KM Simfukwe
Criminal Law Lecture notes
CRIMINAL LAW BLL232
LECTURE NOTES
COMPILED BY: K M SIMFUKWE (MRS)
LLB (UNZA) LLM (LOND.) AHCZ
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Criminal Law Lecture notes
MULUNGUSHI UNIVERSITY
SCHOOL OF BUSINESS STUDIES
DEPARTMENT OF LAW, LABOUR AND HUMAN RESOURCE MANAGEMENT
COURSE TITLE: CRIMINAL LAW II
COURSE CODE: BLL 232
BLL 232- Criminal Law II
Pre-requisite: Criminal Law I
Course Description
This course aims to introduce students to various criminal offences covered in the Zambian Penal
code and other written laws for the time being in force.
Objectives
By the end of the course students should be able to:



Distinguish between the seriousness of the offences, be able to explain the underlying
principles, rules or policy
Identify specific crimes in various scenarios by their elements
Demonstrate knowledge of the parameters and the circumstances that must exist in order for
an accused person to raise various legal defences to criminal liability in the categories
covered in the syllabus
Content:
UNIT 1: INCHOATE OFFENCES



Attempts
Conspiracy
Solicitation
UNIT 2: OFFENCES AGAINST THE PERSON
 Non-fatal offences against the person
 Fatal offences against the person
 Defences against criminal liability
UNIT 3: OFFENCES AGAINST MORALITY
 Non-consensual Sexual Offences
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 Sexual Offences
 Applicable Defences
UNIT 4: OFFENCES AGAINST PROPERTY
 Theft
 Obtaining Money/ Goods by False pretences
 Robbery
 Possession of Stolen goods (property)
 Defences
UNIT 5: OFFENCES AGAINST THE PUBLIC HEALTH
UNIT 6: OFFENCES AGAINST PUBLIC ORDER
 Treason
 Sedition
 Unlawful Assembly
 Riot
UNIT 7: WHITE COLLAR CRIMES



Money laundering
Corruption
Fraud
Method of teaching
Three lectures and one tutorial per week
Assessment
Continuous assessment: 40%
Final Examination: 60 %
Prescribed Readings:
1. Hatchard, J., and Ndulo, M. Case Book on Criminal Law. Government Printers: Lusaka
2. Kulusika, S (2006), Text, Cases and Materials on Criminal Law. Unza Press: Lusaka
3. Smith, J.C., and Hogan, B. (1983). Criminal Law. Butterworths: London
4. Collingwood, J. J. R (1967) Criminal Law of East and Central Africa. Sweet &
Maxwell: London
Legislation:
The Penal Code Act Chapter 87 of the Laws of Zambia
The Criminal Procedure Code Act Chapter 88 of the Laws of Zambia
Money Laundering Act
Human Trafficking Act
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Anti-Gender Based Violence Act No. 1 of 2011
CRIMINAL LAW BLL 242SPECIFIC OFFENCES
Read:
The Penal Code CAP 87 of the laws of Zambia
Introduction
This course will consider specific offences common and emerging within the Zambian
context. Most of the offences that will be considered are provided for under the Penal
Code CAP 87 of the Laws of Zambia which is the primary piece of legislation governing
Criminal law in Zambia. Other pieces of legislation that create criminal offences
include:
1.
2.
3.
4.
5.
6.
Suicide Act
Anti Gender Based Violence Act
Witchcraft Act
Anti Corruption Commission Act
Dangerous Drugs Act
The Prohibition and Prevention of Money Laundering Act No 14 of 2001
The Objectives of the course
By the end of this course students should be able to:
1. Distinguish between the seriousness of the offences and be able to explain the
underlying principles, rules or policy
2. Demonstrate knowledge of the different elements of the different offences
3. Appreciate the circumstances in which criminal liability arises
4. Demonstrate knowledge of the parameters and the circumstances that must
exist in order for an accused person to raise various legal defences to criminal
liability in the categories covered in the syllabus
The Applicable law
As noted earlier, the course will rely heavily on the content set out in the Penal Code
CAP 87 of the Laws of Zambia and its interpretation as set out in various judicial
precedents.
The Penal Code was enacted in 1931 by the colonial government in Northern
Rhodesia. Prior to that date English common law had been in force- defining the
various criminal offences and the applicable sanctions.
The Penal Code is largely a product of English law and consequently Section 3 of the
Act makes the following provision:
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‘This Code will be interpreted in accordance with the principles of legal
interpretation obtaining in England.’
This applies as long as the offence under consideration replicate English common law.
The cases below discuss the application of English law in criminal matters in Zambia.
Read:
Chitenge v The People (1966) ZLR 37
DPP v Chirwa (1968)
Lungu v The People (1972) ZLR 95
It is worth noting that the Zambian judicial system has developed a large body of
judicial precedents in Criminal law that have interpreted English common law or
clarified its application in certain instances. This course will largely rely on these
precedents in interpreting the law.
Key Features of the Penal Code
1. Interpretation section- Section 4 of the Act defines various phrases and terms
used in the Act.
2. The application of the Code- Section 5 and 6 explain where and how the code
will be applied. The courts have power to hear all matters arising from the
breach of this code by any person within the borders of Zambia. However, the
code further provides for the punishment of its citizens for breaches of this code
outside the Zambian borders. Despite the far reaching effects of the code, a
citizen who has been punished outside the borders of Zambia for an act that is
in breach of this code is exempt from punishment within the Zambian borders.
Consequently, it is a defence against punishment in Zambia for a person that
has committed an offence in breach of the Penal Code outside Zambia to
provide proof that he has already been punished by the courts or competent
authority in the jurisdiction in which he committed the crime.
3. General Rules of Criminal liability- Sections 7-20 set out various rules that
define criminal liability in various contexts. Various defences including others
set out in other parts of this Act will be considered and applied to the various
offences that will be considered in this course. Students are encouraged to
revisit their notes on criminal liability and defences from the 1st segment of this
course. Suffice to say that notable among these defences are self-defence,
coercion, intoxication, insanity, immature age and bona fide claim of right.
4. Parties to offences- Sections 21-23 of the Act talks about the various ways in
which a person can be held criminally liable for an offence as a principal
offender. It also addresses the legal position of persons jointly involved in a
criminal enterprise. Chapter 44 of the Code discusses a special category of
criminal offenders referred to as accessories. Students are referred to their
notes on Parties to a crime from the 1st segment of this course
5. Penal Sanctions- Sections 24 to 42 set out the various penal sanctions that can
be imposed on persons that are in breach of the Penal Code. What sanctions
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do we have in this segment? In what circumstances do they apply? What
principles of sentencing apply from this segment?
6. Chapters 7 to 43 of the Penal Code- provide for different divisions of criminal
offences and the various offences that emanate from those categories. It is
clear that there are a wide range of offences. This course will restrict itself to a
few of these as listed in the course outline
Conclusion
In conclusion, this course will largely concern itself with the Penal Code in considering
the categories of offences listed in the course outline. It is hoped that students will
learn how to correctly interpret the provisions relating to criminal offences and their
basic elements as well as the defences recognised by law in respect of those offences.
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UNIT 1- INCHOATE OFFENCES
Prescribed Reading:
1. Chapter 5- Clarkson and Cunningham. 2010. Clarkson and Keating Criminal
Law 7th Edition. Sweet and Maxwell: London
2. Chapter 14- Card, Cross and Jones. 2014. Criminal Law 21st Edition. Oxford:
OUP
3. Chapter 7- Allen and Cooper. 2015. Elliot and Wood’s Cases and Materials on
Criminal Law 11th Edition. Sweet and Maxwell: London
Additional Reading:
1. Chapter 9- CR Snyman. 2016. Criminal Law. Durban: Paarlmedia
2. Chapter 5- Scheb and Scheb. 2011. Criminal Law and Procedure. Wadsworth:
USA
3. Chapters 42 and 43 of the Penal Code CAP 87 of the laws of Zambia
Introduction
Inchoate offences are incomplete or underdeveloped criminal offences. This means
that a particular offence was envisaged by an individual who for one reason or another
was unable to actuate it in full. The failure to complete the intended offence might be
attributed to a voluntary or involuntary decision not to execute one’s criminal intentions
in full.
Incomplete offences however, can still cause harm to the intended person or object
despite being incomplete. For instance where one intends to kill another but fires a
shot that does not prove to be fatal. In this way the law recognises that criminal liability
should not be restricted to persons who actually and effectively commit or participate
in substantive offences. It should include all those who intend to commit a crime even
though they do not fully realise their intentions. Inchoate offences are divided into 3
main categories. These are:
1. Attempt
2. Solicitation
3. Conspiracy
ATTEMPTS
An Attempt is defined in Section 389 of the Penal Code as follows:
1. When a person intending to commit an offence begins to put his intention into
execution by means adapted to its fulfilment, and manifests his intention by
some overt act, but does not fulfil his intention to such an extent as to commit
the offence, he is deemed to attempt to commit the offence.
2. It is immaterial, except so far as regards punishment, whether the offender does
all that is necessary on his part for completing the commission of the offence,
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or whether the complete fulfilment of his intention is prevented by
circumstances independent of his will or whether he desists of his own motion
from further prosecution of his intention.
3. It is immaterial that by reason of circumstances not known to the offender it is
impossible in fact to commit the offence
It should be observed from the definition above that an attempt exists when:
1. The offender makes effort and or endeavours to commit an offence e.g. murder
or rape which crime it is his intention to commit.
2. There is evidence of this effort in a positive act carried out by the offender that
expresses that intention to commit that particular criminal offence
3. An attempt can only exist where there is an act. Consequently, a person cannot
be convicted for attempting to commit an omission that is regarded as a criminal
offence.
4. Also, it is clear from the definition that there is a criminal act envisaged by the
offender that has not been committed at all. It does not matter the reasons for
the offenders failure to commit the substantive offence but just that there was
evidence that he intended to commit that particular offence.
Question:
1. Identify the actus reus and mens rea in an attempt offence
2. Should attempts be punishable under the law? (Refer to ‘The Criminology of
Attempts (1986) Crim. L R. 769 in Chap. 5 Clarkson and Keating Criminal law
text book) and proceeding articles in the chapter)
What constitutes an overt act?
The phrase overt act is not defined in the relevant section on attempts or in Section 4
in the Penal code.
However, an American case, The State v Charbonneau 374 A.2d.321, 322 (Me. 1977)
may shed some light on this question as cited in Scheb and Scheb at page 105. In this
case, a defendant was found guilty of attempting to escape from prison. He appealed
contending the State failed to prove beyond reasonable doubt that he had committed
an overt act as required by law. He characterised his actions as preparatory steps
indicative only of an intention to attempt an escape. The Supreme Judicial Court of
Maine recognised that the State must prove more than mere preparation; it must prove
‘a positive action . . . directed towards the execution of the crime. ‘Yet the court rejected
his contention and affirmed his conviction, stating: ‘(T)here was undisputed evidence
that a dummy was found in the defendant’s cell; that defendant was in an unauthorised
area attempting to conceal his presence: and that a rope ladder was found in a paper
bag close to where it was concealed. (Defendant) had gone far beyond the preparation
stage.
It is clear from this decision that acts that are preparatory to the commission of an
offence will not constitute an overt act as envisaged in our definition of an attempt.
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Read:
1. Gullefer (1990) 3 ALL ER 882, CA
2. Jones (1990) 3 ALL ER 886, CA
Practical Examples of Attempts to Commit a Crime
Attempted Murder
The People v Ackim Manda and Malie Simbeye (1992) SJ (HC)
Justice C B N Kabamba made the following observations in this case as regards
attempted murder:
In the case of attempted murder section 215 of the Penal Code, Cap. 146, states as
follows:
"215, Any person who:
(a)
Attempts 'unlawfully to cause death of another; or
(b)
with intent unlawfully to cause death of another does any act, or omits to
do any act which it is his duty to do, such act or omission being of such a nature as
likely to endanger human life is guilty of a felony and is liable to imprisonment for life."
Both mens rea and actus reus are required to be strictly proved. The mens rea
required for the offence is the intention to kill. This specific intention to kill has been
often repeated in numerous-authorities. It has been held that it is not sufficient either,
to prove that it would have been held that it is not sufficient either, to prove that it would
have been a case of murder if death had ensued. It must be shown that the accused
had positive intention to cause death. In Yanyongo v. The People (1974) ZR. 149 (6)
it was held by the Supreme Court thus:
"For a conviction of attempting to cause death it is necessary to prove an actual
intention to kill an intention to cause grievous harm is not sufficient" (See also R v.
Whybrow (1951) 35 CR. APP. R. 14 Archbold 43rd Para. 20 - 456). (7)
Thus the men rea in this offence is much more limited than mens rea required for
murder. In this offence is not sufficient to prove the intention to cause grievous harm
(Supra), although this is sufficient for murder if the victims dies. In Chilomba v. The
People (1974) ZR. 151 at p. 512 98) it was held:
"As there was no unequivocal finding by the trial judge that there was actual
intention to kill the conviction for attempting to cause death contrary to s.215 of the
Penal Code cannot stand."
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In that case the Supreme Court rejected the proposition by the trial judge that under
s.215 of the Penal Code that a charge may be proved by "showing (a) ..... Or
(b) Knowledge on the part of the accused that what he was doing was imminently
dangerous that it must in all probability cause death or such bodily injury as was likely
to cause death.
As regards actus reus, if there is intention to kill, it may be attempted murder even
though the means adopted to cause death are inadequate to cause death. Thus a
person intending to kill puts poison in another person's beer is guilty of attempted
murder even though the poison is insufficient to kill anybody. It seems clear that
knowledge that death would be caused which implies malice aforethought is not an
element to the charge of attempted murder. In Benwa and another v. The People
(1975) ZR. 1 (9) It was held among other things:
"In a case of attempted murder the charge is to attempt unlawfully to cause
death of another. There is no question of constructive malice in that case; it is
necessary to find the actual intent to kill."
Justice Kabamba held in this matter:
‘For the offence of attempted murder to be proved, it must be shown that the
accused had positive intention to cause death.’
Attempted Theft
Read:
Jonathan Phiri v The Queen (1963- 1964) Z and NRLR 24
Attempted Rape
Read:
1. Robert Kalimukwa v The People (1971) ZLR 85
2. The People v Daniel Lubumbe 5 NRLR 210
Questions:
1. Why didn’t Justice Silungwe A J in the Kalimukwa case follow the precedent
set in the Lubumbe case?
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2. Is the decision in the Lubumbe case without merit? Discuss your answer with
reference to relevant portions of the court’s decision in that case and available
case law
Attempted Aggravated Robbery
Read:
The People v Joseph Mulenga Simukoko (2011) ZLR Vol 1
1. Critically analyse and discuss the arguments set out by defence counsel in this
case in refuting the charge of attempted aggravated robbery taking into account
the authorities cited by counsel and the court. Do you agree with the outcome?
2. How can we distinguish acts that are done in preparation to commit a criminal
offence from acts considered overt in an attempt to commit an offence? Give
examples of case law
B. SOLICITATION
Definition
Solicitation is not defined under the Penal Code but is prohibited criminal behaviour
for which one can be indicted. Examples of criminal offences that criminalise
solicitation in Zambia are:
1. Section 297 and 298 of the Penal Code
2. Section 7 of the Witchcraft Act CAP 90 of the laws of Zambia
In a number of jurisdictions, including the USA, the offence of solicitation is specifically
defined in statutes as a crime arising in various contexts. In this regard, solicitation
may be a felony or a misdemeanour. In Illinois the statutory definition of solicitation is,
‘A person commits solicitation when, with intent that an offence be committed, other
than first degree murder, he commands, encourages, or requests another to commit
the offence.'’(Scheb & Scheb 2011)
Under English Common law solicitation included the following:
1.
2.
3.
4.
Inciting a person to commit a criminal offence
Counselling a person to commit a criminal offence
Soliciting a person to commit a criminal offence
Encouraging the commission of a criminal offence
Actus Reus
The Actus reus in this offence is the request, command or incitement of another to
commit an offence. It was irrelevant that the person incited, counselled, commanded
or requested to act in this manner did not actually carry out the act. Consequently in
the provisions of the law cited in the previous section, the act of solicitation is and of
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itself a criminal offence for which its perpetrator can be charged and punished.
However, where the person solicited to commit a criminal offence has in fact carried
out the act, he is likely to be charged with the commission of the offence under the
provisions of Section 21 of the Penal Code. As noted last semester, this could lead to
an equal punishment with the actual perpetrator of the offence.
Mens Rea
The Mens rea is the intention to incite, encourage the commission of the criminal
offence. The intention might be direct or oblique in certain circumstances
Questions:
1. Distinguish solicitation from an attempt. Use statutory law and case law in
support of your answer
2. What is the rationale for insisting on punishing people that fall into the category
of solicitation when it does not result in any physical harm particularly where
such soliciting does not lead to the commission of a substantive offence
3. Are there any available defences to the offence of solicitation ( Read pages
496-497 Clarkson and Keating Criminal law)
C. CONSPIRACY
Definition:
The phrase ‘conspiracy’ is not defined in the penal code. At common law conspiracy
referred to an agreement by 2 or more persons to commit a criminal offence or to carry
out an act that is not criminal in and of itself by unlawful means. Card, Cross and Jones
at page 541 of their book stated the following:
An agreement was a common law conspiracy if it had one of five types of object:
1. To commit a criminal offence
2. To pervert the course of justice. Generally this did not add much to the first
type, since normally the perversion of justice was a criminal offence;
3. To commit a tort such as trespass, provided the execution of the agreement
had as its object: the invasion of the public domain e.g. trespass in an embassy
or the infliction of injury or damage which was more than nominal;
4. To defraud;
5. To corrupt public morals or to outrage public decency.
The common law position regarding conspiracy has been eroded and overtaken by
statutory provisions that define conspiracy and its parameters in its various forms.
The Penal Code in Chapter 43 recognises the following types of conspiracy:
1.
2.
3.

Conspiracy to commit a felony
Conspiracy to commit a misdemeanour
Conspiracies that have the effect of:
Preventing the execution or enforcement of an Act, Statute or Order
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




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Criminal Law Lecture notes
Causing any injury to the person or reputation of any person, or to depreciating
the value of any property of any person
Preventing or obstructing the free and lawful disposition of any property by the
owner thereof for its fair value
Injuring any person in his trade or profession
Preventing or obstructing by means of any act or acts which if done by an
individual person would constitute an offence on his part, the free and lawful
exercise by any person of his trade, or profession
Effecting any unlawful purpose
Effecting any lawful purpose by unlawful means
Elements
1. Conspiracy involves at least 2 people.
2. The object of conspiracy is the commission of a criminal offence. These
aspects are discussed in the case of Kinglos Kangaza v The People (1971)
ZLR 90 in which the appellate court noted the following:
The law relating to this situation in the case of conspiracy is quiet clearly laid down in
R. v Plummer (1), which case was followed by the Federal Supreme Court in the case
of Chitambala and Others v R. (2). In that case at p. 172 Claydon, A.C.J., refers to
the previously cited law and to the case of Dharmasena v The King (3) in which Lord
Porter said "it is well established law that if two persons are accused of conspiracy
and one is acquitted, the other must also escape condemnation. Two at least are
required to commit the crime of conspiracy, one alone cannot do so." Claydon, A.C.J.,
went on to say, "That this is so even where the acquittal has come about by reason of
shortage of evidence appears in the case of Hillman 23 Criminal Appeal Reports, 53."
In the case of R. v Plummer, Bruce, J., pointed out at p. 616 that unless the indictment
alleges conspiracy with persons unknown acquittal of other persons named in the
indictment as conspirators necessarily results in the acquittal of the one left even if he
has pleaded guilty. This statement by Bruce, J., follows Chitty on Criminal Law (2nd
Ed.) and although Bruce, J., said this was fully supported by the authorities it does not
appear that until that time there was any authority that it was necessary to allege a
conspiracy with certain persons unknown in order to secure a conviction where codefendants were acquitted. In the case of Hillman and in the case of Chitambala it
was found that there had been no communication between the appellants and either
a convicted co-conspirator or a person named in the indictment as having joined in the
conspiracy and not acquitted thereof. This finding is clear because conspiracy
depends upon communication between two persons. The offence of aggravated
robbery, whilst only capable of being committed by more than one person (or by one
person who is armed) is not necessarily dependent upon there being communication
between the parties. If two persons without any prior communication between them
contemporaneously beat and rob another person that would constitute the offence of
aggravated robbery. This equally applies in the case of riot.
In R. v Plummer, Wright, J., referred to the case of R. v Sudbury cited in 91 E.R., 502
in which it was held that when only two out of three were found guilty of riot (it being
necessary for more than two persons to join together in order to constitute the offence
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of riot) and there was no allegation of "cum aliis" they were entitled to acquittal on
appeal. The report in the case of R. v Sudbury does not however indicate whether on
the facts there were other unknown persons who took part in the riot who could have
been referred to in the charge by the words "cum aliis".
The interpretation of the law that "other persons unknown" must be referred to in the
charge seems to be based on the Sudbury case and the extract from Chitty on Criminal
Law referred to by Bruce, J., in the Plummer case.
(2) Nsama and Others v The People (1976) ZLR 171 (SC)
The three appellants were charged with one count of conspiracy, three counts of theft
by servant and one count of attempted theft. They were convicted on one count of
conspiracy, three counts of obtaining money by false pretences, three counts of
cheating, one count of attemping to obtain money by false pretences and one count
of attempted cheating.
The facts alleged by the prosecution were that the third appellant opened a current
banking account with the National Commercial Bank Limited into which various sums
were deposited totalling K24,017.73.
The first and second appellants were employed in the National Commercial Bank in
such capacities that they were able by falsifying account documents to perpetrate a
fraud whereby the account of the third appellant was improperly credited with money
and three other customers of the bank were improperly debited. The third appellant
drew three cheques on his account totalling K12,000.00 and shared the proceeds with
the other two appellants.
Both counsel submitted that the appellants should not have been charged with
conspiracy in addition to the substantive offences which were the result of such
conspiracy. It was also submitted that the magistrate was wrong in substituting
convictions of obtaining money by false pretences and cheating for the original charge
of theft by servant. Objection was also taken by counsel as regards the failure to exhibit
in the trial court the cheques that were presented to the bank.
Held:
(i)
A conspiracy charge should not be used in lieu of a charge for a specific
offence and it is wrong to include a charge for conspiracy in an indictment
which contains charges for specific offences which were the subject of the
conspiracy.
What does the decision in The Nsama case above imply?
Read and apply:
1. Shamwana and 7 Others v The People (1985) ZLR 41 (SC)
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2. Charles Ogbonnia Nwume v The People (1980) ZLR 189 (SC) in support of
your answer
Conspiracy as an overt act in a charge of Treason
Laurent Knayembu and Rodger Kambwita v The People (1982) ZLR 122 the court
made the following observations:
‘It is law that in treason evidence is led to proof of the overt acts. In the present case
one of the overt acts is conspiracy. Before the commencement of trial, even at the
close of prosecution case, it was argued that the overt of conspiracy should not be
included in the information, or alternatively if it is put there, better particulars should
be given. My rulings on the issue are on record and I need not go through them again.
As I said in one of my rulings that conspiracy is a very difficult offence to prove because
of its very nature of secrecy, and yet the burden of proof never changes, it is always
beyond reasonable doubt. It has been said that "A conspiracy consists of an unlawful
combination of two or more persons to do that which is contrary to law or to do that
which is wrongful and harmful towards another person," per Lord Brampton in the case
of Quinn v Leathem (23) at p.528. It has also been said that "conspiracy is usually
proved by providing acts on the part of the accused which lead to the inference that
they were acting in concert in pursuance of an agreement to do an unlawful act", Per
Viscount Kilborne in the case of R. v Doot (24) at p. 540:
In the case of R. v Griffiths (25) Paull J., had this to say on conspiracy as an agreement
and as to conspirators at p.453:
"They may join in at various times, each attaching himself to that agreement;
any one of them may not know all the other parties but only that there are other parties;
any of them may not know the full extent of the scheme to which he attaches himself.
What each must know, however, is that there is coming into existence or is in
existence, a scheme which goes beyond the illegal act which he agrees to do."
However, where conspiracy is laid down as an overt act in a treason charge, this must
be proved first before acts of one conspirator are taken to be acts of the other
conspirators in furtherance of that common design.’
Questions:
1. What is conspiracy?
2. What are the elements of conspiracy?
3. Scheb and Scheb at page 121 ask the following question:
A state statute makes it a criminal offence for ‘3 or more persons to conduct direct or
own a gambling business’. Several persons were convicted of conspiring to violate the
statute. In addition, each was convicted of the substantive offence of gambling. On
appeal each defendant argues that the conspiracy offence merged into the substantive
offence of gambling because the offence of gambling required participation of a
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number of persons. The State counters that the harm attendant upon commission of
the offence of gambling is not limited to the parties to the conspiracy. Moreover, it
points out that those prosecuted for the conspiracy would not necessarily be identical
to those who are prosecuted for the substantive offence of gambling. How should an
appellate court rule in this instance? Why?
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Unit 2
OFFENCES AGAINST THE PERSON
INTRODUCTION
The Penal Code has divided offences against the person into the following categories:
1.
2.
3.
4.
5.
6.
7.
Murder and Manslaughter- Chapter 19
Duties Relating to the preservation of life and health- Chapter 20
Offences connected with Murder- Chapter 21
Offences endangering life or health- Chapter 22
Criminal Recklessness and Negligence- Chapter 23
Assaults- Chapter 24
Offences against liberty- Chapter 25
MURDER
Read:
1. Chapter 7- Hatchard and Ndulo. A case Book on Criminal Law. 1983.
Government Printers: Lusaka
2. Chapter 8- Clarkson and Cunningham. 2010. Clarkson and Keating Criminal
Law 7th Edition. Sweet and Maxwell: London
3. Chapter 8- Allen and Cooper. 2015. Elliot and Wood’s Cases and Materials on
Criminal Law 11th Edition. Sweet and Maxwell: London
Additional Reading:
4. Chapter 14- C R Snyman. 2016. Criminal Law. Paarlmedia: Durban
Definition of Murder:
Section 200 of the Penal Code creates the offence of Murder by defining it in the
following way:
‘Any Person who of malice aforethought causes the death of another person by
an unlawful act or omission is guilty of Murder’.
Elements of the offence
In order for a person to be convicted for the offence of Murder, the prosecution must
prove the following ingredients of the offence beyond reasonable doubt:
1. Causing the death- this entails that the accused person must be the conduit
through which the victim meets his or her death through an act or omission on
the part of the accused. The accused must have done the act or omission
voluntarily in order for a conviction to be sustained. Snyman at page 438 in his
book on Criminal law also notes that, ‘the act or omission qualifies as the cause
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of Y’s death if it is both the factual and legal cause of death. It is the factual
cause of death if it is a condition sine qua non, that is, an indispensable
condition, of the death, which means that X’s conduct cannot be thought away
without Y’s death disappearing at the same time. It is the legal cause of Y’s
death if a court is of the view that there are policy considerations for regarding
it as the cause of Y’s death.’
Q. Define proximate cause, adequate causation and ‘novus actus interveniens’
theories of legal causation and discuss how they apply to the offence of murder
Q. What does the phrase ‘causing death mean? – Read Section 207 of the Penal Code
2. The act or omission must be unlawful- The concept of unlawfulness was
discussed in the 1st segment of this course and students are accordingly referred to
their notes on the subject. Suffice to say that an act or omission that is on the face of
it unlawful may not be deemed unlawful on account of various legally recognised
defences that ‘justify’ the actions of the accused person. These include: self-defence,
provocation, duress/ coercion, obedience of lawful orders, capacity etc. it is worth
noting that the law in Zambia does not recognise consent by the victim as a viable
defence for an accused person. Consequently assisted suicide would in fact attract a
conviction for Murder in most cases.
3. The victim in the offence of murder must be a human being
Q. who is a person? - Read Section 208 of the Penal Code. What are the implications
arising from that definition?
4. Malice Aforethought
Malice aforethought is the mens rea for murder- it is an expression of the accused
intention to cause the death of the victim. It is defined under Section 204 of the Penal
Code.
In DPP v Lukwosha (1966) ZLR 14 it was held that:
‘In a charge of Murder, it is the malice of the perpetrator of the deed and not that of
some hypothetical reasonable man that must be proved, although, in evaluating the
evidence, it is often useful to consider what a reasonable man would have intended or
forseen.’
Questions:
1. identify the various ways that malice aforethought may express itself as
provided under section 204
2. Malice in murder cases can be express, implied or constructive. Distinguish
these 3 categories of malice (pages 625-626 Clarkson and Keating Criminal
law). Which of these categories are expressly provided for in the Penal Code?
The observations of Allen and Cooper in understanding the parameters of malice
aforethought are worth noting. They observe that:
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If, therefore, “malice aforethought “is a technical term whose meaning implies neither
ill will nor premeditation, a person who kills out of motives of mercy or compassion to
alleviate suffering may nevertheless be guilty of murder, just as a person who kills in
the heat of the moment’ without prior planning may be guilty of murder.’ In Inglis (2010)
EWCA Crim 2637, the Court of Appeal upheld the conviction for murder of a mother
who killed her son by a heroin injection as he lay in a hospital bed seriously ill. She
regarded the act as a mercy killing but the court of appeal reiterating that position that
all ‘mercy killings’ are unlawful and any change in the law is a matter for Parliament
Lord Judge C J stating (at 37)
‘We must underline that the law of murder does not distinguish between murder
committed for malevolent reasons and murder motivated by familial love. Subject to
well established partial defences like, (loss of self-control) or diminished responsibility,
mercy killing is murder.’
Read:
1. Regina v Samson Manuwa (1952) N.R.L.R 176- (Case is discussed at page 65
of ‘Sexual offences and how we handle them’ by Joseph Daka) to see the
practical import of Section 204 ( c )
2. Chitenge v The People (1966) ZLR 37
5. Death must occur within 1 year and a day
Section 209 of the Penal Code limits liability to deaths that take place with one year
and a day of the act or omission that is believed to have caused death. It categorically
states that a person will be deemed not to have killed a person if the death falls outside
this period of time. The implication is apparent- no liability for murder can arise outside
this period. However, no such limitation exists for other crimes such as the various
assaults that fall within the division of offences against the person. The rationale
behind this rule at the time of its formulation lay in the fact that it was very difficult to
ascertain or verify the cause of death long after the act or omission that was purported
to have caused it due to the limitations in medical science.
It is worth noting that this rule has been abandoned in a number of jurisdictions like
some states within the USA because of the advancements in medical science which
have made it possible to ascertain the cause of death in a person long after the act or
omission constituting it has taken place.
6. The perpetrator of the offence must be a human being of sound mind having
attained the age of discretion. Insanity is a defence available to an accused
person that is charged with murder. It negates the mens rea of the offence and
consequently relieves the individual of criminal liability. In these circumstances
an order is made to detain the individual for an indefinite period of time at the
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President’s pleasure. The age of discretion is at least 8, below this a person is
deemed incapable of committing a criminal age.
Cases relating to the definition above:
1. R v Palamba s/o Fundikila and Kamumbi s/o Sikulo ( Court of Appeal for
Eastern Africa, 1947)
2. R v Jordan (Court of Criminal Appeal, England, 1956)
3. R v Smith (Court Martial Appeal Court, England, 1959)
4. Kazembe and Zebron v The People (CA) 1969 ZLR 22
5. Chitenge v The People (CA) 1966 ZLR 37
6. Lungu v The People (1972) ZLR 95
Defences to Murder
There are a number of common defences that accused persons may raise in respect
of a charge of murder in order to escape criminal liability or to have the charge lowered
to a less serious offence such as manslaughter or infanticide. We will consider a few
of these and see their practical application in real life cases. Students are advised to
review the definition of these defences from the 1st segment of the course and study
the cases to appreciate the practical challenges that exist in raising these defences
Self - defence
This defence is provided for under Section 17 of the Penal Code to which you are
referred. What are the elements of this defence?
Read:
1. The People v Mudewa (1973) ZLR 147
Insanity
Section 12 of the Penal Code. What are the elements of this defence?
Read:
1. Mbaye v The People (1975) ZLR 74
2. Chinyama v The People (1975) ZLR 140
3. Chabala v The People (1975) ZLR 128
Diminished Responsibility
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Section 12 A of the Penal Code introduced the defence of diminished responsibility.
Identify the components of this defence
Provocation
Sections 205 and 206 of the Penal Code provide for the defence of provocation.
Identify the elements of provocation
Read:
1. Ndumba v The People (1975) ZLR 93
2. Chileshe v The People (1975) ZLR 236
A successful defence of provocation will result in a conviction for manslaughter.
However, a failed defence of provocation is an extenuating circumstance, which will
result in a conviction for murder but a sentence other than the death. A failed defence
of provocation is a defence that fails to effectively reflect the ingredients of the defence
as envisaged by Section 206 of the Penal Code
Intoxication
Section 13 of the Penal Code provides for the defence of intoxication. It is worth noting
that intoxication is not ordinarily a defence against criminal liability. However, the
parameters of this defence are explained in Section 13 to which you are referred.
Read:
1.
2.
3.
4.
Katundu v The People (1967) ZLR 181
Chinkashila v The People (1978) ZLR 217
Sichote v The People (1975) ZLR 32
The People v Kufekisa (1975) ZLR 188
Punishment for Murder
Section 201 prescribes the punishment for Murder. There are 2 possibilities:
1. Death- Section 25 of the Penal Code limits the mode of death to hanging.
Consequently no other method may be adopted. The death sentence is
mandatory on a conviction of murder.
2. Any other Sentence where it can be proved that there were extenuating
circumstances
What are extenuating Circumstances?
Section 201 (2) (a) Defines extenuating circumstances as follows:
‘An extenuating circumstance is any fact that is associated with the offence
which would diminish morally the degree of the convicted person’s guilt;’
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This definition could include a wide range of factors. The courts are therefore duty
bound to consider the standard behaviour of an ordinary person of the class to which
the accused person belongs.
Read the following cases for examples of Extenuating circumstances:
1. Jack Chanda and Kennedy Chanda v The People SCZ Judgment No. 29 of
2002
2. Herman Mvula v The People SCZ Judgement No. 6 of 1991
The consideration of extenuating circumstances only applies to Murder cases.
Consequently the Supreme Court has ruled that it does not apply to cases of armed
aggravated robbery where the mandatory sentence is death.
Read:
1. Francis Chongo, Peter Ngosa Makola v The People (SCZ Judgement No. 10
of 1998
2. Simon Mudenda v The People SCZ Judgement No. 19 of 2002
OFFENCES CONNECTED WITH MURDER
Introduction
Chapter 21 highlights a number of offense that are related to Murder. We will briefly
discuss these below:
Attempted Murder
This offence is an inchoate offence. Section 389 (1) of the Penal Code defines an
attempt in this way:
‘When a person, intending to commit an offence, begins to put his intention into
execution by means adapted to its fulfilment, and manifests his intention by some overt
act, but does not fulfil his intention to such an extent as to commit the offence, he is
deemed to have committed the offence.’
The section goes further to explain that it is not necessary for the perpetrator of the
offence to do everything necessary to complete the commission of the offence or that
he was prevented from completing it for the offence of attempted Murder to be
committed.
Read:
Benwa and Another v The People (1975) ZLR 1
Section 215 of the Penal Code defines the offence of attempted Murder in this way:
‘Any person who(a) Attempts unlawfully to cause the death of another; or
(b) With intent unlawfully to cause the death of another does any act or omits to do
any act which it is his duty to do such act or omission being of such nature as
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to be likely to endanger life; is guilty of a felony and is liable to imprisonment for
life.’
Questions:
1. Does the prosecution need to establish malice aforethought for a conviction of
attempted Murder to stand?
2. Why doesn’t the law provide for attempted Manslaughter or attempted infanticide?
Child Destruction
Compare and contrast Section 221 and Section 152 of the Penal Code? Is there any
significant distinction between the offences of child destruction and abortion?
Written Threat to Murder
The law views Murder as a serious criminal offence. This is demonstrated by the fact
that a conviction attracts the ultimate sentence of death. Section 218 accordingly
makes it a serious offence to cause a person to receive a written threat to kill him/her.
The punishment applicable is a maximum term of 7 years.
Conspiracy to Murder
It is a criminal offence to conspire with others to Murder a person regardless of the
whereabouts of that person. This offence is provided for under Section 219. The Penal
Code does not define the term conspiracy but has dedicated chapter 43 within the
code to discuss it. Students are referred to that chapter to get an idea of this subject.
Unit Exercise
1. Is the requirement that the death of a victim within 1 year and a day in defining
murder fit for purpose? Discuss
2. In R v Dudley and Stephens (1884) 14 Q B D 273, the accused persons were
on a boat with the victim which had been damaged by a storm. They shared the
little food they had on the boat for a period of 10 days. A suggestion was made
that they cast lots to ascertain who should be sacrificed to provide food for the
2 that would survive. One of them rejected the suggestion. The accused
persons conspired and killed the victim whose flesh they ate to sustain
themselves till they were rescued 4 days later. They raised the defence of
necessity against the charge of murder on the ground that they would have died
of famine within those 4 days and that there was no help in sight.
(i)
Discuss the common law defence of necessity and its constituent
elements
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(ii)
Was the court justified in rejecting the defence of necessity in view of the
circumstances described above? Explain
(iii)
What is the relationship between morality and the law
3. X was married to Y who was in the habit of brutally beating her up whenever
they argued or he came home from a drinking spree. One evening when Y
returned home from a spree, drunk and exhausted, he repeatedly informed his
wife that he was going to beat her up first thing in the morning. Y went to bed
and slept leaving X wide awake. X boiled water on the stove which she took
and poured it all over Y as he slept on their bed. Y sustained severe burns to
his body. Y died 10 days later.
(i)
X has raised 3 defences, namely provocation, duress and diminished
responsibility against a charge of Murder. How viable are these defences
in view of the facts set out above? Discuss with the aid of decided cases
(ii)
Would X be absolved of liability in this case if she had a history of mental
illness?
4. In Goodfellow (1986) 83 Cr App Cases 23, G was living in a council house
somewhere in England. He picked an argument with his neighbours or vice
versa. He decided it was best for him to move elsewhere but could not find
someone to exchange with. He decided to burn that house so that he could be
given another one. He forgot that his girlfriend and child were sleeping in the
house. They were killed in the inferno. He was charged with manslaughter. In
the Zambian scenario which charge would succeed, Murder or ManslaughterGive reasons for your answer. The answer must be supported by statute and
case law
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UNIT 2 Continued
OFFENCES AGAINST A PERSON
Recommended Reading:
1. Chapter 19 and 20 of the Penal Code CAP 87
2. Suicide Act CAP 89 of the Laws of Zambia
3. John Hatchard and Muna Ndulo. 1983. A case book on criminal law.
Government Printers: Lusaka
MANSLAUGTER
Definition:
Manslaughter is defined in Section 199 of the Penal Code as:
‘Any person who by an unlawful act or omission causes the death of another person
is guilty of the felony termed ‘man- slaughter’. An unlawful omission is an omission
amounting to culpable negligence to discharge a duty tending to the preservation of
life or health, whether such omission is or is not accompanied by an intention to cause
death or bodily harm.’
Ingredients of the offence of Manslaughter
1. An unlawful act or omission. Students are referred to Chapter 20 of the Penal
Code, Sections 210- 214 that outline duties that we have relating to the
preservation of life and health to appreciate the scope of an unlawful omission
as envisaged by this section
2. The act or omission must be carried out by a person
3. The act or omission must have caused the death of the deceased. The phrase
‘causing death ‘is defined by Section 207 of the Penal Code to which students
are referred. This suggests that the victim of the offence was alive at the time
the act or omission had been carried out
Manslaughter may arise in the following circumstances:
1. Where the death is caused by an act that is unlawful and or dangerous.
In John Mpande v The People (1976) ZLR Baron D.C.J. stated the following when
discussing manslaughter:
‘The offence of manslaughter does not consist simply in an unlawful act resulting in
death. The famous dictum of Humphreys, J., in R v Larkin (1943) 1 ALL ER 217 has
been followed in many cases:
‘ Where the act which a person is engaged in performing is unlawful, then if the same
time it is a dangerous act, that is an act which is likely to injure another person and
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quite inadvertently the doer of the act causes the death of that person by that act, then
he is guilty of manslaughter.’
‘In R v Church Edmund Davies (1965) 2 ALL ER 72, Edmund – Davies J at page 76
illustrated the sense in which ‘dangerous’ as used in Larkin should be understood:
‘. . . An unlawful act causing the death of another cannot, simply because it is an
unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably
to follow, the unlawful act must be such as all sober and reasonable people would
inevitably recognise must subject the other person to at least, the risk of some harm
resulting therefrom, albeit not serious harm.’
Read:
Constain Hamwenda v The People (1980) ZLR
2. Suicide Pacts
The Suicide Act CAP 89 of the Laws of Zambia makes the following provision for
persons involved in a Suicide Pact:
7. (1) It shall be manslaughter, and shall not be murder, for a person acting in
pursuance of a suicide pact between him and another to kill the other or be a party to
the other being killed by a third person.
(2) Where it is shown that a person charged with the murder of another killed the
other, or was a party to his being killed, the onus shall be on the defence to prove that
the person charged was acting in pursuance of a suicide pact between him and the
other.
(3) For the purposes of this section, "suicide pact" means a common agreement
between two or more persons having for its object the death of all of them, whether or
not each is to take his own life, but nothing done by a person who enters into a suicide
pact shall be treated as done by him in pursuance of the pact, unless it is done while
he has the settled intention of dying in pursuance of the pact.
Question:
Discuss the possible rationale for the decision to make participation in a suicide pact
an offence amounting to manslaughter rather than Murder
3. Defence of Provocation
It is an established rule that where provocation is successfully pleaded in a Murder
case the result is a conviction for Manslaughter. Students are referred to the notes on
Provocation and case law discussed in the lecture on Murder
4. Defence of Diminished Liability
Section 12 A (4) of the Penal Code categorically states that the defence of diminished
responsibility if proven in a case of Murder will inevitably result in a conviction for
Manslaughter
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Punishment for Manslaughter
Section 202 of the Penal Code indicates that a conviction for Manslaughter can attract
a maximum sentence of life imprisonment.
Accidental Killing- classification
The case highlighted below is significant in that it discusses the definition of
manslaughter and addresses the question whether or not an accidental killing can be
classified as manslaughter. Clearly, an accidental killing lacks the ingredient of malice
aforethought to qualify as murder. On the other hand it remains unlawful to take the
life of another except in very exceptional cases which are defined by law.
The People v Muzungu HKS/08/2011 -2011 ZLR Vol 1 - the facts of this case were as
follows:
The accused was charged with three counts of manslaughter contrary to section 199
of the Penal Code. The particulars of the offence are that the accused unlawfully
caused the death of three named persons. The accused pleaded not guilty to all the
three counts when he was called to plead. Held:
1.
Whereas section 199 of the Penal Code provides a definition of “an unlawful
omission”, it does not define “an unlawful act”.
2.
Involuntary manslaughter is committed where death results from an unlawful
act which any reasonable person would recognize as likely to expose another to the
risk of injury; and where death is caused by reckless or grossly negligent act or
omission.
3.
Accidental killing is excluded as a crime of manslaughter.
4.
An event occurs by accident if it is a consequence which is in fact unintended,
unforeseen, or such that a person of ordinary prudence would not have taken
precautions to prevent its occurrence.
5.
Where the act which a person is engaged in is unlawful, then if at the same time
it is a dangerous act, that is, an act which is likely to injure another person, and quite
inadvertently the doer of the act causes the death of that other person by that act, then
he is guilty of manslaughter.
6.
An unlawful act causing the death of another cannot, simply because it is
unlawful, render a manslaughter verdict inevitable for such a verdict inexorably to
follow, the unlawful act must be such as all sober and reasonable people would
inevitably recognize must subject the other person to at least the risk of some harm
resulting, therefrom, albeit not serious harm.
7.
The accused intended to kill some human beings or to cause grievous harm;
he foresaw human death or grievous harm as a likely result of his action; further a
reasonably prudent person in his position would have realized that death, or grievous
harm was likely to result of such an act.
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Question:
Does a person who has killed another accidentally escape criminal liability altogether
on that account? Could he be charged with any other offence other than
Manslaughter?
Further readings:
1.
Andrews v Director of Public Prosecutions [1937] ALL E.R. 552.
2.
Andrews v Director of Public Prosecutions [1957] ALL E.R. 522.
3.
Lubendae v The People (1983) Z.R. 54.
5.
Kaunda v The People (1990-1992) Z.R. 215.
6.
R v Adomako [1994] 3 ALL E.R. 79.
INFANTICIDE
Section 203 of the Penal Code reads as follows:
‘Where a woman by any wilful act or omission causes the death of her child under the
age of 12 months, but at the time of the act or omission the balance of her mind was
disturbed by reason of her not having fully recovered from the effect of giving birth to
the child or by reason of the effect of lactation consequent upon the birth of the child
then, notwithstanding that the circumstances were such that but for this section the
offence would have amounted to murder, she shall be guilty of the felony to wit of
infanticide, and may for such an offence be dealt with and punished as if she had been
guilty of the offence of Manslaughter of the child.’
Question:
Can an act or omission be wilful if the balance of a person’s mind has been disturbed?
What does ‘wilful’ mean in this context?
Elements of the Offence of Infanticide
1. Voluntary/ deliberate act or omission on the part of the perpetrator of the
offence
2. Victim must be a child below the age of 12 months
3. The victim must be the biological child of the perpetrator of the crime
4. The perpetrator must have been labouring under an imbalance of the mind
resulting from child birth or breast feeding
The offence of infanticide is clearly a defence available to women that have been
charged with the Murder of their infant child. Medical evidence will normally be
required to ascertain the effect of child birth or lactation on the woman seeking to rely
on the defence. However, in practice where a woman kills her child after giving birth
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or a short while afterwards within the stipulated time, plea bargaining will often result
in the parties settling for the replacement of a charge of Murder with infanticide.
Unit Questions:
1. Explain how the offence of Murder differs from manslaughter, particularly where
the act that has caused death is dangerous
2. X was a member of the defence forces. He had in his possession a loaded
firearm whilst in the company of his companions. During their interaction with
each other X unloaded the firearm. However, he did not know that the gun
retained a single bullet. He began to play with the firearm much to the
amusement of his colleagues. Whilst playing with the firearm X discharged the
lone bullet which killed one of his companions. Discuss the nature of his liability
if any with the support of decided cases
3. B, C and D belong to a cult referred to as ‘forever’. The group believes that they
can attain immortality by taking their lives whilst in fellowship with each other.
The prescribed mode is by consuming the forever drink. B, C and D agree to
go through the ritual together so that they can attain immortality. D offers his
home for the activity. The trio gather at the home and decide that since they
were going to leave this world it wouldn’t hurt to enjoy their local alcoholic brew
a hobby they had maintained as friends. Whilst drinking alcohol, C expresses
doubts about attaining immortality after taking the forever drink and fears that
consuming the drink would lead to a painful end but B and D assure him it will
be a painless process especially that they were consuming alcohol beforehand.
However, B and D were aware that the forever drink consumption had serious
side effects other than death which included excruciating body pains before
death could result but they sincerely thought the reward of immortality far
outstripped any pain they might have to endure. After significant alcohol intake
D served the forever drink. C almost immediately after consuming the first sip
was writhing in pain and began to scream he wanted out of it. B and D for whom
the effects had not established poured some more forever drink and forcibly
administered it to C who died moments later. On witnessing C’s death B filled
with guilt over C’s death took the remaining forever drink and consumed it in
the hope that he would die too. Neither B nor D died. They have both been
charged with murder. Advise them
4. In a number of jurisdictions, Mansalughter is categorised as voluntary and
involuntary manslaughter? Describe these distinct categories of manslaughter.
How are they distinguished from each other?
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UNIT 3
OFFENCES AGAINST MORALITY
Statutes:
1. The Penal Code CAP 87 of the Laws of Zambia- Part 15
2. The Anti-Gender Based Violence Act of 2011
Prescribed and Recommended Reading:
1. C R Snyman. 2016. Criminal Law. Chapter 11
2. John Hatchard and Muna Ndulo. 1983. A Case book on Criminal Law.
Government Printers: Lusaka- Chapter 9
3. Joseph Daka. 2005. Sexual Offences and how we deal with them. Missions
Press: Ndola
Introduction:
The Collins Paper back English dictionary defines morality as follows:
‘Good moral conduct’. What is good is often defined by our religious, cultural beliefs,
environment and family backgrounds. The law to a large extent replicates these beliefs
though not entirely so. We can identify with the cultural and religious norms that restrict
sex to the marriage relationship impose a duty to preserve the life of the unborn child,
to protect young lives as adults in society and to refrain from acts that are likely to
cause harm to others. The Penal Code CAP 87, which is the chief piece of legislation
relating to offences against morality, has dedicated Chapter 15 to crimes that offend
morality by encapsulating some of the norms we have referred to above.
In its division, we will note the following broad categories of offences:
1. Sexual and related offences- these include: rape, indecent assault, defilement,
incest, unnatural offences
2. Child trafficking
3. Abortion
4. Harmful cultural practices
This lecture will endeavour to discuss as many offences that fall within this segment
of the Penal Code. We will consider among other things:
1. the elements that constitute the specific crimes;
2. the defences available to those that are charged with these crimes;
3. the practical challenges that arise in the prosecution and defence of these
crimes;
4. the remedies and sanctions provided by law
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SEXUAL OFFENCES
Read:
1. Chapter 3- Joseph Daka. 2003. Sexual Offences and how we deal with them.
Mission Press: Ndola
RAPE
Rape has been classified as a felony to demonstrate the seriousness and heinousness
of the offence. As will be noted later in this lecture it attracts a maximum prison term
of life imprisonment.
Rape is generally understood to be a violent crime which abrogates the victims’ right
to choose the person with whom she can share sexual relations. Non-consensual
sexual activity is traumatic, abhorrent and demeaning for the victim as rightly observed
by Snyman at page 345. In our society and generally from a religious perspective sex
should only be enjoyed in a marriage relationship and consequently having sex outside
marriage in such an unfortunate context is greatly frowned upon. This lecture will
however, consider ‘rape’ from a legal point of view
The Definition
Section 132 of the Penal Code CAP 87 of the Laws of Zambia defines Rape as follows:
‘Any person who has unlawful carnal knowledge of a woman or girl, without her
consent, or with her consent, if the consent is obtained by force or by means of threats
or intimidation of any kind or by fear of bodily harm, or by means of false
representations as to the nature of the act, or, in the case of a married woman, by
impersonating her husband is guilty of the felony termed ‘rape’.
Elements of the offence
Like all other criminal offences, the onus is on the Prosecution to prove that the
accused committed the offence of rape as defined above. In order to do this, the
Prosecution must prove that all the elements of the offence have been properly
established.
The following elements constitute the offence of Rape:
1.
2.
3.
4.
unlawful carnal knowledge
victim is female- i.e. girl/ woman
the act has been committed without the victims’ consent
alternatively to 3 above, where there is evidence of consent, it has been
obtained by force or by means of false representations
The actus reus in the offence of rape is the act of unlawfully having carnal knowledge
of the victim. On the other hand, the mens rea is the knowledge held by the accused
person that the victim has not consented to having sexual relations with him or in the
alternative that such consent has been obtained by force or by means of false
representations. Black’s Law Dictionary, 9th edition defines consent as follows:
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‘Agreement, approval, or permission as to some act or purpose, especially given
voluntarily by a competent person; legally effective assent. . . Consent may be a
defence to a crime if the victim has the capacity to consent and if the consent negates
an element of the crime or thwarts the harm that the law seeks to prevent.’
What is ‘unlawful carnal knowledge’?
The phrase ‘carnal knowledge’ is not defined in the Zambian Penal Code.
Consequently much reliance is placed on English Law to ascertain its meaning.
Carnal knowledge is an archaic term used for ‘sex’. In the legal context it refers to, at
least, at the bare minimum, mere penetration of the male sexual organ into that of the
females’ sexual organ. Padfield in his book ‘Law made Simple’ quotes (Lines, 1844)
which states, ‘the least degree of penetration per vaginam is sufficient, and it is not
necessary to prove the hymen is raptured’.
When is sex deemed to be unlawful?
A person can legally consent to have sex if they have attained the age of 16. This right
is enshrined in the Marriage Act, Cap 50 of the laws of Zambia. The right can be
inferred by the fact that the Marriage Act permits marriage at that age. In view of this,
the kindred offence of defilement caters for girls below the age of 16, who cannot
legally consent to sex by making it a crime to have sex with children in that category.
There has been debate whether or not this age should be increased to 18 or 21 to
afford protection to children from early marriages and to facilitate their concentration
on their school work.
In the context of the offence under discussion this is significant because it means that
sex is not unlawful if the girl or woman has attained the legal age of consent and has
provided their consent to have sex with a particular man. It was assumed at common
law, that sex was a right in a marriage relationship, thereby excluding husbands from
prosecution in the event of their wives filing a complaint. Consequently, it was unlawful
to have sex with a woman not your wife qualified by the absence of consent.
The question regarding a husband’s position in regard to an allegation of rape was
discussed in Hale’s Pleas of the Crown where it was said:
‘a husband cannot be guilty of rape upon his wife for by their mutual matrimonial
consent and contract the wife have given up herself in this kind to her husband which
she cannot retract.’
Read:
1. R v Clarke (1949) 2 ALL ER 448; Cr. App. R. 216- cited in R v Miller (Winchester
Assizes, 1954) at page 280 of Hatchard and Ndulo cases and materials listed
above- the case looks at the position of the husband where there is a separation
order affecting the couple
The Parties to the offence
The offence of rape defined above clearly identifies the victim of the offence as a
female and does not include male victims. However, the parties to this offence are not
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limited to the actual perpetrator of the offence but could include other categories of
offenders as anticipated by Section 21 of the Penal Code.
In DPP v Morgan and Others (1975) 1 ALL ER 8 (1975) 2 ALL ER 347, (1976) AC 182
in ‘Sexual offences and how we deal with them, the facts of this case are set out as
follows:
Morgan a senior non- commissioned officer in the Royal Air Force (RAF) invited 3
junior officers of RAF to his home in order to have sexual intercourse with his wife. At
first the young men were not willing to have sex but Morgan persuaded them to take
the invitation seriously. According to the 3 men, Morgan told them to expect resistance
from his wife but they were not to take her resistance seriously as it would be a mere
pretence on her part so that she can stimulate her sexual excitement.
Mrs Morgan was awakened from her sleep and carried from the room in which she
was sleeping to another room that contained a double bed. She struggled and
screamed, and shouted to her son to call the police, but one of the men put his hand
over her mouth. Once on the double bed the appellants had sex with her in turn,
finishing with her husband. During intercourse with the other 3 she was being held,
and this coupled with fear of further violence, restricted the scope of her struggles, but
she repeatedly called out to her husband to tell the men to stop.
The appellants made statements to the police, and those of Mcdonald, McLarthy and
Parker in differing degrees corroborated the general picture of forcible rape against
clear protests and resistance on the part of the victim.
Morgan was found guilty of aiding and abetting the 3 men in having sex with his wife.
The 3 men were also found guilty of aiding and abetting each other in the acts of rape.
The 3 were convicted of rape. The trial judge discussed the concept of force in the
context of the offence of rape; the mens rea of the perpetrators and the meaning of
consent. What did he say in respect of these aspects?
The above case demonstrates that a person other than the actual perpetrator of a
sexual offence can be criminally liable for the commission of the offence as envisaged
by Section 21 of the Penal Code.
Absence of Consent
Students are requested to read Regina v Olugjoba (1982) 1 QB 320 at pages 23- 29
of Joseph Daka- Sexual offences and how we handle them and answer the questions
below. The Morgan case above should also be considered. Reference to case and
statutory law in answering these questions is encouraged
1.
2.
3.
4.
What is consent?
What constitutes consent?
How can consent be ascertained?
Does submission to having sex amount to consent?
False Representations
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Consent is negated when the victim agrees to have sex due to false representations
made to her by the perpetrator of the offence to.
Read:
1.
2.


Reg v Flatttery (1876) 13 Cox 388
The King v Williams (1923) 1 K B 340
What are the facts of these cases?
Outline the Court’s reasoning at arriving at the respective decisions
Impersonating the Victim’s Husband
The law recognises the possibility that a woman might be deceived by a man that he
is in fact her husband thereby obtaining her consent to engage in sexual relations.
This is illustrated in the case of R v Young (1878) 12 Cox 311. In this case the accused
person entered into the matrimonial bedroom of the victim where she was sleeping
with her husband. He proceeded to have sex with the victim who eventually awoke to
the realisation that the person she had slept with was an intruder and not her husband
who was still sleeping soundly on their bed. In the instance she pushed the accused
off her body and called out to her husband. The accused fled and was apprehended
by a police officer who happened to be on duty in that area at that time. The Accused
was convicted of rape. The court held that: the victim did not consent to having sex
with the convict. If a man has or attempts to have sexual intercourse with a woman
while she is asleep, it is no defence that she did consent as she did not resist.
Defences
1. The absence of resistance- this defence seeks to negate the absence of
consent on the part of the purported victim. In R v Mayers 12 Cox C.C. 311
cited in R v Yohani Mporokoso (High Court of Northern Rhodesia, 1939, the
headnote of which reads, ‘If a man has or attempts to have connection with a
woman while she is asleep, it is no defence that she did not resist, as she is not
capable of resisting. The man can therefore be found guilty of a rape or an
attempt to commit rape
2. The promise to pay for sex- equally this defence seeks to negate the purported
absence of consent. In this scenario there is consent to the act. There is no
misrepresentation as to the nature of the act. Linekar (1994) – L agreed with a
prostitute that he would pay her 25 pounds sterling to have sex with him. The
prostitute agreed to have sex on condition that she received the said amount of
money. The court concluded that this was not a case of rape because the
prostitute had agreed to have sex with L and that if she did it for money, that
was not relevant
3. The perpetrator is legally married to the victim- this position is under attack with
a number of civil society organisations calling for the introduction of the offence
of marital rape.
4. Consent to the sexual act- this has already been discussed above
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The list of defences above is not exhaustive but includes some that are often pleaded
by persons accused of committing this offence. Others defences would include
insanity, intoxication alibi etc.
Conclusion
1. Rape is a crime that is defined by statute
2. The primary ingredients of rape are: unlawful sexual relations obtained without
the consent of the victim.
3. Rape will still exist where the consent is obtained by threats, intimidation fear
of bodily harm, false representations and impersonation of the victim’s husband
4. There are a wide range of defences that an accused person may plead to
escape or reduce criminal liability
5. The law recognises the harm that gender based criminal offences such as rape
inflict on its victims and has provided some means to protect them from further
injury- Look at the Anti -Gender based Violence Act
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Unit 3 continued
OFFENCES AGAINST MORALITY
SEXUAL OFFENCES- DEFILEMENT
Read:
1. The Penal Code CAP 87 of the Laws of Zambia - Chapter 15
2. Joseph Daka. 2005. Sexual Offences and how we Deal with them. Mission
Press: Ndola – Chapter 4
3. C R Snyman. 2016. Criminal Law. Paarlmedia: Durban- Chapter 10
4. The cases cited in the unit
Introduction
Defilement is a sexual offence against children. In recent times, there has been an
increase in the number of cases being reported and prosecuted. Efforts have been
made to sensitise the public on the need and duty they have to protect children from
this vice. The creation of stiffer punishments and the huge discretion resting in the
hands of the courts in imposing sentences is intended to deter would be offenders.
Definition of defilement
Defilement is defined under Section 138 of the Penal Code in the following words:
‘Any person who unlawfully and carnally knows any child commits a felony and is
liable, upon conviction to a term of imprisonment of not less than fifteen years and may
be liable to imprisonment for life.’
Elements of the offence of defilement
1. Unlawful carnal knowledge
2. Victim is a child
Unlawful carnal knowledge
The definition of carnal knowledge was provided for during our lecture on the offence
of rape to which students are referred. Suffice to say that the offence of defilement
occurs when a person unlawfully has sex with a minor. However, unlike the offence of
rape where the victim is exclusively female, the offence of defilement can be
committed against both male and female children. Consequently the definition of
carnal knowledge cannot be restricted to penetration of the female organ by the male
sexual organ, as this would inevitably exclude male children from the protection
envisaged by this provision. A broader understanding of the definition must thereby be
adopted.
It is also worth noting that where the prosecution is unable to prove penetration in the
sexual organ of a female victim of defilement then it is highly likely that the accused
person will be convicted of the offence of indecent assault contrary to Section 139 of
the Penal Code Cap 87 of the laws of Zambia. On the other hand he could be found
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guilty of attempted defilement under section 138 (3) of the Penal Code and will be
liable to imprisonment of between 14 and 20 years which is the same punishment
applicable to the offence of indecent assault.
An example of a case in which the accused was initially charged with defilement and
subsequently convicted of indecent assault is Darius Sinyinza v The People SCZ
Judgement No. 2 of 2009- ZLR of 2009. What factors did the court take into account
in arriving at its decision to convict for indecent assault rather than defilement?
Sex with a minor will only be lawful where it can be proved that the accused person is
legally married to the minor. This will only be true if the duo married each other under
customary law. Consequently the court in Rex v Chinjamba Criminal Review Case No
28 of 1949 did not convict the accused person as an accessory after the fact in what
was believed to be a defilement case after it was established that the alleged
perpetrator of the offence was legally married to the purported victim.
In this case, a villager, Fulai Njamba married a girl under the age of 16, and lived with
her as man and wife. The accused was the village headman and was fully aware of
the facts but did not take any steps to prevent and or report the matter to the police.
He was charged with the offence of being an accessory after the fact to the unlawful
carnal knowledge that the girl was exposed to. He was convicted. On review of the
decision made, the court held that:
‘it is not unlawful for a man to have carnal knowledge of a girl to whom he is lawfully
married, despite the fact that the girl is below the age of 16.
Thus it can be noted that whenever the defence of marriage to a minor is raised to a
charge of defilement, the court must ascertain whether or not the minor is legally
married to the accused person. Elopement and consent to marriage by the minor
respectively singularly or jointly is insufficient to prove marriage. Under most Zambian
customs, the permission and consent of the girl’s parents is primary in validating any
purported marriage. In addition to this the duo might be required to undergo various
rites/ ceremonies and varied payments at different stages in the creation of the
marriage bond will have to be adhered to. The onus is on the accused to prove that
he is legally married to the alleged victim of the offence.
Read:
Sibande v The People (1975) ZLR 101 (SC)
How does the court ascertain the fact that a child has had sex with another
person?
The fact that a child has had sex with another person is ascertained by:
1. The child’s own statement
2. The statement of eye witnesses that may have found the child being defiled
3. By the production of a medical report
As regards the latter source of evidence, the court noted the following in the case of
Darius Sinyinza v The People (SCZ Judgement No. 2 of 2009), ‘Coming to ground
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one, we have looked at the medical report is categorical in the issue of defilement. In
the absence of evidence to show that there was inflammation around the vagina and
that the hymen was tampered with, a charge of defilement cannot be sustained …’
The medical report confirms that the child has had carnal knowledge and as such it
key in establishing this element of the offence. In this case, the medical report did not
confirm that the victim had sexual intercourse and consequently the courts quashed
the charge of defilement and replaced it with one for indecent assault for which the
accused was convicted.
The status of the victim
The victim in this offence must be a child.
Section 131 A of the Penal Code defines a child as any person below the age of 16.
The term ‘child’ implies the fact that the victim can be male or female.
The age of the victim is an essential ingredient to this offence and must be proved by
the parents to the victim of the offence
In Gift Mulonda v The People (2004) ZLR 135 (SC) held that:
‘The age of the victim in defilement cases is crucial and a very essential ingredient of
the charge.’
Also in Bruno Chipundu v The People (2011) Vol. 1 HNA/3/2011, Justice Siavwapa
made the following remarks:
‘In defilement cases, it is not acceptable simply for the prosecutrix to state her age.
The age should be proved by one of the parents or by other best evidence that is
available.’
Sanction for defilement
Defilement is a felony and as such the law imposes very stringent sanctions in a bid
to express its displeasure towards that conduct and to deter would be offenders from
engaging in such deplorable conduct.
The offence of defilement carries a minimum sentence of 15 years imprisonment and
a maximum sentence of life. On the other hand Section 139 (4) of the Penal Code
prescribes community service, counselling or both for juvenile offenders between 12
and 16 years of age.
Take note of the following sentiments expressed by the courts when it comes to
sentencing offenders for defilement:
In Sikaonga v The People (2009) ZLR 192 the Supreme Court held that:
‘The law as enacted is that the minimum sentence for defilement is 15 years and the
maximum is life sentence. The range in sentence means that the legislature has given
the courts the freedom to impose different sentences according to the facts of each
case. An ordinary case of defilement will attract the minimum sentence of 15 years
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imprisonment. However, where an accused is found to have infected the victim with a
sexually transmitted disease, STD, the sentence will certainly attract a more severe
sentence above the minimum of 15 years.
Also, in Sikalonga v The People (1977) ZLR 61 it was held that:
‘It is perfectly proper to refer to the prevalence of an offence and to use that prevalence
as a basis for imposing a deterrent sentence.’
Read:
1. The People v Chikane Phiri High Court HJS/05/2011- ZLR 2011 Vol 1sentencing in defilement cases
Challenges to prosecution and defence of these cases
1. Forensic evidence- we do not have forensic laboratories to examine various
types of forensic evidence. For instance where the victim of defilement is female
and there is semen still present in her system, a simple test would help to
ascertain whether or not it is the accused and not another person that has
committed the offence particularly where the accused is denying responsibility.
Consequently a lot rides on the testimony of the purported victim of the offence.
2. Reporting time- many times this occurs long after the incident. This means that
vital evidence required to establish the guilt of the accused may be lost or
destroyed. Further where the victim is a child, they may not be in a position to
ascertain the date when the offence was committed. This means that the
accused may not be able to successfully raise the defence of alibi especially
where the child may have wrongly identified him as the perpetrator of the
offence. In order to successfully raise the defence of alibi the person raising it
must be able to state his whereabouts precisely, at the time when the offence
is believed to have occurred and the persons he was with at that time. this is
difficult where a person is arrested several months later and the charge simply
states that the offence occurred on a date unknown but between significant
periods of time. Positively because reporting criminal matters is not limited to a
particular time frame victims of criminal offences can obtain the justice they
deserve long after the crime is committed.
3. The offence of defilement like other sexual offences is private in nature and as
such often times the only persons present are the victim and the perpetrator of
the offence. It has been acknowledged in several court decisions that the
danger of false implication exists due to this factor. Consequently there is need
for adequate investigations to be carried out to ensure that the accused is not
falsely implicated. The law has however, to some extent addressed this
problem by amendment No. 3 of 2011 to the Juveniles Act by replacing Section
122 which reads as follows:
‘Where in any criminal or civil proceedings against any person a child below the age
of fourteen is called as a witness, the court shall receive the evidence on oath, of the
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child, if in the opinion of the Court, the child is possessed of sufficient intelligence to
justify the reception of the child’s evidence on oath, and understands the duty of
speaking the truth. Provided that:
‘(b) Where the evidence was admitted by virtue of this section is given on behalf of the
prosecution, the accused shall not be liable to be convicted of the offence unless the
evidence is corroborated by some other material evidence thereof implicating the
accused.’
Defences Available to accused Persons
The law recognises that there are a number of defences available to an accused
person that is charged with the offence of defilement. 4 defences are discussed below.
Other defences include: intoxication and insanity.
A. Section 138 of the Penal Code provides the following defence for defilement:
‘Provided that it shall be a defence for a person charged with an offence under this
section to show that the person had reasonable cause to believe that the child against
whom the offence was committed was of or above the age of 16.
Read:
1. The King v Banks (1916) 2 KB 621 (Page 62 ‘ Sexual offences and how we
handle them’)
The trial court has a duty to explain the defence highlighted above to he accused
person preferably before he takes plea. If this is not done and there is evidence that
the accused was prejudiced by the failure to explain the proviso to the accused he
may be acquitted.
Read:
1. R V Jovan Phiri (1954) 5 N R L R 324
2. Nsofu v The People (1973) ZLR 287
Question:
With the aid of decided cases discuss what constitutes a reasonable belief that a child
is 16 years old?
B. Marriage – This defence was discussed in the introductory remarks of this
lecture.
C. Allibi- the defence of alibi is essentially raised when the accused person is not
necessarily disputing the fact that an offence has been committed but rather
that he is not the person responsible for the commission of the offence because
he was not present when the offence is purported to have taken place. Like the
defences discussed earlier a successful raising of this defence will result in an
acquittal. The defence of alibi is discussed in the case of Katebe v The people
(1975) ZLR 13 to which students are referred.
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D. Consent to having carnal knowledge- minors cannot legally consent to having
sexual relations with anyone. Consequently it is not a defence in regard to this
particular offence to say that the child consented to have sexual relations with
the accused person.
II Procuring Defilement of a Child
Section 141 of the Penal Code creates the offence of procuring defilement by threat
or fraud or administering drugs.
Discuss the elements of this crime as set out in Section 141 (a) - (c)
Read: Sichimba v The People (1975) ZLR 104 (HC)
The brief facts of this case were that the appellant was convicted of the offence of
attempted defilement by a subordinate court. The prosecutrix an 11 year old girl had
gone to fish at the canal in the company of a friend. Apparently they were near a cane
field when the accused is alleged to have put down his bicycle and chased the girl into
the field. The accused caught the girl and challenged her with having stolen the sugar
cane and threatened to take her to the police station if she did not have sexual
intercourse with him. She declined to have sexual intercourse with him and said she
preferred to be taken to the police. According to her the accused then took off her
knickers. The appellate court set aside the conviction for attempted defilement and
substituted in its place Section 141 (a) of the Penal Code.
It was submitted by Legal Aid Counsel that the word ‘procure’ in section 141 of the
Penal Code suggested the action of an accused person under the section must be
directed to procuring the girl to have sexual intercourse with another person.
Held:
1. The word procure in S.141 (a) of the Penal Code CAP 146 is not confined to
acting as a pimp or pander to induce a woman or girl to have connection with
another but includes an attempt to obtain, cause or bring about a connection
with the offender himself.
Question:
Do you agree with the decision in this case? Give your reasons (in order to adequately
answer this question the entire case must be read)
III INDECENT ASSAULT
Section 137 of the Penal Code provides for the offence of indecent assault. The
offence is couched in the following statement:
‘Any person who unlawfully and indecently assaults any woman or girl is guilty of a
felony. . .’
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There is a sister provision that protects boys from this vice in Section 159 of the Penal
Code.
The elements of this offence are:
1. An assault that is unlawful and indecent
Question:
With the aid of decided cases discuss the nature and extent of these elements. What
constitutes an assault in this context? What do unlawful and indecent mean in this
context?
Is the sentence prescribed by law justified? Discuss
Read:
Mwanza v The People (1976) ZLR 154 (HC)
As regards the offence set out in Section 139 of the Penal Code, the courts will not
entertain a defence on the charge of indecent assault if it pertains to a girl child below
the age of 12 that she consented to the act of indecency carried out on her. However,
it is a defence for an accused to prove that he had reasonable grounds to believe that
the girl was above the age of 12 when he assaulted her in an indecent manner.
Question 1:
Ulesi is a girl aged 15 and is renowned for her wild behaviour. She enjoys going for
movies, drinking and has recently started smoking weed. When she is sober, Ulesi is
a timid, down to earth and humble young lady. On 10 th December 1998, she went to
the Mukuba Night club to have some drinks. She is close friends with the door
bouncers and as such is able to get into the club without any difficulties. The club is
illumined by differently coloured lights. Ulesi meets Mr Mystery man who buys her
drinks and party’s with her from 18 to 21 hours. Both have consumed a considerable
amount of alcohol. They then proceed to Mr Mystery’s home at his invitation where
Ulesi spends the night. Ulesi wakes up in the morning and notices that her
undergarments are damp. She vaguely remembers agreeing to have sexual relations
with Mr Mystery man but does not precisely recall the details. She rushes to the
nearest police station fearing that her parents would be mad with her for spending the
night away from home and tells them she has been defiled. Mr Mystery man never
bothered to ask Ulesi her age but assumed she was of age since she was in an adult’s
club. He denies having slept with Ulesi but claims if he did he was under the influence
of alcohol. He claims he cannot remember anything. There was evidence of semen on
her undergarments after the forensic department examined them. A medical report is
yet to be issued to establish whether or not she had sexual relations that evening.
Ulesi’s parents were worried about her and had spent the whole night looking for her
and only located her at the police station when the police called them on her behalf.
Mr Mystery Man is terrified. Advise him on the following:
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(1) The possible range of offences he could be charged with under chapter 15 of
the Penal Code
(2) Which offences is he likely to be prosecuted for?
(3) The defences available to him- are they viable?
Question 2:
Can an accused person successfully raise the defence of alibi when he claims that he
was not responsible for the commission of the offence he is charged with where there
are no persons to verify his claims because he lives on his own? Discuss with the aid
of decided cases
Question 3:
Reconcile the decision in the Chinjamba case with the provisions of the Penal Code
Section 139, the Education Act and Marriage Act pertaining to the rights of children
below the age of 16 to have sexual relations. Is the maintenance of the Chinjamba
case justified?
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UNIT 3- LECTURE 3-
OFFENCES AGAINST MORALITY
INCEST
Read:
1. The Penal Code CAP 87 of the Laws of Zambia- Sections 159-164
2. Chapter 6- Joseph Daka. 2005. Sexual Offences and how we handle them.
Mission Press: Ndola
3. Snyman C R. Criminal Law. Paarlmedia: Durban – chapter 11
Section 159 of the Penal Code creates the offence of incest. This offence prohibits
persons that are related by blood from having sexual relations with each other.
The prosecution has the onus to prove that the accused person:
1. Engaged in sex
2. His act of sex involved his or her blood relation- certain specific categories of
blood relations have been identified in the Act. These include grandparents,
parents, siblings, children and grandchildren. Siblings for purposes of
interpreting this provision include half-brothers and sisters. Recently uncle,
nephew, aunt and niece have been included to this list. The challenge though
is that no definition of who an aunt/ uncle/ nephew or niece is or to whom it is
restricted.
3. The offender must be aware of the nature of his relationship with the victim in
order for this offence to be committed. This knowledge constitutes the mens
rea of the offence
An example of a case that discusses this offence is highlighted in Daka’s book on
Sexual Offences and how we handle them at page 95- 97. This is R v Carmicheal
(1940) 27 Cr App R 183 to which students are referred.
The offence if proved, carries a minimum mandatory sentence of 20 years
imprisonment and a maximum of life imprisonment. It is also worth noting that it is
immaterial whether or not the victim of the offence consented to the commission of
the offence.
Section 161 of the Penal Code recognises that it is possible for a person to consent
to having sex with a person closely related to them as envisaged by Section 159
of the Penal Code. Consequently, where this is the case, the law imposes the
equivalent sanction on the person who consents to engaging in this incestuous
union. Section 161 differs from Section 159 in that the party charged allowed the
other party to have sexual relations with them. This implies willingness on his or
her part to engage in this activity. The offender in this section does not initiate the
process.
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The law is aware that children may consent to this kind of activity on account of
their inability to make appropriate and mature decisions on their own behalf. In view
of this any children who are guilty of consenting to having carnal knowledge of a
person that is closely related to them as defined by section 159 of the Act are liable
to community service or counselling. The court is obliged to make its decision with
the best interest of the child in mind.
Unnatural Offences
Section 155 of the Penal Code defines unnatural offences in this way:
Any person who –
1. Has carnal knowledge of any person against the order of nature; or
2. Has carnal knowledge of an animal; or
3. Permits a male person to have carnal knowledge of him or her against the order
of nature; commits a felony and is liable, upon conviction, to imprisonment for
life
This provision prohibits:
1. Homosexual/ lesbian relations
2. Beastiality
3. Sex against the order of nature by persons in a heterosexual relationshipparticularly the penetration of the anus rather than the vagina by a male sexual
organ (sodomy)
When a child is the victim of these acts, the perpetrator is liable to a minimum prison
sentence of 25 years.
Q- Identify the elements of the offences discussed in this section?
Harmful Cultural Practices
These practices are defined and identified in Section 157 of the Penal Code. This
provision was enacted to protect children from harm that might be inflicted on them in
the name of culture and traditions. Among the prohibited practices listed are:
1. Sexual cleansing
2. Female genital mutilation
3. Initiation ceremony that results in injury, transmission of an infectious/life
threatening disease or loss of life to a child
Q. Discuss the practical challenges that arise in prosecuting people on this charge in
view of the principle of legality related to criminal liability
Question 1:
B married G in 1950. He had 2 children with her though he doubted he was the
father of the 2nd child T because he believed that his wife was having an affair with
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another man at the time the 2nd child was conceived. The couple continued in
marriage for another 10 years after which their marriage was dissolved due to
irreconcilable differences between them. B proceeded to marry P but his marriage
only lasted 15 years. Later he met T all grown up and they decided to get married.
They had 3 children. B was apprehended and arrested for the offence of incest. In
his defence he argued:
1. He believed T was not his daughter because he had well founded suspicions
that his wife at the time was having an affair with another man
2. Whenever he argued with his 1st wife she claimed that T was not his daughter
3. The only reason he claimed T was his daughter was because he wanted to
avoid a scandal. Consequently whilst married to G he raised her as his daughter
Discuss the viability of his defence against a charge of incest as set out in Section 159
of the Penal Code.
Would T escape criminal liability in the scenario above?
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UNIT 4- OFFENCES AGAINST PROPERTY
Read:
1. Alex Steel. 2009. The meaning of Dishonesty in Theft. Common Law Review
(internet source)
2. Chapter 10. Richard Card, Cross and Jones. 2014. Criminal Law 21 st edition.
OUP: Oxford
3. Chapter 18- Hatchard and Ndulo. 1983. Casebook on Criminal Law.
Government Printers: Lusaka
Introduction
The right to own property is one of the rights enshrined in the Zambian Constitution.
This right encompasses a number of aspects including the right to use the property,
to destroy it, give it away as a gift or even to sell it. Consequently the law provides
various avenues to ensure that people’s rights to property are protected. One of the
ways it does this, is, by creating criminal offences that provide for the punishment of
people that interfere with the property rights of others. Chapters 26-29 of the Penal
Code CAP 87 of the Laws of Zambia give a catalogue of these offences. These include
theft, robbery, extortion and burglary.
The law, in these provisions seeks to emphasise the fact that a person does not have
the right to deprive another person of their property without their consent and or
authorisation. Consequently, most of these offences will be committed when the
accused takes the property from another without the owner’s consent, knowledge or
by the use of force, threats and intimidation. Also, the accused’s use of the property
after it has been taken will not be consistent with the desires and purposes of the victim
of the offence.
THEFT
Definition
Section 265 (1) of the Penal Code defines theft as follows:
‘ A person who fraudulently and without claim of right takes anything capable of being
stolen or fraudulently converts to the use of any person other than the general or
special owner thereof anything capable of being stolen.’
The Theft Act’1968 s.1 in the UK defines theft in this way:
Á person is guilty of theft if he dishonestly appropriates property belonging to another
with the intention of permanently depriving the other of it. . .’
Though these provisions use different words and expressions both capture the
essence of this offence in much the same way.
The actus reus of theft is the appropriation of property belonging to another. Card
defines appropriation in the following way:
 Involves an assumption of the rights of the owner
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Card further indicates that the mens rea of the offence of theft is dishonesty coupled
with the intention of permanently depriving the other of the property appropriated. Both
these aspects find expression in the definition given of theft in the Penal Code CAP
87 of the Laws of Zambia as will be observed in our consideration of the elements of
the offence in the section below.
The ingredients of this offence as defined in Section 265 of the Penal Code are:
1. Taking anything capable of being stolen (actus reus)
Section 265 (5) emphasises the aspect of taking by stating that:
‘A person shall not be deemed to take a thing unless he moves the thing or causes it
to move.’
R v Harper
The accused intending to steal the earing of a woman managed to move it from the
ear of the woman but it got tangled in her hair. The court considered this to be a
complete taking of the earring and constituted the offence of theft. There was a
movement of the earring from its original place.
Section 264 is dedicated to defining things that are capable of being stolen. Subsection
1 does in a way capture the various items described in the proceeding subsections
when it provides that:
‘Every inanimate thing whatever which is the property of any person, and which is
movable, is capable of being stolen.’
However, in addition to inanimate items, things that are alive and belong to other
people are also capable of being stolen. These include wild, domesticated animals
and any products proceeding from such animals.
Question:
Compare Section 264 of the Penal Code with the definition of property in Section 4.
Which kinds of property are excluded from property that is capable of being stolen?
2. Ownership of Property
The Prosecution must prove that the property that has been taken by the accused
person does not belong to the accused person. It must be shown that it belongs to
another or is in the lawful possession or control of another other than the accused
person
In Woodman (1974) QB 754
D took some scrap metal from a disused factory belonging to V. Originally there had
been a substantial amount of scrap metal on the site. This had been sold to a company
which removed the bulk of it but some was too inaccessible to be removed in such a
way as to be attractive to the company. After the company had removed a bulk of the
scrap, V erected a barbed wire fence and put notices such as ‘Private Property, Keep
out and Trespassers will be prosecuted’. Subsequently D entered the site and
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removed a quantity of scrap metal from it. Dismissing an appeal against conviction for
the theft of the scrap metal the Court of appeal held that there was ample evidence
that V was in control of the site and therefore in control of articles which were on the
site in spite of the fact that V was not aware of the existence of the scrap.
Reference to special and general ownership in the definition of theft in the Penal code
involves at least 3 things:



The right to make physical use of a thing
The right to derive an income from it
The power to manage ii
Special owners include persons who have a lien or charge over the property. (Section
265 (6) of the Penal Code)
3. Fraudulent taking/ Conversion of property (Mens rea)
Fraudulent taking or conversion of property is said to occur when it can be proved that
the accused person had the following intentions:
 To permanently deprive the owner of the thing taken
 To use the thing taken as a pledge or security. The Longman Dictionary of Law
describes a pledge in the following way: 1. A surety 2. Transfer of a Chattel (or
documents of title thereto) by the pledger to the pledgee, as security for the
payment of a debt of a debt incurred by the transferor, or performance of some
engagement
 To part with the property on a condition as to its return which the thief may not
be able to fulfil
 To use the property in such a way that the property cannot be returned in the
condition it was in at the time of the theft or conversion of the property
 Where the property taken is money, the thief intends to use it as he wishes
even though he may intend to repay the amount of money taken to its owner.
A classic example of this kind of scenario is when an employee who has access
to his employer’s money takes some of that money without the employers
consent to use to resolve his or her own personal problems.
R v Holloway
The Accused was employed by the complainant to dress or skin leather and was paid
for the work done. He was to be paid more money if he dressed more skins. However
on a particular occasion he took skins which were already cleaned and presented them
as though he had cleaned them that particular day. He was charged with theft but the
charge could not stand because the accused did not intend to permanently deprive
the owner of his skins. The only offence that could stand in this respect was an attempt
to obtain money by false pretences
It is clear from points raised above that the person accused of taking the property did
so without the consent of the owner of the property. This aspect almost always is a
key ingredient in establishing this offence.
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‘Conversion’ does not mean that the subject property is transformed into something
else but rather that the accused has appropriated it i.e. taking the property as though
it was his or her own.
‘Fraud’ in this context is synonymous with dishonesty.
Lastly Section 265 (4) of the Penal Code indicates that a person who converts an item
he has found (i.e. lost) because he did not know its owner and reasonably believes
that the owner cannot be discovered he is not guilty of fraudulently taking or converting
the item believed to have been stolen.
Read:
Soko v R (Federal Supreme Court 1961) at page 339- 342 of Hatchard and Ndulo
(1983)
In interpreting the provision above, the Federal Supreme court noted the following
authority regarding the perceived duties that a person who has taken or converted lost
property he found:
R v Shea’ 7 Cox C.C 147, Lord Lefroy CJ said ‘The dicta that there is a duty cast upon
persons finding property to search for the owner and if they do not they are guilty of
larceny are overruled and properly so
Also R v Aufi (1958) R & N 360 ‘There is no obligation in law upon a person who finds
things to take them to the police station, though there is no doubt that it is the safest
thing to do.
Even though there is no duty to look for the owner or take the lost property to the
police, an effort to do so will support an accused’s claim that he believed that the owner
of the property could not be discovered.
4. Bona Fide Claim of Right
In order to prove that a person is guilty of theft, the prosecution must prove that the
accused had no claim of right to the property. However, the accused may escape
conviction if he can show that he honestly believed that he had a lawful claim of right
to the property in question.
MUZYAMBA v THE PEOPLE (1975) Z.R. 83 (S.C.)
The appellant was convicted by a subordinate court of stock theft.
According to the appellant the bull had strayed and was found among his own cattle
and stayed with his cattle. He said that it had damaged his maize and that he made
inquiries in the village as to the owner.
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The main ground of appeal was that the appellant had a bona fide claim of right to be
entitled to deal with the bull, in other words to retain it until his claims for compensation
had been met.
Held:
(i)
The defence of a bona fide claim of right made in good faith is not confined to
those cases where an accused person believes that the property in question was his
or had become his: it is applicable also in those cases when the accused has a bona
fide belief that he has the right to keep or to deal with somebody else's property.
(ii)
It is not necessary for the claim to be valid nor indeed is it necessary for it even
to be reasonable; all that is required is that the belief in the validity of the claim be
honestly held. But, of course, if the alleged claim is unreasonable this may well be a
factor to be taken into account by the court in deciding whether it was honestly held.
(iii)
An accused person should be sentenced on the basis of the law as it stands at
the date of sentence.
Judgment
BARON, AG,J.: delivered the judgment of the court.
The appellant was convicted of stock theft, the subject of the offence being a young
bull of approximately three years of age.
It is convenient on the facts of this particular case to deal first with the evidence of the
appellant himself. He said that the bull strayed and was found among his own cattle
and stayed with his cattle. He said that it had damaged his maize and that he made
inquiries in the village as to the owner. The main ground of appeal in this case is that
the appellant had a bona fide claim of right to be entitled to deal with the bull, in other
words, to retain it until his claims for compensation had been met.
There is no question as to the law concerning bona fide claim of right; in the case cited
to us by Mr Kapumpa on behalf of the appellant, namely Mwachilama v The People
[1], after considering the authorities this court said this at page 58:
'' The defence of a bona fide claim of right made in good faith is not confined to
those cases where an accused person believes that the property in question was his
or had become his, it is applicable also in those cases when the accused has a bona
fide belief that he has the right to keep or to deal with somebody else's property." and
later:
"It is not necessary for the claim to be valid nor indeed, as the authorities make
clear, is it necessary for it even to be reasonable; all that is required is that the belief
in the validity of the claim be honestly held. But, of course, if the alleged claim is
unreason able this may well be a factor to be taken into account by the court in
deciding whether it was honestly held." If therefore the appellant in this case had
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honestly believed that he had a right to deal with this bull and the trial court had been
satisfied that, evidence fit to be left to a jury of the existence of a claim of right having
been adduced the prosecution had failed to negative that evidence, then he would
have had a good defence. However, the evidence as a whole in our view quite clearly
negatives any suggestion of a bona fide belief on the part of the appellant that he had
a right to deal with this bull. In the first place, as Mr Kapumpa very properly conceded,
he made no suggestion in cross-examination of the prosecution witnesses that he was
retaining this bull until his claims had been paid; instead, he insisted that the bull was
his and even went to the extent of producing one of his own cows and alleging that
she was the mother of the bull. The magistrate believed this evidence given by the
prosecution witnesses and he was fully entitled to believe it. This evidence, as we
have said, negatives the defence of bona fide claim of right and the appeal against
conviction must therefore be dismissed.
Read:
1. The People v Dickson Sailas (1973) ZLR
2. Joseph Chishimba v The People (1972) (HC)
General Punishment for theft
A person convicted of theft faces a maximum sentence of 5 years imprisonment unless
the law makes special provision owing to the circumstances in which a particular case
and or the nature of the subject matter stolen.
Other kinds of theft in the Penal Code include:



Stock theft- maximum of 15 years
Theft by servant- maximum of 7 years
Theft of testamentary instruments- maximum of 10 years
UNIT EXERCISE
1. Tekanya is a young man aged 21. He resides in Navutika Township. On 15 th
August 2001 around 05 hours in the morning, he was walking along the main
street in his township enroute to visit his sick aunt in madalitso village when he
stumbled across an abandoned bicycle. He had never seen a bicycle like it in
his village and concluded it might belong to someone visiting the area. He
made inquiries at the homes within the vicinity of the village. None of the
villagers claimed it as his own. He then proceeded to surrender the bicycle to
the headman who kept it for 2 weeks. The headman gave it back to him having
failed to locate its rightful owner. Tekanya kept the bicycle and later decided to
sell it to somebody else. He used the money generated from the sale to buy
feed for his chickens. The owner Mr Nsoni came to the area in search of his
bicycle which he left along the road after a drinking spree. He is informed it is
with Tekanya. Tekanya narrates to Mr Nsoni what transpired and motivated the
sale of the bicycle. Mr Nsoni demands the return of the bicycle. Tekanya is
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unable to return it. Mr Nsoni reports the matter to the police who charge him
with theft. Advise Tekanya
2. What charges if any might the person who purchased the bicycle from Tekanya
face if:
(i)
He was aware of the fact that the bicycle had been picked off the street by
Tekanya?
(ii)
He was ignorant of the facts surrounding Tekanya’s possession and sale of
the bicycle?
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UNIT 4 CONTINUED- OFFENCES AGAINST PROPERTY
Read:
1.
Chapter 11- Hatchard and Ndulo. 1983. A Case book on Criminal Law.
Government Printers: Lusaka
2.
Chapters 10-11- Card, Cross and Jones. 2014. Criminal Law 21st edition. OUP:
Oxford
3.
Chapter 18- C R Snyman. 2016. Criminal Law 6th ed.
ROBBERY
Definition
The offence of robbery is defined in Section 292 of the Penal Code in the following
way:
‘Any person who steals anything and at or immediately before or immediately after the
time of stealing it, uses or threatens to use actual violence to any person or property
to obtain or retain the thing stolen or to prevent or overcome resistance to its being
stolen or retained is guilty of the felony of robbery and is liable on conviction to
imprisonment for 14 years.’
Ingredients of the Offence
This offence has been described by some as ‘theft by violence’, the violence being the
key element that distinguishes it from ordinary theft. The ingredients of Robbery are
as follows:
1.
Theft of property- the elements of theft discussed earlier apply to this offence
2.
Use of violence or a threat(s) of violence
3.
Causal link between the threats and or violence and the taking of the property
4.
Unlawfulness
5.
Intention
AGGRAVATED ROBBERY
Definition
The offence of aggravated robbery is committed in 2 distinct circumstances;
1.
Under Section 294 (1) of the Penal Code, when ‘any person who being armed
with any offensive weapon or instrument, or being together with one person or more
steals anything and at or immediately after the time of stealing it, uses or threatens to
use actual violence to any person or property to obtain or retain the thing stolen or to
prevent and overcome resistance to its being stolen or retained is guilty of the felony
of aggravated robbery and is liable on conviction to imprisonment for life. . .
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2.
Aggravated robbery in which the offensive weapon used is a firearm as defined
in the Firearms Act CAP 110 (Section 294 (2) and (3) of the Penal Code)
The Ingredients of the offence of robbery and aggravated robbery
These are listed in our discussion on robbery above. Below is case law discussing the
elements of these offences:
Violence used to obtain or retain the thing stolen
Mugala v The People (1975) ZLR 282- It was held that – to prove a charge of
aggravated robbery in terms of Section 294(1) of the Penal Code it is necessary for
the prosecution to show that the violence was used to obtain the thing stolen
Consequently, where the accused uses violence on the property stolen without
inducing any fear in the person have custody of that property at the time of the theft,
he does not commit the offence of robbery.
In Mwape v The People (1976) ZLR 160 it was held that:
‘Violence to property alone without inducing fear in the mind of the person having
charge of or connected in any way with such property it cannot amount to robbery. If
a person in charge of or responsible for the property concerned is put in fear by an
attacker that injury would be caused to such property and he concedes to demands
made to him by the attacker, that would be robbery and if there is more than one
attacker or if the attacker is armed with an offensive weapon or instrument or is in the
company of one or more persons the offence becomes aggravated robbery.’
Further, aggravated robbery is also committed when the assailant makes threats
thereby inducing fear in the persons from whom he wishes to steal property. It does
not matter if the assailant lacks the capacity to commit the offence
In Jordan N koloma v The People (1978) ZLR 278 (SC) it was held that:
‘Where violence is not actually used but is merely threatened the essence of the
offence of aggravated robbery is the threat; putting a person in fear by threats, even
though the threatener is not in a position to carry them out is squarely within the words
used by the legislature in s294(1) of the Penal Code.’
The number of Assailants and nature of the weapons used
Aggravated robbery is committed when:
1.
More than one person is involved in stealing property from another person or
2.
Where the attacker(s) uses an offensive weapon to commit the offence. An
offensive weapon is defined under Section 4 of the Penal Code as follows:
‘Any article made or adapted for use for causing or threatening injury to the person, or
intended by the person in question for such use, and includes any knife, spear, arrow,
stone axe, axe handle, stick or similar article’.
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Use of a firearm – s.294 (2)
Section 294 (2) creates the offence of aggravated robbery carried out with a firearm.
This kind of aggravated robbery is distinguished from ‘ordinary aggravated robbery
under Section 294 (1)’, in that the instrument used to commit the offence is limited
solely and exclusively to a firearm as defined by the Firearms Act CAP 110
John, Timothy and Feston Mwamba v The People (1977) ZLR 394 (SC) it was held
as follows:
(i)
To establish an offence under Section 294 (2) (a) of the Penal Code the
prosecution must show that the weapon that was used was a firearm within the
meaning of the Firearms Act CAP 111 i.e. that it was a lethal barrelled weapon from
which a shot could be discharged or which could be adapted for the discharge of a
shot
(ii)
The question is not whether any particular gun, which is found and is alleged to
be connected with the robbery, is capable of being fired, but whether the gun seen by
the eye witnesses was so capable.
Once the court has established the fact that the instrument used to induce fear or
cause physical harm to the owners of the property by the assailant during the robbery
was a firearm within the meaning provided by the Firearms Act, it must address its
mind to the question whether all the assailants that is in the case where there is more
than one, should be convicted for ‘armed’ aggravated robbery
The matters to be considered are set out in Section 294 (2) (a) (i) (ii) and discussed in
the case below
In Nelson Banda v The People (1978) ZLR 300 (SC) it was held that:
(i)
In terms of Section 294 (2) of the Penal Code where an aggravated robbery is
committed by a number of persons one of whom is proved to have carried a firearm
that one must be sentenced to death, and the others must also be sentenced to death
unless they can bring themselves within sub para. (i) and (ii) of paragraph (a) of the
sub section
(ii)
The onus is on the appellant to satisfy the court as to matters set out in s.294
(2) Lastly, a person will be convicted of aggravated robbery even though he made use
of an imitation firearm to commit the offence.
In the Jordan Nkoloma case cited above, the court held that:
‘Furthermore by providing in s.49 (5) of the firearms Act CAP 111 that a firearm or
imitation firearm shall be deemed to be an offensive weapon or instrument within the
meaning of inter alia s294 of the Penal Code the legislature clearly intended that to
threaten another with an imitation firearm should come within the definition of
aggravated robbery.’
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Doctrine of Recent Possession
A person will be convicted of a criminal offence when the courts are satisfied that the
prosecution has proved that the accused satisfied the requirements for the
commission of that offence (i.e. the actus reus and mens rea). Notwithstanding this
position, a person could be convicted of theft related offences if he is found in
possession of the goods stolen within a short space of time after the commission of
the offence. This is referred to as recent possession. A person found in possession of
the goods believed to have been stolen in these circumstances will be convicted
unless he can give the court a reasonable explanation regarding the possession of
those goods.
The doctrine of recent possession is useful in ascertaining the guilt of a person
particularly where the victims of a crime are unable to positively identify the persons
that stole from them.
GEORGE NSWANA v THE PEOPLE (1988 - 1989) Z.R. 174 (S.C.)
The appellant was found in possession of a car two days after it was stolen. The
correct car number was etched on its windows and appeared on the licence disc but
the vehicle carried a false number plate. When the applicant was apprehended he
produced a blue book which bore a false name of the purported owner. At his trial he
said he was in possession of the car as a driver of his employer who had asked him
to drive it. In an earlier explanation to the police he said he had borrowed the car from
the person he said in evidence was his employer. The trial magistrate found that as a
prudent driver the applicant must have noticed the suspicious features surrounding
the car and, that coupled with recent possession and that the applicant's explanation
was not true, convicted him.
In the Supreme Court he argued that the telling of lies does not necessarily indicate
guilt and the magistrate's finding that the applicant did not obtain possession from
another person should be rejected.
Held:
(i)
The inference of guilt based on recent possession, particularly where no
explanation is offered which might reasonably be true, rests on the absence of any
reasonable likelihood that the goods might have changed hands in the meantime and
the consequent high degree of probability that the person in recent possession himself
obtained them and committed the offence. Where suspicious features surround the
case that indicate that the applicant cannot reasonably claim to have been in innocent
possession, the question remains whether the applicant, not being in innocent
possession, was the thief or a guilty receiver or retainer.
(ii)
The distinction is that a receiver receives with guilty knowledge at the time of
receipt while the offence of retaining involves guilty knowledge of theft but acquired
after the receipt of the property.
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Burglary, and House breaking
These 2 offences are similar in that the elements that constitute them are the same.
The only difference between them is the time at which they are committed. House
breaking is an offence that is committed during the day, whilst burglary is committed
in the night (Read Section 301 of the Penal Code).
The prosecution is bound by law to prove the following elements in regard to these
offences:
1.
Breaking and entering into a dwelling house. The phrase ‘breaking and
entering’ is defined in section 300 (1) of the PC. ‘Dwelling house ‘is defined in Section
4 of the PC to which you are referred. In order to establish whether or not a person
has entered into the premises, the prosecution must prove that a part of the accused’s
body or a part of an instrument used by the accused entered into the building that is
the subject of the offence.
2.
An intention to commit a felony
Both burglary and house breaking are felonies. A person that commits the offence of
burglary is liable to imprisonment for 10 years. House breaking carries a maximum
sentence of 7 years.
Question: why are the sanctions of house breaking and burglary different when they
basically have the same ingredients?
Unit Questions
X, Y and Z are members of a gang called the excavators’. They make a living through
illegal mining activities within Kwakaya village. ‘P Q and R are members of a rival gang
called Madoti that also makes a living from illegal mining activities within the same
village. On 12th March at around 19:00 hours X, Y and Z along with 10 other gang
members visited the Madoti gang at its settlement where they demanded the
immediate vacation of the Madoti gang on the premise that they had been mining in
that area for a significantly longer period of time. The leaders of the Madoti gang had
just received K100,000 from the sale of the emeralds they had mined in that area. P
had placed the money in a bag tied around his hips. Consequently, the leaders of
Madoti refused to leave claiming that they were residents of Kwakaya village with
equal rights to mine in that area. A fight ensued between the 2 gangs. Madoti
successfully fought the excavators who fled from the area. On 13th March P
discovered that the K100,000 he had in a bag around his waist was missing. He
suspects the excavators stole the money from him. He reported the matter to the
police. The police have charged X, Y and Z with the offence of aggravated robbery.
Advise them
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UNIT 5- OFFENCES AGAINST PUBLIC ORDER AND THE ADMINISTRATION OF
JUSTICE
Read:
1.
The Penal Code CAP 87 of the Laws of Zambia- relevant Chapters
2.
Chapter 10- Hatchard and Ndulo. 1983. A Case book on Criminal Law.
Government Printers: Lusaka
3.
Chapter 13- Scheb and Scheb. 2011. Criminal Law and Procedure
Introduction
Chapters VII, IX, X and XI of the Penal Code encompass offences that are committed
against public order and the administration of justice.
Offences against Public Order
Introduction
Scheb and Scheb note at page 324 that the government has the primary responsibility
to protect public order and safety. One of the ways it does this is by criminalising
conduct that would undermine public order and safety.
English common law developed 3 misdemeanours to maintain public order. These
were unlawful assembly, rout and riot. In the US system these offences have been
codified and categorised as breaches of the peace, inciting a riot and rout. On the
other hand other offences that have a bearing on public order such as Treason,
espionage, sabotage and sedition have been classified as offences against national
security in the US legal system. In the Zambian context a number of these offences
and others fall under Chapter 7 of the Penal Code and are classified as offences
against public order.
Offences against public order in the Zambian Penal Code include: treason, sedition,
secession, unlawful assembly, riots, mutiny, affray and defamation of the President.
In considering crimes against public order it will be observed that the underlying
concerns raised are:
1.
The need to protect, recognise and uphold the legitimacy of a government
established by law
2.
The duty of allegiance citizens owe to their country
3.
The need to protect and uphold the laws and policies formulated by government
4.
The need to safeguard the boundaries of the State
5.
Promotion of peace and security within the boundaries of the country
6.
Protection of citizens from violence and inappropriate material that might
instigate acts of violence and dissension.
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Treason
Black’s Law dictionary defines treason as:
‘The offense of attempting to overthrow the government of the state to which one owes
allegiance either by making war against the state or by materially supporting its
enemies’ (referred to as high treason under English Common law).
The offence of treason is an offence that is common to most civilisations. At common
law there were 2 kinds of treason. These were referred to as high treason which is
defined above, and petty treason. High treason was a breach of allegiance owed by a
citizen to the state. This was expressed in various ways such as:
•
Killing high ranking officers of the state like the monarch and judges
•
Siding with enemies of the State
On the other hand petty treason was a crime committed when a person killed someone
of superior status to themselves. Common examples would be the murder of a master
or mistress by his or her servant; a wife murdering her husband. With the passage of
time, petty treason was replaced by murder leaving only one kind of treason- i.e. high
treason.
The Penal Code, CAP 87 of the laws of Zambia has formulated its own definition of
treason. Section 43 identifies 6 ways in which a person can commit treason. These
are:
•
By overthrowing the government by unlawful means. This begs the question,
can the government be overthrown by lawful means. The penal code does not define
the word overthrow. The Complete Christian Dictionary defines the word overthrow
as:
1. To bring about the downfall
2. To overturn
3. To remove from official power.
The only way that a government in Zambia can be legally removed from power is
through elections. Any other method not specifically provided for by law would be
unlawful.
•
By preparing or endeavouring to obtain by force an alteration of the laws and
policies of government. This provision inadvertently prohibits the use of force in
obtaining an alteration in the laws and policies of government. Section 42 (2) (a)
defines force in this way:
(i)
(ii)
by force used in such a manner as, whether by reason of the number of
persons involved or the means used or both to imperil or be likely to imperil
the safety of the State or to cause or to be likely to cause death or grievous
harm or serious damage to property or
by a show of force calculated to arouse reasonable apprehension that force
will be used in such a manner as is described in (i) above.
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Criminal Law Lecture notes
Question:
Does the law provide lawful ways in which a citizen can obtain the alteration of
laws and policies in Zambia?
•
Thirdly, by creating an independent State within any part of Zambia or through
secession of any part of Zambia from the Republic. This offence must be understood
in the context of the Zambian Constitution CAP 1 of the laws of Zambia which contain
the following notable statements and provisions:
(1)
The Preamble states: ‘we the people of Zambia resolve that Zambia shall
remain a unitary, multiparty and democratic state.’
(2)
Article 4 - The Republic consists of the territory defined in an Act of Parliament.
(3)
Article 4- the Republic is a unitary, indivisible . . . democratic State
(4)
Article 4 (4) The Republic shall not be ceded in whole or in part
Read: The judgement of Justice Sichinga in The People v Afumba Mombotwa and 3
others HCZ
•
Prepares or endeavours to carry out by force any enterprise which usurps the
executive power of the state in any matter of both a public and general nature. Q. What
constitutes executive power? (Answer the question with reference to relevant
provisions of the Constitution and case law). Give practical examples of this kind of
scenario
•
Incites or assists any person to invade Zambia with armed force or unlawfully
to submit any part of Zambia to attack by land, water or air, to assist in the preparation
of any invasion or attack
•
In time of war and with intent to give assistance to the enemy does any act
which is likely to give such assistance
Joyce v DPP (1946) AC 347; (1946) 1 ALL ER 18O
The acc used was charged with treason on the premise that he was believed to have
been ‘levying war against King George VI when he decided to travel to Germany during
the 2nd World War to assume employment which involved broadcasting pro-Nazi
propaganda to British radio audiences. He was captured by the British government at
the end of the war and charged with treason. Joyce was the son of an Irish Father and
a British mother. He was born in the United States. When he became a teenager, he
obtained a British passport which was still valid when he left for Germany during the
war. He was convicted and appealed against the decision of the court on the ground
that he had lied about his place of birth when he applied for a passport and did not
owe allegiance to any country at the beginning of the war. The appeal was dismissed
and he was executed
This case demonstrates the basic principle that a citizen owes allegiance to the
country in which he holds his citizenship. Siding with an enemy country is an act of
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treason. Joyce citizenship could easily be proved by the fact that he held a valid British
passport.
Other Cases on treason:
1.
R v Lynch (1903) 1 KB 444
2.
R v Dejagar (1907) AC
Punishment for Treason
Section 43 of the PC indicates that a person found guilty of the offence of treason is
liable to suffer death. This means that death is the maximum sentence that can be
imposed if a person commits treason in any of the ways described in Section 43 of the
PC. Consequently, Section 43 (b) and (d) which are replicated in Section 45 of the PC
are specifically classified as Treason Felony which carries a maximum jail term of 20
years.
Misprision of Treason
Citizens are duty bound to report any person(s) they know to have an intention to
commit the offence of treason to the relevant authorities. These authorities are listed
in Section 44 of the Penal Code and include the President, Ministers and the police. A
failure to do so is a criminal offence and carries a maximum sentence of life
imprisonment. This offence is referred to as misprision of treason. It can also occur
when a person becomes an accessory after the fact to treason. The definition of an
accessory after the fact is provided in Section 397 of the Penal Code to which you are
referred
Question:
It has been argued by some people that treason is an outdated criminal offence that
must be expunged from the law because it undermines the exercise and enjoyment of
fundamental freedoms such as Freedom of association, Freedom of Expression and
Freedom of conscience. Is this true? Discuss with the aid of decided cases and other
legal authorities
Sedition
Read:
1.
R v Chona (High Court of Northern Rhodesia, 1962) - pages 306-310 of the
Case book on Criminal Law, Hatchard and Ndulo
2.
DPP V Ngandu and Others (1975) ZLR 253
Definition of Sedition
The word ‘sedition’ is defined in Black’s law Dictionary as follows:
An agreement, communication or other preliminary activity aimed at inciting treason
or some lesser commotion against public authority. 2. Advocacy aimed at inciting or
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producing- and likely to incite or produce- imminent lawless action. At common law,
sedition included defaming a member of the royal family or the government. The
difference between sedition and treason is that the former is committed by preliminary
steps while the latter entails some overt act for carrying out the plan. But if the plan is
merely for some small commotion, even accomplishing the plan does not amount to
treason.
Unfortunately, the word sedition is not defined in the Penal Code. However, Section
57 of the Penal Code lists 5 offences that are classified as seditious practices. It also
lists 10 ways in which a seditious intention can be expressed in Section 60 of the Act
Seditious Practices
Seditious practices include:
1.
An attempt to do or making any preparation to do or conspiring to do an act with
a seditious intention
2.
Uttering seditious words
3.
Printing, publishing, selling, distributing or reproducing any seditious publication
4.
Importing any seditious publication, unless he has no reason to believe that it
is seditious
5.
Being in possession of seditious material
The punishment for these offences includes the forfeiture of the seditious material to
the State
Seditious intention
Section 57 (1) (a) of the Penal Code refers to ‘seditious intention’. List 10 ways in
which seditious intention can be ascertained. (Refer to Section 60 of the Penal Code
CAP 87 of the Laws of Zambia
Defamation of the President
Section 69 of the Penal Code creates the offence of defamation of the President. This
offence is intended to protect the reputation of the President. In order to secure a
conviction, it must be proved that the statement made by the accused was defamatory
or insulting. Further, that it was the Accused’s intention to bring the President into
hatred, ridicule or contempt through the statement that was made. It has been argued
by many that this offence is unconstitutional because it is in conflict with fundamental
freedoms such as the freedom of expression. The courts have addressed this matter
in the case cited below.
In The People v Bright Mwape and Fred Membe (1995) ZMHC 2/HPR/36/94 Justice
Chitengi, the Appellants who were journalists of a weekly newspaper were charged
with criminal defamation against the President arising from an article referring to him
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in a derogatory term. The Appellants did not plead to the charge but raised a
preliminary issue as to the constitutionality of Section 69 of the Penal Code
Held
1. Section 69 of the Penal Code does not deprive any citizen of the right to legitimately
criticise the President or the government
2. Section 69 of the Penal Code is not in conflict with Articles 20 or 23 of the
Constitution
Question:
Do you agree with the decision in this case? Should defamation of the President be a
criminal and or civil offence?
It is worth noting that the State can also prosecute any person who defames an
ordinary citizen under the provisions set out in Chapter 18 of the Penal Code. However
such prosecution is restricted to defamatory statements that are put into writing,
printed, expressed in paintings or other means. Slander is therefore excluded from
these provisions.
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UNIT 5- OFFENCES AGAINST THE ADMINISTRATION OF JUSTICE
Introduction
The judiciary is responsible for the administration of justice in Zambia. It carries out
this function through various courts constituted under the law. Chapter 9 of the Penal
Code gives a catalogue of offences that undermine the ability of the judiciary to
administer justice to the general populace. The Penal Code creates the following
offences:
1.
Perjury- Section 104 of the PC
2.
False statements by interpreters- Section 105 of the PC
3.
Fabricating evidence- section 108 of the PC
4.
Destroying evidence- Section 111 of the PC
5.
Conspiracy to defeat justice and interference with witnesses – Section 112 of
the PC among other offences
These offences indirectly emphasise the importance of the truth in the administration
of justice. The duty to tell the truth is not restricted to witnesses testifying in a matter
before court but extends to court officials carrying out their duties in the administration
of justice.
These offences also underline the necessity to protect evidence and witnesses which
play a key role in the just determination of disputes brought before the courts of law
Perjury
Scheb and Scheb (2011:362) made the following observations regarding the offence
of perjury at Common law:
‘Like bribery, the crime of perjury has its roots in biblical times. The Mosaic Code
included an admonition against the bearing of false witness. At common law, perjury
came to consist of wilfully giving under oath in a judicial proceeding false testimony
material to the issue. It was eventually supplemented by the common law offence of
false swearing, a crime committed when an oath was taken in other than a judicial
proceeding.’
The common law position is retained to a large extent in the Penal Code which defines
perjury in Section 104 in the following words:
‘ Any person who, in any judicial proceeding, or for the purpose of instituting any
judicial proceeding, knowingly gives false testimony touching any matter which is
material to any question then pending in that proceeding or intended to be raised in
that proceeding is guilty of the misdemeanour termed ‘perjury’.
The ingredients of this offence are:
1.
A false statement made by the accused in a judicial proceeding or for purposes
of instituting judicial proceedings. Thus a false statement made by a witness in a court
hearing or at a police station will presumably fall in this category
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2.
The statement must be material to the matters being determined by the court
in a particular case
3.
Accused knows his or her testimony regarding the material matter is false
4.
The accused promised to tell the truth
Contempt of Court
Section 116 of the PC criminalises the offence of contempt of court.
Questions:
1. What is contempt of court?
2. Briefly outline the different circumstances that would qualify as contempt of
court. What do they have in common?
3. Are there any exceptions to the rules set out in Section 116 of the Penal Code
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UNIT 6- WHITE COLLAR CRIMES
Read:
1.
2.
3.
4.
5.
Anti-Money Laundering Act
Anti- Corruption Act
Penal Code
ACFE. The Fraud Trial. USA- internet source
CIPFA. Fraud Definition and Examples
Introduction
The phrase white collar crime has been defined in the Black’s law dictionary as:
‘A non-violent crime usually involving cheating or dishonesty in commercial matter.
Examples include fraud, embezzlement, bribery and insider trading.’
In this unit we will consider 3 types of white collar crimes that are increasingly
becoming a nuisance in our country. These are corruption, money laundering and
fraud.
CORRUPTION
The word corruption is defined in Black’s law dictionary as follows:
‘The act of doing something with the intent to give some advantage inconsistent with
official duty and the rights of others; a fiduciary’s or official’s use of a station or office
to procure some benefit either personally or for someone else contrary to the rights of
others’.
The Anti-Corruption Act provides a broad definition of corruption when it says:
‘soliciting, accepting, obtaining, giving, promising or offering of a gratification by way
of a bribe or other personal temptation or inducement or the misuse or abuse of a
public office for the advantage or benefit of oneself or another person and corruption
shall be construed accordingly.’
The Anti-Corruption Act No 3 of 2012 creates various offence that amount to corrupt
practices. These are listed in Part 3 of the Act. These include the following:





Abuse of authority of office
Corrupt practices by or with public officers
Corruption of witness
Gratification for giving assistance
Gratification for procuring withdrawal of tender
Bribery
One common form of corruption is bribery. Bribery can be defined as the offering,
giving receiving or soliciting of anything of value to influence an act or decision.
Types of bribery
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Bribery can be committed in relation to a public officer. This is the traditional position.
However over time the concept has been extended to private entities which involves
corruption of a private entity for commercial or business gain.
Question
Do we have laws to cater for both public and private bribery?
Defences
1. Entrapment- in this defence the defendant claims that the State induced him
into committing the offence. A defence usually raised in relation to offences of
bribery
List other defences you know
MONEY LAUNDERING
George M Kanja defines money laundering as: ‘the concealment of the origins of
illegally obtained money, typically by means of transfers involving foreign banks or
legitimate businesses.
Read: The Anti-Money laundering act
1. Identify the offences provided for in the Act
2. What institutions regulate this area of law?
3. What roles do these institutions play in managing this branch of the law?
FRAUD
Fraud is generally defined in the law as an intentional misrepresentation of material
existing fact made by one person to another with knowledge of its falsity and for
purposes of inducing the other person to act and upon which the other person relies
with resulting injury or damage. (https://definitions.uslegal.com.>fraud)
Fraud is a broad term that is expressed through various offences such as deception,
bribery, forgery, extortion, corruption, theft, conspiracy, embezzlement, false
representation, concealment of material facts and collusion. (The Chartered Institute
of Public Finance and Accounting- Fraud definition and Examples)
It is important to note that fraud is both a civil and criminal offence in a number of
jurisdictions. Consequently fraud in criminal law is distinguishable from civil fraud
primarily in the fact that the statute that criminalises it lists the various elements it will
contain. Also, the successful prosecution of criminal fraud will attract the imposition of
penal sanctions – usually a term of imprisonment
Forgery
Forgery is defined in Section 342 of the Penal Code as:
‘Making of a false document with intent to defraud.’
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In order to fully appreciate the elements of this offence, references must be made to
sections 343-345 which shed light on the following matters:




The definition of a document
The meaning of – making a false document
The definition of the phrase intent to deceive’’
The definition of intent to defraud
Davis Jokie Kasote v The People (1977) ZLR 75 (SC)
1.)
The definition in section 344 (a) of the Penal Code being that a person makes
a false document who "makes a document purporting to be what in fact it is not", these
last six words require that "purport" must be applied to the document itself and not to
its contents; if one implies that a document is what it is not it is the nature of the
document concerning which there is a representation, not the truth of the contents.
(2)
A document is not a forgery merely because it contains misstatements of fact;
no misstatements of fact, however extensive or material, can distort the nature of a
document so as to make it purport to be what in fact it is not.
Macfadyean v The People [3] disapproved.
(3)
Falsity as to date where the date is material was one of the ways recognised
by the common law by which a document lied about itself.
(4)
The finding that the appellant had forged his signature was not necessary to a
finding that the document was a false document within section 344 (a) of the Penal
Code, since it certainly was not made by the man by whom it purported to have been
made.
(5)
Whether or not the appellant personally forged or was a party to the forgery of
the cover note, the only inference that could reasonably be drawn from the findings of
fact properly made by the trial court was that the appellant knew that the cover note
he uttered on the 14th January was forged. The appellant ever having been called
upon to meet an allegation that he had forged or been privy to the forgery of the cover
note prior to the 9th July, in the peculiar circumstances of this case it would be
unsatisfactory to allow the conviction on the count of forgery to stand.
Penal Code, sections 4, 344 (a), 347, 352.
Forgery Act, 1861 (England), section 38.
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