Under common law, it is recognised that if a party to court proceedings seeks discovery of certain documentation or the giving of certain evidence by a witness the State has a right to object to the production of this evidence in the course of a court case on the grounds that the giving of such evidence would be contrary to the public interest. A State privilege claim is a claim made by the State that certain evidence should not be produced because it would prejudice the public interest if it is so produced. Using State privilege, the State may seek to prevent the production of documentary evidence or the giving of oral testimony by a witness. Such a claim can be made in any court case, whether or not the State is a party to those proceedings. If it is a party to the proceedings (as where the State is being sued or the State has brought a criminal prosecution against someone) and the other side requests the discovery of certain documents or the giving of testimony by a certain witness, the State may seek to prevent such evidence from being elicited on the grounds of State privilege. So too, the State can intercede in a civil action between two private citizens in order to try to prevent the eliciting of certain evidence which one side is wishing to have produced, if the State believes that the production of such evidence would adversely affect the public interest.
A State privilege claim can either be a content claim, that is, a claim that the contents of, say, a particular document are such that it would prejudice the public interest if those contents were to be disclosed in a court case; or a class claim, this is a claim that it would prejudice the public interest if documents falling into a particular class were to be disclosed in court.
A State privilege claim must be made in proper form. By this is meant that it must be made by the head of the relevant Ministry, that is, by the Minister or by the head of the department, duly authorised by the Minister. The claim must be made in the form of a sworn affidavit that the Minister, or a person duly authorised by the Minister, has acquainted himself with the information or documents in respect of which the State privilege claim is being made and has satisfied himself that disclosure of such information or documents in a court case would be prejudicial to the public interest. Thus, where privilege is claimed in respect of a whole series of documents, the Minister must have scrutinised all of the documents concerned in order to have made a determination that each and every one of those documents fall into a class of documents in regard to which class there are valid grounds for claiming privilege. If the claim is not made in proper form, the court will order the claim to be so made before it proceeds to consider the merits of the claim itself.
Once the claim is made in proper form, the question arises as to whether the court is obliged simply to uphold such claim or whether it has the power to examine the claim and to order the production of the evidence if it considers that the claim is not justified.
In a civil matter, evidence excluded consequent upon a State privilege claim may be vital to the proof of the claim by the litigant against another private individual or the State. In a criminal case, even more drastic consequences can ensue if evidence is withheld on the basis of a State privilege claim. The excluded evidence may be pivotal to the successful advancement of some defence and thus an accused might be convicted, whereas if the evidence had been available, he might have been acquitted.
Previously in both criminal and civil cases, it was provided that when dealing with claims for exclusion of evidence on the ground of public policy, the Zimbabwean courts were enjoined to follow English law as applied by the Supreme Court of Judicature as at 1 June 1927.
When we look at what the English law lays down on the matter of Crown privilege, we see that, at first, the position was that the courts saw themselves as obliged to uphold at face value any Crown privilege claim and they considered that they had no capacity to examine whether the claim was justified by evaluating the merits of the claim and deciding whether or not in fact the disclosure of the information would lead to harm to the public interest.
This was the position adopted by the House of Lords in the case of Duncan v Cammel, Laird & Co AC 624 (HL);  1 All ER 587. In that case a submarine built by the admiralty sank while on trial. P was the widow of one of the drowned sailors. She brought an action for negligence. She sought the discovery of certain plans relating to the submarine. The admiralty withheld the documents and claimed state privilege.
Later, however, in the case of Conway v Rimmer  AC 910 (HL);  1 All ER 874. , the House of Lords ruled that the decision in the Duncan case was incorrect insofar as it laid down that the court has always to accept without question a properly made Crown privilege claim. Instead, it said the correct position was that when faced with a Crown privilege claim the court always has a residual discretion to examine the merits of the claim and decide whether the claim is justified; it does not have to accept the claim at face value. Where it is felt to be appropriate, the court can order the production of the documentary evidence to the judge trying the case so that he can scrutinize that documentation and decide whether to uphold the claim or to order the production of the documentation in court.
In Burmah Oil v Bank of England (1980) AC 1090 the British Government claimed privilege for certain documents which it said related to its economic policy in response to the oil crisis. It said that Government had obtained the economic information in confidence from business companies and businesspersons. If it had to disclose these it would have difficulty in obtaining such information in future. The House of Lords inspected the documents in respect of which privilege was been claimed and concluded after doing so that they did not contain material which was necessary for a fair consideration of the case. The court made it clear that it could inspect the documents in order to decide on how to balance interests and to decide whether disclosure is necessary for a fair trial.
In certain cases, it may be quite obvious from the very nature of the claim that it should be upheld without the judge needing to examine the documents himself. This would be the case where the documentation relates to high-level matters of State such as Cabinet minutes, military secrets and delicate diplomatic negotiations.
The Conway case also made it clear, however, that it would not uphold claims made in respect of low level, routine documentation passing between junior civil servants. Essentially, what the Conway case lays down is that the English courts will evaluate the likely harm which would ensue if the evidence is produced in court and balance that against the harm to litigant’s case which will be caused by the exclusion of the evidence and decide whether, on balance, the claim should be upheld in the public interest.
Based upon the relevant statutory provisions and on general considerations of public policy, it would seem to be clear that the Zimbabwean courts should follow the Conway case. (Even though the law to be applied was that as at 1st June, 1927, as Conway ruled that the Duncan case was wrong, the correct law applicable in 1927 was in fact that laid down in Conway.)
There was, however, a conflict in Zimbabwean law on this point. There were a number of cases, including one after the Conway decision that followed the Duncan case. These are ex p Zelter 1951 (2) SA 54 (SR); Taylor v Prime Minister & Minister of Internal Affairs 1954 (3) SA 956 (SR); Faber v Barrow (1) 1963 (1) SA 422 (SR) and ARNI v Brookes (1) 1972 (1) RLR 144 (G).
On the other hand, in the case of Holman v Lardner-Burke NO 1968 (2) RLR 57 (G), the court followed the Conway case and in the most recent case of Austin &Anor v Minister of State & Ors 1986 (1) ZLR 174 (H) the judge followed Conway but without any reference to Zimbabwean case law. (It should be noted, however, that on appeal the Supreme Court ruled that the trial judge was wrong in deciding that the principles of State privilege had application in this case, as there had been no application for discovery of documentation that the State wanted to be kept secret from all but the judge himself, see Austin & Anor v Minister of State & Ors (1986).)
For a detailed survey of the Zimbabwean cases, apart from the Austin and Harper case see Feltoe “State Privilege: A Curious Conflict” 1979 (1) Zimbabwe Law Journal 31.
In the case of S v Tsvangirai 2004 (2) ZLR 210 (H) the High Court dealing with a case of treason was faced with two state privilege claims. It emphatically ruled that the court does not have to accept a state privilege claim at face value but can look behind the claim, examine itself the evidence in chambers and decide whether to order that the evidence be produced.
See Hambly v The Chief Immigration Officer 1995 (2) ZLR 264 (H) on the application of s 18(12) of the Constitution when the Minister issues a certificate that it is not in the public interest for the reasons for an administrative decision to be disclosed.
Resort to State privilege in criminal cases could lead to far more serious consequences than in civil cases insofar as the accused could end up being convicted, whereas had he had access to and been able to produce certain evidence excluded by a State privilege claim, he might have been acquitted. Because of this fact, the American courts have gone so far as to rule that if the State undertakes a criminal prosecution, it waives any right it might otherwise have had to claim privilege. It must therefore decide whether to prosecute and to allow disclosure of the official information or decline to prosecute because it wishes to maintain the secrecy of the information. See also US v Andolschek 142 F2d 503 (1944). U S v Grayson 166 F.2d 863, 870 (1948) and Reynolds v US 345 US 1, 12 (1953).
In Andolschek at 506 Hand J said–:
While we must accept it as lawful for a department of government to suppress documents, even when they will help determine controversies between their persons, we cannot agree that this should include the suppression of in a criminal prosecution, founded upon those very dealings to which the document relates, and whose criminality they will, or may, tend to exculpate.
McCormick on Evidence (3rd ed 1972 West Publishing) sums up the position in the USA as follows–
Accordingly, in a criminal prosecution the court may give the government the choice of making disclosure of matters of significance to the defense or suffering the dismissal of the proceedings; any executive immunity is waived, and the government cannot as litigant invoke an evidential privilege e.g. for military secrets, while at the same time seeking to proceed affirmatively with respect to its subject matter.
As regards criminal cases the relevant statutory provisions are as follows–
Section 295 Criminal Procedure and Evidence Act [Chapter 9:07] which deals with exclusion of evidence on the grounds of public policy, simply says a witness is not compellable or permitted to give evidence if such witness would not have been compellable or permitted to give evidence if the case were depending in the Supreme Court of Judicature in England. (There is no longer a cut off date of 1 June 1927 in respect of Supreme Court of Judicature decisions.)
Section 296 of the Criminal Procedure and Evidence Act deals specifically with exclusion of evidence on the grounds of State security. These provisions were added in 1976 (ss 46 and 53 of Act 50 of 1976) This section provides that no oral or documentary evidence may be given if the Minister puts in an affidavit to the effect that he has personally considered the evidence and that, in his opinion, this evidence affects the security of the State and disclosure of it would, in his opinion, prejudicially affect the security of the State. This seems to lay down that the court cannot look behind such a claim but has to accept it at face value.
The only case in which State privilege has been claimed in a criminal case in Zimbabwe is during the treason trial of the leader and two other senior officials in a political opposition party. In that case, S v Tsvangirai & Ors 2004 (2) ZLR 210 (H), the Minister of State Security made two State privilege claims. The first was to try to stop the defence from questioning Mr Ben Menashe about the performance by him of the terms of a contract entered into between his company and the Government of Zimbabwe. The judge ruled as follows–
The first issue, he said, was whether the Ministerial certificate was binding upon the court and had to be accepted at face value or whether the court had the power to look behind the certificate and examine whether the state privilege claim was justifiable in the circumstances. He found that when s 296 was incorporated into the Criminal Procedure and Evidence Act in 1976, it was clear from the Parliamentary debate that the intention of the legislature was to make the Ministerial certificate binding on the court and to preclude the court from looking behind it. However, in 1976 there the constitution was non-justiciable and there was a war situation in which various rights had been suspended. The situation presently was very different. The Bill of Rights of the Constitution is now justiciable and there is a fair trial guarantee in the Constitution. Although there are conflicting decisions on whether the court has the power to look behind a state privilege claim, in the current constitutional environment it should be taken that the court does have such power. In appropriate cases the court would therefore exercise the power to look behind a Ministerial claim of state privilege and examine whether the claim is justifiable by calling the Minister to give evidence in camera. However, in some cases the claims would be accepted at face value.
The difficulty in the present case was that the Minister had sought to claim privilege for a document that had been tendered and introduced into evidence by the State itself. The witness whom the Minister had said should not be compellable to give evidence in relation to the document had already given evidence in relation to this document in response to questions from the State. The State had even indicated that it would supply further information to the defence about payments made in terms of the agreement. Therefore there could no longer be an issue about the admissibility of the document and the compellability of the witness to give evidence in relation to the document, although the concern seemed to be not so much about the status of the document but rather about the public disclosure of what had been done under clause 4(1) of the agreement.
The judge ruled that in the present case there was no need for the court to make further inquiry into whether the state privilege claim was well founded because the matter could be dealt with in terms of s 18(12) of the Constitution and the Courts and Adjudicating Authorities Act. These allow the court to hold proceedings in camera where confidential matters were going to be dealt with. The court would therefore order that only the parties to the proceedings be present and the public be excluded when defence counsel cross examined the witness in relation to these matters and the persons present during the in camera proceedings must not publicly disclose what was said during the closed proceedings. The judge observed that the accused were facing serious charges and justice must be done. Justice would be served by hearing the evidence in camera.
The second claim was made to try to stop questioning of the head of the Department of National Security about payments made to Mr Ben Menashe from a covert account. The court upheld this claim without going behind the claim, saying that the claim related to obvious state security matters and the claim should be upheld.
From this case it is now clear that he court does not have to accept a state privilege made on the grounds of state security claim at face value but can look behind the claim, examine itself the evidence in chambers and decide whether to order that the evidence be produced. It was prepared to look behind the first claim but not the second which related to the secret operations of the intelligence service.
In S v Sithole1996 (2) ZLR 575 (H) the court ruled that normally, as an essential component of the constitutionally protected right to a fair trial, a person facing a criminal trial is entitled to have access to witness statements contained in the police docket. If the State seeks to rely on State privilege to prevent the disclosure of this material, it must discharge the onus of establishing that the State interest in keeping the information secret outweighs the right of the accused to a fair trial. It is for the court to decide where the balance of interest lies.In reaching that decision it may be necessary for the court to have sight of the statements of the witnesses. The court decided that in the present case the State had not advanced valid grounds of public policy to justify non-disclosure of the witnesses’ statements and it was clear that the accused had a well-founded apprehension that he would not have a fair trial unless he had access to the statements.
There are less drastic devices available to protect from revelation information of a sensitive nature than totally excluding it. For instance, there are the provisions contained in the Courts and Adjudicating Authorities (Publicity Restriction) Act [Chapter 7:04], which allows proceedings to be held in camera and for restrictions to be placed on publication of certain details of cases.
The question arises whether a person being tried for a criminal offence can receive a fair trial if evidence is excluded in a criminal case because of a State privilege claim. For a detailed investigation of this point see Feltoe “Can there be a fair criminal trial when State privilege is claimed? 2004 Issue No 11 Zimbabwe Human Rights Bulletin 140.
Section 10 of the Civil Evidence Act [Chapter 8:01] no longer makes privilege dependent upon the practice before the Supreme Court of the Judicature in England. Instead in civil cases, the court is simply enjoined to decide whether to exclude evidence on the grounds of public interest if the giving of such evidence would be detrimental to the public interest and such detriment would outweigh any prejudice to the parties or to the interests of justice that might be caused by the non-disclosure of the evidence. Public interest is defined to include the security or defence of the State, the proper functioning of the Government, international relations, confidential sources of information relating to enforcement or administration of the law, and the prevention or detection of breaches of the law.
Section 10(4) sets out the considerations the court must take into account for the purpose of determining whether or not any matter should be declared privileged, and in weighing up the balance of interests. These considerations are–
- the likely effect on the public interest if the matter concerned is disclosed; and
- the importance of the matter concerned in relation to the proceedings and the need to do justice to the parties; and
- the nature of the cause of action and the subject matter of the proceedings; and
- any means available to limit the publication of the matter concerned, whether in terms of the Courts and Adjudicating Authorities (Publicity Restriction) Act [Chapter 7:04] or otherwise.
Section 50 of the Civil Evidence Act specifically provides that the court may itself examine the evidence itself to determine whether that evidence may be privileged from disclosure.