Here is a table: A prolegomenon to a future new evidence scholarship in Africa

Abstract

While it has revolutionised Evidence scholarship in the Euro-American world (mainly common law jurisdictions), the New Evidence Scholarship (‘NES’) movement is yet to arrive on African shores. African Evidence scholarship still largely reflects the relatively antiquated ‘golden age of doctrinal Evidence scholarship’, anchored by leading figures such as Bentham, Stephen, Thayer and Wigmore. This essay draws from the clarion call made historically by Biko and Sobukwe, among several other Africans, for Africa to avoid occupying a seat at a table that has already been set for it, typically in Europe. Africa approaches NES relatively late in the game, but it is contended in this essay that this presents the continent with an opportunity to draw insights from the developments of NES in the Euro-American world with a view of making its own contribution to this burgeoning field of scholarship. This essay suggests that the recognition of the special relativity of evidential proof may be a useful foundation for much broader theorising about evidence and proof in Africa. The essay concludes by using two models of proving the conduct and unlawfulness elements of the crime of corruption to illustrate the implications of this probative theory of special relativity.

Keywords

new evidence scholarship Africa law of evidence argumentation proof decolonisation

Introduction

Describing the colonial project using the metaphor of a set table to which Africans are invited, coerced or compelled (hereafter ‘In-Co-Co-nised’) to sit alongside their European counterparts is familiar to most African scholars. Bantu Biko said the challenge for Africans is to ‘strip the table of all [its] trappings’ and ‘decorate it in true African style’ (Biko, 1978: 69). According to Dladla, the post-independence period in Africa is characterised by some indigenous conquered people opting to take their seats at the table without changing any of the tableware, whereas others remain ‘locked outside the house nowhere near the dining room’ (Dladla, 2000: iii). The table of Evidence scholarship to which Africa¹ was originally In-Co-Co-nised to sit is the traditional doctrinal version that reached its zenith in 1972 when Cross was quoted as saying that he was working for the day when his subject was abolished (see Murphy, 1999: 327; Twining, 1985: 10; Twining, 2006: 1). This ‘golden age of doctrinal scholarship’ (Park, 1991: 854–5) was understood, according to Stephen, whose work continues to dominate the Law of Evidence in most African jurisdictions (Adangor, 2015: 34; Miller, 1966: 3; Morris, 1968: 1–23), as principally consisting of ‘two elements’, namely ‘an enormous number of cases’ and ‘a comparatively small number of Acts of Parliament’ (Stephen, 1887: x). This particular table has been fundamentally reconfigured in the Euro-American world by the now extant new evidence scholarship movement (Lempert, 1986; Lempert, 2001: 1622 and 1622, n13; Park, 1991: 854; Twining, 1999: 352, n4). While several scholars in that part of the world have said that ‘new evidence scholarship is no longer new’ (Pardo, 2013: 549; Welch, 2020: 351), this revolution is yet to arrive on African shores.

At the heart of this paradigmatic redirection has been a shift in focus away from ‘a school-rules view of the field’ (Boyle, 2007: 88; Twining, 1985: 10; Twining, 2006: 1) towards what Wigmore referred to as ‘the ratiocinative process’ of proof (Wigmore, 1913: 3). Despite the founders of this journal regarding ‘evidence as a multidisciplinary subject…[concerned with] inferential reasoning,’ and, therefore, inviting submissions of ‘an interdisciplinary nature’ (from disciplines such as anthropology, criminology, psychology, statistics and linguistics) (McConville and Leng, 1996: 3), only two Africans, Jamil Mujuzi and Pamela-Jane Schwikkard, have been published in the journal since its inception in 1996, and both have written doctrinal pieces in the mould of the ‘golden age’ of Evidence scholarship described earlier (Mujuzi, 2013: 347; Mujuzi, 2015: 3; Mujuzi, 2020: 419; Schwikkard, 2001: 32; Schwikkard, 2004: 120). Other indicators of the entrenchment of doctrinal Evidence scholarship in Africa include: the continued structural adherence to Stephen's trifurcated conception of the field as consisting of ‘the relevancy of facts’ (admissibility), ‘the proof of facts’ (the different forms of mechanisms through which evidence can be adduced) and ‘the production of proof of relevant facts’ (rules pertaining to burdens and standards of proof) (Stephen, 1872: 9) by most textbook writers² and legislators³ across the continent. Another indicator is the fact that Wigmore's doctrinal Treatise, as opposed to his ‘Science of judicial proof’ (Wigmore, 1913), remains one of the most cited pieces of Evidence scholarship across Africa (Ataloye v The State (2012) LPELR-19666 (CA) at 33; R v Hassan Randu Nzioka [2019] eKLR at 4; S v Lin [2010] 1 All SA 358 (W) ; S v Masawi 1996 (2) ZLR 472 (S) at 512–3; Uganda v Longole (Criminal session case No. 104 of 2014) [2016] UGHCCRD 18; Paizes, 1986: 708; Zeffertt and Paizes, 2017: 33).

Twining traces the development of new evidence scholarship through five phases (Twining, 1999: 352–6; see also Park et al., 2010: 553). Firstly, there were early debates about the potential utility of statistics and probability theory in fact-finding (Ball, 1961; Cullison, 1969; Kaplan, 1968). These debates were further spurred on by the difficulties encountered in People v Collins (68 Cal. 2d 319, 438 P.2d 33, 66 Cal. Rptr. 497 (1968)) in the identification of the robber of the elderly complainant's purse, and the subsequent suggestions that Bayesian analysis could be a viable solution in this regard (Brilmayer, 1986; Finkelstein and Fairly, 1970; Friedman, 1986; Kaye, 1986; Nance, 2008: 267; Nance, 2016; Schum, 2002: 145; Walker, 2002: 197). A small group of sceptics, led by Tribe, began to emerge in the second wave in resistance against this early wave of ‘trial by mathematics’ (Allen, 1986: 401; Tribe, 1971: 1329). Phase three of the development of new evidence scholarship involved the emergence of what used to be referred to as ‘Baconian theories,’ led by Cohen, of evidence and proof (Cohen, 1977; Cohen, 1986: 635). Comparable epistemological theories by Haack and Sosa (Haack, 1993: 113; Haack, 2004: 43; Sosa, 1980: 3) can be also categorised as part of this particular wave of new evidence scholarship. The fourth wave was dominated by a further alternative form of theorising that are distinct from the early probabilistic or Bayesian accounts from the first wave. The story-model pioneered by Bennet and Feldman, and further developed by Pennington and Hastie, was the dominant theory of the fourth wave (Bennet and Feldman, 1981; Hastie et al, 1983; Pennington and Hastie, 1986: 242; Pennington and Hastie, 1991: 519; Pennington and Hastie, 1993: 192). The last wave discussed by Twining was led by what can be broadly referred to as ‘explanatory theories’ of evidence and proof. Examples of these theories include Wagenaar's ‘anchored narratives’, which is grounded on the story-model from the fourth wave, and Allen and Pardo's theory of relative plausibility (Allen, 1997: 254; Allen, 2008: 321; Allen and Pardo, 2007: 107; Allen and Pardo, 2008: 223; Allen and Pardo, 2019: 5; Pardo, 2000: 399; Wagenaar et al., 1993; Wagenaar, 1995: 267). This journal also recently published a special double issue containing a comprehensive version of Allen and Pardo's relative plausibility theory and some 20 responses by various scholars (Allen and Pardo, 2019, 205; Doak, 2019: 3).

Most of these developments of new evidence scholarship, as indicated earlier, are yet to reach African shores. It was only during the early 21st century that similar questions about evidential proof began to be raised by African scholars (Paizes, 2003: 113 and 138; Paizes, 2014: 289). This dearth of theorising about evidential proof recently prompted a judge to undertake this scholarly task in his judgment when he asked, ‘how it is that, based on pieces of information we may discern about a past event, we may claim adequate knowledge of that event’ and ‘[o]n what basis do I propose that the pieces of information may be treated as marks on a canvas’ (S v Ngubane 2021 (2) SACR 158 (GJ) at [22]). However, these questions are yet to be addressed, at least not to the extent as they have been in the Euro-American world, in African scholarship. Historically, the trend, in many respects, has been that ‘[t]he West remains the generator and exporter of concepts and theories that are tested in Africa’ (Tella, 2020: 5). For example, Tanzania's law reformers outsourced the review of their current Evidence statute, together with the drafting of a new code, to Allen and his team at Northwestern University, Chicago. After finding the extant statute to be a ‘conceptual and drafting nightmare,’ Allen prepared a new code in 2014 (see Allen, 2013: 217, 2020: 1, 2015: 283). A similar duplication, without more, of new evidence scholarship, as it has developed through the five phases outlined earlier, in Africa is likely to perpetuate this northbound gaze towards the Euro-American world (Ramose, 2002: 600). This is analogous to what Biko and Dladla described earlier as taking a seat at the pre-configured table of ideas. What decolonial scholars have described as ‘coloniality’ entails a similar state of being in a world that in many ways has already been made in the image of Europe and the United States (see Maldonado-Torres, 2007: 243; Mignolo, 2003; Ndlovu-Gatsheni, 2018; Quijano, 2000: 215).

This essay does not reject the developments in new evidence scholarship, but it recognises that this is a peculiar table that was made, and later remade, in Euro-America. Mangaliso Sobukwe's metaphor of a tree, which is similar to Biko's table, is pertinent to draw from here (Dladla, 2000: 130; Sobukwe, 1950: 9–10). African Evidence scholars can attempt to find shade under the long and thick branches of Euro-American new evidence scholarship, but the roots will remain firmly beneath European and American soil. Africa can learn much from Euro-American new evidence scholarship, but its foray into this burgeoning field must begin with the planting of its own seed on African soil. This essay constitutes the first in a series of initial thoughts on theorising about evidential proof in Africa. There is unlikely to be anything about the operation or meaning of evidential proof that will be peculiar to Africa, as opposed to elsewhere in the world. However, the nature of some of the theoretical problems that have arisen in Africa may well be a useful starting point for theorising about evidence and proof in Africa. These include: theorising about evidential proof in cases involving the many statutory crimes of witchcraft that persist across the continent;⁴ determining the kind of proof that will be appropriate for traditional courts where the majority of Africans litigate (Bwire, 2019: 19; Fenrich et al., 2011: 1); and the incorporation of popular indigenous methods of fact-finding that are used by traditional healers into theorising about evidence and proof at the state level. Although they are beyond the limited scope of this essay, these wide-ranging questions are outlined here to prompt a much wider discussion about new evidence scholarship across Africa. The remainder of this essay will focus on two core aspects: firstly, the next section explores the idea of evidential proof having a peculiar feature of special relativity that is hardly recognised by most Euro-American scholars within the new evidence scholarship movement. This feature of special relativity, it will be argued, raises difficult questions for those looking to generate broad and substance-blind theories that apply to evidence and proof in general. Secondly, the implications of this feature of special relativity are illustrated in the last section through a discussion of two distinct models of evidential argumentation for the conduct and unlawfulness elements of the statutory crime of corruption in Africa.

An introduction to a probative theory of special relativity

One of the most prominent pieces of silverware on the table of orthodox doctrinal Evidence scholarship to which Africa was In-Co-Co-nised to sit was a bifurcated procedural law and a trans-substantive Evidence Law. According to Stephen, ‘[t]he law of procedure’ consists of ‘two main branches,’ namely: ‘the law of pleading’ and ‘the law of evidence’ (Stephen, 1872: 8). Although there may be presentational differences between various African jurisdictions, most jurisdictions on the continent have generally followed this trend. For example, whereas some jurisdictions such as Nigeria, Kenya and Tanzania have uniform Evidence statutes that apply trans-substantively to all types of disputes (see Evidence Act 6 of 1967; Evidence Act (Cap 80 of the Laws of Kenya, 1963); Evidence Act (Cap 112 of the Laws of the Federation of Nigeria, 2011)), others such as Zimbabwe and South Africa draw a largely presentational distinction between criminal and civil realms of application of Evidence rules (for example, Criminal Procedure and Evidence (Cap 9:07 of the Laws of the Republic of Zimbabwe, 1927); Criminal Procedure Act 51 of 1977). However, in most instances, Wigmore's thought about ‘the precise scope’ of ‘the subject of evidence’ consisting of ‘the general process of vindicating or enforcing both public and private jural rights and duties’ (Wigmore, 1983: 2) is shared widely at a conceptual level across the continent (see Mbobu, 2016; Schwikkard and Van der Merwe, 2016; Tobi, 2002).

In general, a conception of Evidence Law as applying trans-substantively to all disputes or across all sub-branches of substantive law arouses deep suspicion. For example, this is the first of Roberts's ‘five foundational fallacies of Common Law Evidence’ in the context of England and Wales (Roberts, 2018: 93–108). What is even more suspicious are generic models of evidential proof that apply indiscriminately across not only various types of facta probanda, but also to the fact-finding process as a whole. An analogous feeling of scepticism was aroused when Einstein encountered the Newtonian supposition that time was absolute and that people situated in different spatial locations should, on this reasoning, have the same time on their individual watches (Einstein, 1952: 37−40. Cf. Newton, 1848: 77–82. See also Craig and Smith, 2008; Rynasiewicz, 1996). For example, it is not immediately clear how the same general model of evidential proof can be said to apply towards proving that Mr Jochoma's act of breaking an egg at the gate of a magistrates’ court precinct in Harare with the intention of influencing the pending proceedings constituted an act of witchcraft in terms of s. 98(1) of Zimbabwe's witchcraft statute (S v Jochoma 2014 (2) ZLR 553 (H)), as it does, without material alteration, towards proving who owns a strip of land known as Yola Popandi Kulgul in the north-east (Gombe state) of Nigeria (Falke v Billiri Local Government Council). The same trans-substantive challenge does arise, in my view, with respect to proving an element such as whether or not a litigant bears ex lege a duty of care in a particular instance, as distinguishable from proving the identity of an alleged perpetrator. Further complications arise if generic theories of proof are applied indiscriminately towards various institutional demarcations of the fact-finding process. For example, proving whether or not a particular witness is credible or their testimony is reliable has material institutional differences from proving whether or not a complainant consented to having sexual intercourse with an alleged rape perpetrator. These basic propositional variations are likely to be accepted by most Evidence scholars in Africa and elsewhere in the world, but their implications for a trans-substantive Evidence law, and theorising about evidential proof in particular, are yet to be fully explored. For example, while most Evidence scholars accept that facta probanda typically are ‘jumbled mixture[s] of matters of unequal ontological status with an unequal degree of accessibility to our cognitive apparatus’ (Clermont, 2020: 353–4, n10; Damaška, 1998: 299–301; Tillers, 1988: 175), the exhaustive implications of this for theorising about evidential proof in general, particularly in trans-substantive ways, are rarely explained.

Cohen introduced his ‘non-Pascalian’ theory of inductive probability with the comment that he saw no need to ‘cite actual cases,’ nor to adhere to any established legal doctrine, and that he would instead rely on ‘imaginary cases’ to illustrate his theory (Cohen, 1977: 56–7). Not only is this kind of move consistent with the multidisciplinary ethos, entailing scholars from various disciplines outside of law focus on universal projects such as ‘the logic of proof’ and ‘inferential reasoning’ (Twining, 2003: 97), of Euro-American new evidence scholarship in general, but it also does appear to cohere with the overall institutional framework of Euro-American common law jurisdictions requiring that lay fact-finders rely on ordinary common sense reasoning to make their findings (see Roberts and Zuckerman, 2010: 142–148; Twining, 1999: 351). Cohen uses a similar justification for his avoidance of legal doctrine: ‘Jurors could not be expected to do this if those concepts were saturated with the kind of technical legal meaning that requires reference to relevant cases or statutes for its proper determination’ (Cohen, 1986: 635). Although the absence of juries in most African jurisdictions (Knox-Mawer, 1958: 160–1; Mittlebeeler, 1968: 90; Ramesh, 1985: 18–9; Vidmar, 2000: 425; Vidmar, 2002: 392–6) does not preclude the application of common law Evidence rules and institutional frameworks (Maartens and Schwikkard, 2011: 513), the operation of the kind of substance-blindness that ignores established doctrine and institutional context, particularly in African jurisdictions that deploy professional fact-finders, is likely to either produce errors or inconsistencies between Evidence scholarship and fact-finding practice.

Twining summarises this approach to Euro-American new evidence scholarship as being ‘substance-blind,’ ‘source-blind’ and ‘task-blind,’ such that institutional processes of fact-finding such as admissibility, credibility, reliability, probative weight, standards of proof and findings of guilt or innocence can be theorised about in general terms without considering established legal doctrine (Twining, 2003: 99; cf. Schum, 1994: 66, 114–20 and 484). Consistent with this approach, Schwartz and Sober see no problem in combining the separate elements of (i) whether a defendant owes a duty of care to a plaintiff and (ii) whether, if so, this duty was breached by the defendant into the single element of ‘breach of duty’ or ‘fault’ (Schwartz and Sober, 2017: 662). In their broader aim of theorising about evidence and proof in general terms, Schwartz and Sober similarly combine the elements of causation and damages into a single element because, they argue, these differences ‘can hardly change the probability of the whole,’ if each factum probandum is regarded as an ‘event’ to which a probability ratio can be assigned (Schwartz and Sober, 2017: 662). However, a lay fact-finder may not be required to know the legal distinction between ‘fault’ and ‘conduct’ or ‘unlawfulness,’ and between ‘causation’ and ‘harm,’ but an African fact-finder will certainly stress these distinctions. For the failure to comply with a legal duty is distinct from being blamed or held responsible for it (for example, a child may not be blamed, despite driving recklessly). An even more controversial aspect of this approach pertains to the possible meaning of assigning probabilities towards normative elements such as negligence and unlawfulness. This is in relation to the determination of the existence of a legal duty on a defendant to act in a particular way. The answer to this enquiry is largely dependent on precedent and statute, and to a lesser extent, on legal argument. It is not clear how assigning probabilities could be useful in this regard, but even if it is (or could be) in some way, the impact of combining this enquiry with the more factual question as to whether the defendant in fact breached this duty in the overall proof of these kinds of loaded elements is rarely explained in Euro-American new evidence scholarship.

If this type of substance-blindness continues to anchor the foundation of Euro-American new evidence scholarship in the way described by Twining earlier, it is questionable whether this burgeoning body of scholarship has a future within the discipline of Law. For example, Balding interpreted ‘is guilty’ to be equivalent to ‘is the source of the crime scene DNA’ (Balding, 2000: 52), whereas this interpretation would not even be correct if the identity of the alleged perpetrator was the only factum probandum (there are also standards of proof and various rules pertaining to the assignment of weight to evidence that would still be left to consider). According to Aitken et al., ‘factual guilt’ is a necessary condition that only becomes sufficient once it becomes ‘legal guilt’ (Aitken et al., 2010: 15). Similarly, Walton's ‘one large method’ of dialectical legal argumentation that purports to straddle across the areas of admissibility and probative value (Walton, 2002: 201 and 321–2) is yet another example of the pervasive trend of substance-blindness in Euro-American new evidence scholarship. This latter example is mentioned here despite the fact that legal and evidential argumentation is currently dwarfed by the domineering Bayesian (or probabilistic) and ‘Bayesioskeptic’ debates (see Bex, 2011; Brewer, 1996: 923; Dahlman, 2017: 83; Feteris, 2017; Keptein, 2017; Kloosterhuis, 2005: 471; Perelman, 1963; Perelman and Olbrecht-Tyteca, 1969; Rieke, 1981: 152; Tuzet, 2013: 207; Verheij, 1999: 109; Walton, 2002, 2014). Welch pertinently points out that these debates are dominated by ‘two disparate groups,’ that is, ‘a pro group, disposed to build mathematical models’ and a ‘con group, critical of the juridical use of these models’ (Welch, 2020: 351). A few signs of convergence between these two groups have also recently began to emerge (Allen and Pardo, 2019: 206–207; Friedman, 2001: 2040–8; Gelbach, 2019: 169; Welch, 2020: 353 and 358–363). On Schum's distinction between ‘structural’ and ‘force-related’ theorising (Schum, 1994: 62–3), much of Euro-American new evidence scholarship can be said to be predominantly preoccupied with the latter force-related variant.

Euro-American new evidence scholarship is a very vibrant and burgeoning field from which African evidence scholarship can draw many useful things. However, the institutional implications of the trend of substance-blindness highlighted earlier would need to be properly explained in order to sustain its relevance and future within the discipline of Law, particularly in Africa. In addition to Pardo's three conditions for a ‘successful theory of evidence and proof,’ at micro, macro and integration levels (Pardo, 2013: 562–8), this essay would recommend that the extent to which evidential proof interacts with substantive law branches, and other institutional factors referred to earlier, should be a consideration. The view taken in this essay is that evidential proof is in fact relativistic with the implication that generic theories of proof that purport to apply, without the necessary alterations, indiscriminately to all disputes, substantive law branches or areas of the overall fact-finding process are likely either prone to error or to be of very limited use in African fact-finding practice. Wigmore, in his novum organum, pertinently contended that ‘the first step’ and the ‘prime question serving as the key’ was: ‘What particular proposition is the fact offered to prove?’ (Wigmore, 1983: 1142, 1913: 27). According to Wigmore, ‘[n]o correct and sure comprehension of the nature of any evidential question can ever be had unless this double or relative aspect of it is distinctly pictured’ (Wigmore, 1983: 15, 1913: 5). The nature and source of the probandum that Wigmore is referring to here is substantive law. It is better to conceive of each substantive law rule or provision that creates rights and duties, according to Maine, as having been constructed with a specific procedural apparatus in mind to enforce these rights and duties (Maine, 2003: 822; cf. Bentham, 1827: 5 and 21, 1843: 15; Postema, 1977: 1396–7 and 1402). If this view holds, it may be more accurate and institutionally consistent to theorise about evidential proof in relativistic terms that are specific to each peculiar factum probandum from each branch of substantive law. Their ultimate combination can then thereafter proceed from the correct foundation of the type of probative relativity described in this essay. This core idea of probative relativity is suggested here as a possible preliminary foundation upon which Africa can commence its foray into new evidence scholarship. The remainder of this essay proceeds to use the elements of the crime of corruption in Africa to further illustrate the implications of this preliminary theory of probative relativity.

An illustration of probative special relativity through the forensic proof of corruption

A future of new evidence scholarship in Africa and of generic theories of proof that apply indiscriminately to various parts of the fact-finding process may still lie ahead, and it is at this point that we may properly refer to a probative theory of general relativity. However, the trend of substance-blindness discussed earlier in this essay can only lead us to the conclusion that we are still at the point of a probative theory of special relativity. This is the point where we are still working out the proper relationship between theorising about proof, and the subject of Evidence in general, and the various substantive law branches that it interacts with. Einstein drew an analogous special-general distinction in the discipline of Physics to distinguish non-accelerating (inertial) from accelerating (under gravitational force) ‘moving bodies’ (Callahan, 2000: ix and 329; Shadowitz, 1988: 2–3). This language is borrowed in this essay for the limited purpose of distinguishing between individualised models of proof for specific substantive law elements (for example, intention, causation or conduct, as the case may be) and more generalised theories that apply either to specific substantive law sub-branches (for example, criminal law, constitutional law or tax law disputes, as the case may be) or to certain classes of disputes in general. In either case (of special or general relativity), the aim is to avoid evidential theorising that is substance-blind in the way described earlier in this essay. Euro-American new evidence scholarship has a rich and relatively fast-paced trajectory of development (with a little over two decades since the term ‘new evidence scholarship’ was coined in the 1980s), and there are many things that Africa can learn from this burgeoning body of scholarship. The primary aim of this essay is to contribute towards igniting Africa's journey in new evidence scholarship. This journey should not, in my view, simply replicate what has happened in Euro-American new evidence scholarship. Beginning from the kind of probative theory of special relativity propounded in this essay will not only help Africa avoid the pitfall of substance-blindness, but it will also afford Africa the opportunity to remake its table of Evidence scholarship in its own image, as Biko and Sobukwe suggested.

The materiality of corruption

‘Materiality’ describes the quality of facts being in dispute or before the consideration of a fact-finder (Montrose, 1954: 529). These ‘facts’ are usually, or primarily, the discrete elements of a particular substantive law provision about which the parties are in dispute. Material facts are determined in practice typically by considering the particular allegations that the defendant or accused person is denying (Schmidt and Rademeyer, 2021: 13.2.3). Therefore, the starting point of any general modelling of evidential proof, on the probative theory of special relativity proposed in this essay, must begin with considering the relevant substantive law provision(s). In the remainder of this essay, the focus will be on the crime of corruption in Africa for the limited purpose of illustrating the implications of the probative theory of special relativity introduced earlier. Corruption is referred to here in the singular because of the broad methodological aims of this essay to theorise in fairly general terms about new evidence scholarship in Africa, but corruption is in fact a ‘collection of phenomena’ (United Nations, 2003: 22). This is an early indication of the usefulness of considering substantive law provisions, and legal doctrine in general, when theorising above evidence and proof. According to the United Nations Convention of 31 October 2003, corruption includes at least five distinct practices, namely: bribery, embezzlement, abuse of office, trading in influence and illicit enrichment (United Nations, 2003: articles 15–20). Most African jurisdictions (no less than 43 of the African Union's 54 member states) have ratified and domesticated these offences (Olaniyan, 2016: 175).⁵ Although it is a distinct offence, money laundering typically is categorised together with these five offences under the broader umbrella of corruption (United Nations, 2003: article 23).

This essay will focus mainly on the elements of bribery, but it is worth briefly summarising the nature of the other offences by way of background. ‘Embezzlement’ entails the misappropriation of property by an individual, typically without the involvement of a third party (African Union, 2003: article 4(1)(c) and (d); ECOWAS, 2005: article 6(1)(d); SADC, 2001: articles 3(1)(c) – (d); United Nations, 2003: articles 17 and 22),⁶ whereas ‘trading in influence’ involves public or private officials using their political authority to obtain a benefit from a third party (United Nations, 2003: article 18).⁷ ‘Illicit enrichment’ covers all instances involving the material increases in the asset value of officials without a reasonable explanation (African Union, 2003: articles 4(1)(g) and 8; ECOWAS, 2005: article 2005; United Nations, 2003: article 20).⁸ The fifth of the corrupt practices is ‘abuse of functions,’ which would be committed by an official that intentionally fails to perform their official functions for the purpose of receiving an undue benefit (United Nations, 2003: article 19).⁹ Regarding the offence of bribery, which will be the primary focus of this essay, article 15 of the United Nations Convention prohibits both the supply (including, offering, promising or giving) and demand (including, solicitation or acceptance) of a benefit by a public or private official for a corrupt purpose (see also African Union, 2003: articles 4(1)(a)–(b) and 4(1)(1)(e)–(f)); ECOWAS, 2005: articles 6(1)(a)–(b) and 6(1)(c)–(d); SADC, 2001: articles 3(1)(a)–(b).¹⁰

The pertinent facta probanda the bribery version of corruption are: (i) the conduct of supplying or demanding a benefit; (ii) the benefit itself; (iii) intention; and (iv) unlawfulness (Burchell, 2016: 807; Hoctor, 2020: 358; S v Selebi 2012 (1) SA 487 (SCA) at [8]; Temple Nwankoala v Federal Republic of Nigeria (2018) LPELR-43891 (SC) at 13–4). The focus for the remainder of this essay will be on the conduct and unlawfulness requirements, (i) and (iv), for purposes of illustrating the implications of the probative theory of special relativity that was introduced earlier. References to actions such as ‘offering’, ‘giving’, ‘soliciting’ and ‘accepting’ make it unequivocal that conduct is the foremost requirement that must be proven, but none of the statutes across the continent explicitly refer to ‘unlawfulness’ in their proscriptions. At best, there are references to a ‘breach of trust’ or ‘abuse of authority’ (African Union, 2003: articles 4(1)(a)–(b) and 4(1)(e)–(f); ECOWAS, 2005: articles 6(1)(a)–(b) and 6(1)(c)–(d); SADC, 2001: articles 3(1)(a)–(b) and 3(1)(e)–(f); United Nations, 2003: article 15).¹¹ This language has been read to imply the operation of an unlawfulness requirement (Deming, 2014: 109; S v Selebi at [8]). Unlawfulness is understood here as being constituted by two features, namely: the interpretation or determination of a general normative standard of behaviour (which can be read as the existence of a duty) against which a perpetrator's conduct, properly established, is judged (Grant, 2007: 4–5; S v Basson 2005 (1) SA 171 (CC) at [50]–[51]). The relativistic approach taken in this essay requires that one is sensitive towards the distinction between this loaded hybrid (normative and factual) unlawfulness requirement and the more descriptive (factual) conduct requirement (that is, did the perpetrator do it?). Generalising about evidence and proof without observing this institutional distinction is likely to produce errors.

The conduct model of proof

Although corruption is widely understood as a ‘two-sided offence,’ and its conduct requirement as consisting in a ‘mirror image’ of the reciprocal actions of the beneficiary (hereafter, the ‘quid’) and the (public or private) official (hereafter, the ‘quo’) (Langseth, 2006: 10; Rose-Ackerman, 2008: 560; S v Scholtz 2018 (2) SACR 526 (SCA) at 124), the proof of a so-called ‘quid pro quo’ is not required (S v Selebi at [97]–[98]). This suggests that the relationship between the quid and the quo always exists at a notional level, but the manifestation of the reciprocation need not be proved. According to Leach JA, proving ‘a general common understanding’ to achieve a corrupt purpose is sufficient (S v Scholtz at 130). It is therefore useful to give a structural representation of the evidential argument for the conduct element of corruption in Africa. The conduct evidential argument can be modelled along the lines of a traditional disjunctive syllogism (Salmon, 2013: 322):

p or q.

∼ p.

:. q.

This is basic form is a valid argument in that only one of the disjuncts (p and q) from the first premiss needs to be true in order for both premisses to be true, and for the conclusion to follow accordingly. Mapping this form on to the conduct requirement of corruption in Africa:

quid or quo.

∼ quid.

:. quo.

This is to say that: (1) either a corrupt benefit was offered or received by the quid (p), or it was offered or received by the quo (q); (2) a corrupt benefit was not offered or received by the quid; (3) therefore, a corrupt benefit was offered or received by the quo. Although this latter argument is modelled along the lines of the valid disjunctive syllogism from earlier, it needs to be developed further lest it turn out to be a veiled argumentum ad ignorantiam fallacy. To argue that the quo offered or received a corrupt benefit on the grounds, without more, that the quid did not offer or receive a corrupt benefit is a classic argument from ignorance, that is: ‘it is not known whether the quo offered or received a corrupt benefit; therefore, the quo did offer or receive a corrupt benefit’ (see Copi, 2014: 131; Hamblin, 1970: 43; Walton, 1989: 44, 1999: 368; Woods and Walton, 1978: 92). Typical examples of the argumentum ad ignorantiam fallacy include: ‘A does not hear (from inside her house) any rainfall, therefore, it is not raining outside’ (Walton, 1996: 1); ‘it has not been proven that there are no flying saucers, therefore, there are flying saucers’ (Robinson, 1971: 98); ‘it has not been proven that ghosts do not exist, therefore, ghosts exists’ (Walton, 1989: 43–4).

Our corruption model would be improved (avoiding the argumentum ad ignorantiam fallacy) by an additional premiss stipulating epistemic closure being added:

quid or quo.

∼ quid.

KC(quid).

:. quo.

Walton added a similar premiss to render his iteration of the argumentum ad ignorantiam ‘reasonable,’ and no longer fallacious (Walton, 1992: 381–2, 1996: 248–9, 252 and 245). ‘Epistemic closure,’ which term was coined by de Cornulier in 1988 (de Cornulier, 1988: 182), is a move in argumentation that signifies the closure of a knowledge base (KC) containing a certain class of propositions (Walton, 1992: 382). The reasonableness ex logos of this move is warranted by an epistemic counterfactual: ‘if a particular proposition were true, it would be contained within my knowledge base’ (Copi, 2014: 132; Walton, 1992: 382 and 385). According to de Cornulier, if one is standing outside, bareheaded, they would know whether or not it is raining outside. If they do not know that it is raining outside, they would be permitted to close their knowledge base about the possibilities of rainfall (de Cornulier, 1988: 182). In other words, for as long as such a person remains outside (and bareheaded), they would know if it was raining. Similarly, if a taxi bears the sign ‘Khayelitsha’ on its window, we can reasonably ex logos close our knowledge base such that we exclude any alternative possibilities of the taxi travelling elsewhere (for example, Fish Hoek, Sea Point or Soweto), despite our lack of definite knowledge as to the precise destination of the taxi (cf. Walton, 1992: 381). A much older example of epistemic closure was given by De Morgan, who contended that the location of a missing book in one of two rooms (A and B) can be proven by showing that strong investigative tools were used to search for the book in one of the rooms (A) and it was not found (De Morgan, 1847: 261–2; Walton, 1996: 17). The epistemic counterfactual here would be that the book must, therefore, be in room B, since it would have been found had it been in room A. The strong investigative tools that are used to conduct the search would warrant the closure of this limited knowledge base (two rooms).

Reverting to our conduct model, the argument is that the inference that the quo (the public or private official) offered or received the corrupt benefit is warranted, despite us having no such direct knowledge, by the closure of our knowledge base on epistemic and institutional grounds. ‘Direct’ knowledge in this sense would be the evidential proof of the quo's offer or receipt of the corrupt benefit in the ordinary way. However, in most cases in practice, there typically is a lack of such (direct) proof (see Brioschi, 2017: 22; Hatchard, 2014: 168; Olaniyan, 2016: 11; S v Scholtz at 199). Instead, we are left with resorting to our modified disjunctive syllogism. This argument is considered here from the perspective of the prosecution team,¹² including its investigators and witnesses, preparing for legal argumentation at trial after they have charged the accused or defendant. The prosecution can use the modified disjunctive syllogism to structure its argument with respect to the conduct element of corruption. Following its preliminary investigation, the prosecution typically would have some initial suspicions (or knowledge in some instances) of one or more unexplained or illicit payments (or perhaps funds that are missing) that have been made, but they would be without knowledge of by whom, and to whom, such payment(s) was or were made. The modified disjunctive syllogism is developed to address this particular problem of identification.

The disjunctive ‘rule’ ex logos in premiss (1) limits the scope of our epistemic search to two affirmative possibilities (quid or quo). The conclusion is justified by the negation of the first disjunct (quid) in premiss (2) and the consequent epistemic closure of our knowledge base with respect to the second disjunct (quo). The negation of the quid would typically be accounted for by the lack of evidential proof that the beneficiary (quid) has offered or received a corrupt benefit to or from the official (quo) (this would be the missing book on De Morgan's analogy from earlier). The strength of the prosecution's investigative capacity will warrant the closure of this particular knowledge base such that we can posit the epistemic counterfactual that if the proof of the quid existed (or was plausible), then it would have been established given these limited (closed) epistemic parameters. In any event, fact-finding processes across the continent are committed to achieving finality through the imposition of various decision rules (for example, burdens of proof) (see Jackson, 2004: 124 and 128–9; Schwikkard and Van der Merwe, 2016: 53–4; 601). Therefore, the prosecution would argue that if (i) the evidential proof of the quid is negated; (ii) its investigative capacity is accepted as being sufficiently resourceful and reliable such as to close the pertinent knowledge base; and (iii) the payment discovered from the preliminary investigation is accepted as having been made (both (ii) and (iii) form part of the epistemic closure premiss of the original argument), then the conclusion that the quo has been proven would follow. Another reason that justifies the epistemic closure in premiss (3) of the modified disjunctive syllogism is the precedent-setting dictum that reciprocation from both the official and beneficiary need not be proven for a conviction (S v Scholtz at 130; Selebi at [97]). On this construction, it is sufficient to establish the quid or quo (as the case may be) and to show the existence of a counterparty at a notional level without showing that the latter perpetrated any specific conduct.

The unlawfulness model of proof

In the cases of Selebi and Temple Nwankoala the defendants denied the conduct element of their corruption charges (SV Makandigona, 1981 (4) SA 439 (ZA) at 441B–C; Temple Nwankoala at 38–40). Mr Makandigona denied completing a competency certificate for a candidate (Mrs Maumbe) without conducting the requisite driving test, whereas Mr Nwankoala denied demanding a bribe from a person (Mr Okiye) whom he was investigating. Both denials were found to be unsatisfactory ultimately (Makandigona at 442B; Temple Nwankoala at 23), and these decisions will not be discussed any further here. The modified disjunctive argument discussed earlier in the previous section could be useful in similar cases in which the conduct requirement is being denied. However, these cases are distinguishable from a case such as Scholtz where the refutations of the accused persons amount to denials of the unlawfulness element of corruption (Scholtz at 86 and 134). The accused persons had entered into multiple lease agreements with various State entities, but it was denied that any of these lease agreements were in breach of the relevant supply chain government regulations (particularly Regulation 13.2 of the South African National Treasury Regulations), as the prosecution alleged. This denial was based on two grounds: firstly, the full set of procurement documents of the transactions were missing by the time the police commenced their investigation and secondly, it was argued that Regulation 13.2.4 had to be read to mean that the relevant government accounting officer had the power to enter into any lease without following any procurement procedures under the regulations (Scholtz at 134–5).

As indicated earlier, what distinguishes unlawfulness from conduct is its normative component (Grant, 2007: 4–5). For example, the denials in Scholtz could not be addressed using the modified disjunctive syllogism discussed earlier. The pattern of reasoning for purposes of the conduct element followed a ‘fact-to-fact’ structure, whereas the determination of unlawfulness entails a ‘norm-to-fact’ pattern. The interpretation of the procurement documents (had they been found), including the lease agreements, and the meaning of the pertinent regulatory provisions in Scholtz is an entirely doctrinal exercise that is akin to what Dworkin calls ‘theoretical disagreements’ (Dworkin, 1986: 4–5, 11 and 87, 2011: 126–7; MacCormick, 2005: 43). A useful way of explaining this distinction is through the following example: Suppose A was given a shopping list and sent by his grandmother to the local supermarket. Suppose further that a detective (B) follows A around the store while he does his shopping. A's task is to interpret the meaning of his grandmother's language with each item on the list, whereas B is tasked with compiling a separate list of everything that A places into his trolley. B's task does not involve a comparable form of linguistic interpretation as does A. B's role is to ultimately check that all the items on his list are identical to those in A's trolley (See Hage, 2018: loc 3581–3839; cf. Anscombe, 1976: 56; Searle, 1979: 1–27). A's interpretative task is an example of norm-to-fact reasoning, whereas B's task is a form of ‘fact-to-fact’ reasoning. This distinction hardly appears to be recognised in the generic forms of theorising described earlier in this essay in the context of Euro-American new evidence scholarship.

The structure of the unlawfulness model of argumentation is also distinguishable from the conduct model described earlier:

E → F.

Non-excipiens.

:. F.

This model is borrowed from Verheij's modus non excipiens (Verheij, 1999: 113). The first two premisses and the conclusion make up a slightly modified modus ponens argument, but with premiss (1) containing a defeasible, as opposed to deductive, conditional, that affirms the antecedent (E) (Bex, 2011: 28; Verheij, 1999: 114). Premiss (3) contains Verheij's excipiens, according to which the rule in premiss (1) is formulated in defeasible terms, that is, subject certain exceptions:

Generally, if X breaches a legal norm, then X has acted unlawfully.

X has breached a legal norm.

There is no applicable ground of justification to X's conduct.

X has acted unlawfully.

This argumentation model is clearly distinguishable from the modified disjunctive syllogism discussed earlier with respect to the conduct requirement. The two models are not distinguishable by their distinct reasoning patterns (fact-to-fact and norm-to-fact), but the unlawfulness model also captures the normative feature of this element in a peculiar way. Firstly, the ‘legal norm’ referred to in the first premisses are the statutory provisions that prohibit corruption across the continent. For example, the accused in Selebi was found to have breached s. 4(1)(a)(ii) of South Africa's corruption statute (Selebi at [113]). This section prohibits public officials from abusing their positions of authority or breaching the public trust bestowed upon them. The accused in Selebi acted unlawfully by regularly disclosing confidential information, which he had obtained by virtue of his position as the Commissioner of Police, to Mr Agliotti in exchange for various financial rewards (Selebi at [101]–[113]). The determination of all three premisses entails complex and multi-layered enquiries, including: the empirical determination of the existence of a legal norm (typically a corruption statute) that the accused is alleged to have breached; the interpretation of the meaning of the content of this norm; the factual determination in premiss (2) whether the accused or defendant has committed conduct that is inconsistent with the meaning of the norm as defined; and the doctrinal ascertainment (typically from decided cases) as to whether any recognised grounds of justification avail the accused or defendant. This variation once again makes it doubtful that the kind of substance-blindness described earlier from parts of Euro-American new evidence scholarship can proceed, without accounting for the relativistic nature of evidential proof (as defined in this essay), unaffected by the risk of material errors.

Conclusion

Euro-American new evidence scholarship is ‘no longer new,’ but it is yet to arrive on African shores. Much of African Evidence scholarship remains trapped in what Lempert referred to as the ‘golden age of doctrinal evidence scholarship,’ which reached its zenith in the mid-20th century, and in the Ramosean perpetual northbound-gaze towards Euro-America for new ideas. However, the current 21st century has taken a slight turn towards decolonial approaches to all forms of scholarship and social practices (Ndlovu-Gatsheni, 2018: i). It is the century when ‘descendants of enslaved, displaced, colonised and racialised peoples have entered academies across the world, proclaiming loudly that they are human beings, their lives matter and they were born into valid and legitimate knowledge systems’ (Ndlovu-Gatsheni, 2018: i). This essay has used the metaphor of ‘here is a table,’ borrowed from Biko, to suggest that African Evidence scholarship are confronted with the analogous dilemma of either taking up a seat at the set table of Euro-American new evidence scholarship or to remake its own table in its own image. A preliminary probative theory of special relativity has been proposed as a possible theoretical foundation upon which Africa can commence its exploration into a future decolonial new evidence scholarship. This way of theorising avoids the trend of substance-blindness that currently prevails in Euro-American scholarship. The implications of this theory are also explained towards the end of the essay by distinguishing between the evidential proof of the elements of conduct and unlawfulness respectively, in the context of the bribery version of the crime of corruption in Africa.

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship and/or publication of this article.

ORCID iD

Tshepo Bogosi Mosaka

Notes

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