The District Court can compel a witness to attend. It can also, within limits, compel the witness to speak, and it can punish one who speaks falsely. The powers are in three different places.
Refusing to be examined
(1) Where a person appears to give evidence or produce documents, in obedience to a summons or warrant, or being present is orally required by the Court to do so, and that person (a) without lawful excuse, refuses to be examined on oath; or (b) refuses to take the oath; or (c) having taken the oath, refuses, without lawful excuse, to answer a question concerning the matter; or (d) refuses or neglects to produce a document without sufficient excuse, the Court may adjourn the proceedings for any period not exceeding eight days, and may in the meantime by warrant commit the person to a corrective institution, police lock-up or other place of security.
(2) If on the adjourned hearing the person again refuses, the Court may again adjourn and commit, and so again from time to time until he consents to be sworn, to give evidence or to produce the documents.
This is coercive, not punitive: the custody ends the moment the witness complies. Because it deprives a person of liberty, the Magistrates’ Manual’s advice is to warn the witness clearly, to consider any excuse offered, and to use the power only when a firm warning has failed. Section 79 requires commitment of a witness to be to a corrective institution or police lock-up, and section 80 allows the witness to be discharged on bail on recognizance instead.
What counts as a lawful excuse
| Excuse | Basis |
|---|---|
| The answer would incriminate the witness | The privilege against self-incrimination; Constitution s 37(10) for a defendant, and the common law for other witnesses |
| Legal professional privilege | Communications between lawyer and client; s 71(2) preserves the National Court subpoena rules for documents |
| The document is not specified or sufficiently described in the summons | s 71(2) |
| The question is irrelevant to the matter of the information or complaint | s 70(1)(c) is confined to questions “concerning the matter” |
| Spouse of a person charged, in some cases | Evidence Act rules on compellability; note that the Family Protection Act 2013 s 23 makes a spouse competent and compellable for offences under that Act |
Section 62(3) adds that a person who appears solely to produce documents need not be sworn at all.
Prevarication
A person who, in the opinion of the Court, wilfully prevaricates in giving evidence is guilty of an offence. Penalty: a fine not exceeding K100.
The Court in the presence of which the offence is committed may immediately convict the person, on its own view or on the oath of some credible witness.
To prevaricate is to evade, to give deliberately shifting or non-responsive answers. It is a contempt-type offence tried summarily on the spot. Unlike other convictions, the Manual notes, a fine under section 277 may be remitted in whole or part if the offender makes a satisfactory apology before the Court rises (section 277(4)). See contempt in the District Court.
Lying on oath
Prevarication is evasion; perjury is a lie. Perjury under the Criminal Code is an indictable offence which the District Court cannot try; a magistrate who believes a witness has lied on oath can refer the matter to the police, and the witness would face committal proceedings like any other indictable charge. Section 94A of the District Courts Act creates a specific offence for committal statements: a person who knowingly makes a false or misleading statement in a document served under section 94 is liable to imprisonment for up to three years. The certificate that section 94(1A) requires every witness to sign warns of exactly that.
The more usual consequence of a lie is not prosecution but disbelief. The magistrate assesses credibility, and the Manual’s advice to magistrates is to make notes of findings on credit where witnesses conflict, because those findings are what the National Court will look for on appeal. Cross-examination that exposes a lie is the defendant’s best tool, and section 60 guarantees the right to it.
Disruption and violence
A witness who interrupts, is disrespectful, or obstructs or assaults someone in view of the Court commits an offence under section 277(1), punishable by a fine of up to K200, and may be excluded from the Court. Where a person in court threatens or uses violence, the Manual notes that the Arrest Act, the Criminal Code and the Summary Offences Act are available, and the police in attendance may arrest.
The magistrate’s approach
The Manual counsels restraint: anger plays into the hands of a difficult witness, and an even-tempered but firm warning of the specific consequence usually works. For a party, the practical point is that a witness who will not cooperate can be compelled through the Court, and a party should ask the magistrate to invoke section 70 rather than abandon the question.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.