The privilege only protects natural persons. Artificial entities such as companies and corporations do not enjoy such privilege. An individual can be compelled to produce corporate documents even if doing so is detrimental to them.

The privilege against self-incrimination is limited to testimony.[22] It does not extend to physical evidence. Defendants can be compelled to give hair samples, blood samples, and other bodily fluids. They can also be compelled to produce writing samples among other things. These are governed by the rules on searches and seizures, rather than those governing self-incrimination.

The court acknowledged that the distinction between “testimony” and “real or physical evidence” is not always easily drawn. The court stated that to compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. The Court, however, did not find any of the same concerns in the blood test under consideration.

A compellable witness is under obligation to provide information and not to incriminate himself. They have the discretion to admit, deny or refuse to answer. If a witness fails to explicitly assert his privilege, they are deemed to have waived it. If they start giving evidence, they are not protected from cross-examination. However much they assert innocence, their evidence can be used against them in consequent proceedings.

  • United Kingdom

In the UK, the right is protected by common law and by the European Convention on Human Rights (ECHR), Article 6.[23] The court in Blunt v Park Lane Hotel[24] stated that no one is bound to answer any question if the answer thereto would have a tendency to expose them to any criminal charge or penalty, or forfeiture which they are reasonably likely to be referred or sued for. The court further stated that the rule applies to oral evidence, interrogatories and the discovery of documents.[25]

The right is not absolute, as a suspect may be required to give evidence in certain circumstances, although they can still invoke their right to remain silent. The European Court of Human Rights while overturning the decision by the UK courts held that the rights apply to questioning in police custody.[26]  

6. Conclusion

The right against self-incrimination remains to be one of the most misunderstood, disreputable, and controversial constitutional right. As much as it is commonly referred to as the privilege from self-incrimination, it has its roots in the Constitution hence should be accorded the same respect as other rights. The right is interrelated with interests in the preservation of the criminal justice system, preservation of the judicial system, preservation of privacy, liberty and dignity of a person, they then cannot work in exclusion. 

Despite the creation of the Independent Police Oversight Authority (IPOA) to provide oversight over police conduct, there have still been instances of police misconduct during investigations, torture and even ill-treating the suspects.  With the wave of demonstrations all over the country, arrests are then done in the heat of the moment. What lingers in the air is; were the matters conducted lawfully? The requirement that arrested persons should be so informed of their rights, however, does not imply that technical terminology should be used.

Therefore, for the service of justice and protection of the fundamental right of an individual, the privilege against self-incrimination should be respected. Legitimate reasons for overlooking the right, which must be construed narrowly, should be in tandem with national security and public safety.

* Atieno Mitchel is a third-year LL.B student at the University of Nairobi. She can be reached via email address atienomitchel718@gmail.com


[1] Article 49(1) CoK, 2010

[2] Ibid art 50(2) (a)

[3] Ibid art 50(2) (I)

[4] Ibid art 50(2)(l)

[5] Ibid art 47

[6] Ibid art 24

[7] Johnstone Muthama v DPP &2 others; Japheth Muriira Muroko(interested party) petition no 430 of 2015. The phrase “the burden of proof whereof shall lie upon him” as used in section 96(a) of the Penal Code shifted the burden of proof to an accused person before the basic facts had been established by the prosecution.

[8] Guide on article 6, right to fair trial, ECHR.

[9] Richard Dickson Ogendo & 2 others v Attorney General & 5 others [2014] eKLR, Courts have dealt with taxability of illegal income as well as arising issues such as deductibility of expenses incurred in the process of income generation, how it relates with the right against self-incrimination and the role of tax law in reinforcing the criminal justice system. However, as much as taxation of such income may reap benefits, caution must be exercised in order to protect the right against self incrimination.

[10] RC v KKR [2021] eKLR. The court argued that whereas the use of private investigators is permissible in law, the manner in which the investigators carry out their duties and gather evidence must be in tandem with the Constitution and the law. The conduct of secretly mounting CCTV cameras and recording devices in order to record another person’s private conversations and movements, unless legally permissible, is not only uncouth, but also least expected in this constitutional dispensation. Such conduct amounts to an outright infringement of one’s privacy and dignity.

[11] Schmeber v Califonia (1966) A report  of the chemical analysis of the accused’s blood, which indicated intoxication, was admitted in evidence over objection at petitioner’s trial for driving while intoxicated. Petitioner was convicted and the conviction was affirmed by the appellate court which rejected his claims of denial of due process, of his privilege against self-incrimination, of his right to counsel, and of his right not to be subjected to unreasonable searches and seizures

[12] Shapiro v United States, 335 US (1948) The Supreme Court held that the Fifth Amendment privilege did not apply to certain private papers that the law required a person to keep.

[13] US v Sullivan (1853).

[14] Okiya Omtata Okiti v AG and another [2020] the court held that as much as citizens are entitled to access to information from the government, appellants could not rely on information obtained in unclear circumstances hence, there was no need or room to use irregular methods in obtaining information

[15] ECHR Art 6

[16] Saunders v United Kingdom A/702 (1997) 23 EHRR 313 

[17] TOWARDS THE REALIZATION OF THE PRIVILEGE AGAINST SELFINCRIMINATION: CHALLENGES AND PROSPECTS, Amanya Cohen

[18]  S v Boesak (2001)

[19] Ibid 

[20] Miranda v Arizona[ 1966]

[21] Miranda V Arizona (1966)  the appelant was  interrogated by two police officers for two hours, which resulted in a signed, written confession. At trial, the oral and written confessions were presented to the jury. Miranda was found guilty of kidnapping and rape and was sentenced to 20-30 years imprisonment on each count. On appeal, the Supreme Court of Arizona held that Miranda’s constitutional rights were not violated in obtaining the confession.

[22] Ibid n 10.

[23] Ibid n 9

[24]  Blunt v Park Lane Hotel Ltd [1942] 

[25] Ibid

[26] John Murray v UK (1996)

Avatar
Guest author The Platform Magazine