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Criminal Law - LPU 2940 - notes

Law (University of Zambia)

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THE UNIVERSITY OF ZAMBIA

INSTITUTE OF DISTANCE EDUCTION

BACHELOR OF LAWS

MODULE

LPU: 2940 - CRIMINAL LAW

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TABLE OF CONTENT
TABLE OF CASES................................................................................................................ 12

AIM ......................................................................................................................................... 16

OBJECTIVES ........................................................................................................................ 16

UNIT 1: INTRODUCTION TO CRIMINAL LAW ........................................................... 18

1.1 Introduction ........................................................................................................................ 18

1.2 Objectives .......................................................................................................................... 18

1.3 Definition of a Crime ......................................................................................................... 18

1.4 The Nature and Function of Criminal Law ........................................................................ 19

1.4.1 Social Control ............................................................................................................. 21

1.5 Sources of Criminal Law ................................................................................................... 22

1.5.1 The Constitution.......................................................................................................... 22

1.5.2 Penal Code and other Acts of Parliament ................................................................... 22

1.5.3 Subordinate Legislation / Delegated Legislation ........................................................ 23

1.5.4 Common Law.............................................................................................................. 23

1.5.5 Judicial Precedence ..................................................................................................... 24

1.5.6 Authoritative Writings ................................................................................................ 24

1.5.7 Customary Law ........................................................................................................... 24

1.6 Courts of Criminal Jurisdiction.......................................................................................... 26

1.6.1 Supreme Court ............................................................................................................ 26

1.6.2 Court Appeal ............................................................................................................... 27

1.6. 3 High Court ................................................................................................................. 27

1.6.4 Subordinate Courts...................................................................................................... 28

1.7 Activity .............................................................................................................................. 30

UNIT 2: GENERAL PRINCIPALS OF CRIMINAL LIABILITY .................................. 31

2.1 Introduction ........................................................................................................................ 31

2.2 Objectives .......................................................................................................................... 31

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2.3 Actus Reus .......................................................................................................................... 31

2.4 Activity .............................................................................................................................. 34

2.5 Elements of Actus Reus ...................................................................................................... 34

2.5.1 Omission ..................................................................................................................... 35

2.5.2 Causation..................................................................................................................... 37

2.5.2.1 Factual and Legal Causation. ............................................................................... 38

2.6 Activity .............................................................................................................................. 39

2.7 Mens Rea ............................................................................................................................ 40

2.7.1 Intention ...................................................................................................................... 41

2.7.2 Recklessness ............................................................................................................... 41

2.7.3 Knowledge .................................................................................................................. 42

2.8 Activity .............................................................................................................................. 43

2.9 Coincidence of Actus Reus and Mens Rea ......................................................................... 43

2.10 Legal Burden and Standard of Proof ............................................................................... 44

2.11 Activity ............................................................................................................................ 46

UNIT 3: STRICT LIABILITY ............................................................................................. 47

3.1 Objectives .......................................................................................................................... 47

3.2 Regulatory offences ........................................................................................................... 48

3.3 Public danger Offences ...................................................................................................... 49

UNIT 4: MODES OF PARTICIPATION IN CRIME ....................................................... 50

4.1 Objectives .......................................................................................................................... 50

4.2 Introduction ........................................................................................................................ 50

4.3 Principal Offender .............................................................................................................. 50

4.4 Joint Offenders ................................................................................................................... 51

4.5 Accessory (Secondary Offenders) ..................................................................................... 53

4.5.1 Aiders .......................................................................................................................... 53

4.5.2 Abettors ....................................................................................................................... 53

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4.5.3 Counsellor ................................................................................................................... 54

4.5.4 Procurer ....................................................................................................................... 54

4.6 Additional Information ...................................................................................................... 54

UNIT 5: GENERAL DEFENCES ........................................................................................ 56

5.1 Objectives .......................................................................................................................... 56

5.2 Introduction ........................................................................................................................ 56

5.3 Insanity............................................................................................................................... 57

5.4 Infancy ............................................................................................................................... 61

5.5 Self-Defense ....................................................................................................................... 62

5.6 Consent .............................................................................................................................. 64

5.7 Mistake of Facts ................................................................................................................. 66

5.8 Ignorance of the Law ......................................................................................................... 67

5.9 Intoxication ........................................................................................................................ 68

5.10 Duress .............................................................................................................................. 70

5.11 Superior Orders ................................................................................................................ 71

5.12 Necessity .......................................................................................................................... 71

5.13 Claim of Right.................................................................................................................. 72

5.14 Provocation ...................................................................................................................... 73

5.15 Diminished Responsibility ............................................................................................... 76

5.16 Activity............................................................................................................................. 77

UNIT 6: PERLIMINARY OFFENCES ............................................................................... 78

6.1 Objectives .......................................................................................................................... 78

6.2 Introduction ........................................................................................................................ 78

6.3 Attempt .............................................................................................................................. 79

6.4 Conspiracy ......................................................................................................................... 80

6.5 Activity .............................................................................................................................. 81

UNIT 7: OFFENCES AGAINST THE PERSON ............................................................... 82

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7.1 Objectives .......................................................................................................................... 82

7.2 Introduction ........................................................................................................................ 82

7.3 Non-Fatal Offences Against the Person. ............................................................................ 82

7.3.1 Common Assault......................................................................................................... 82

7.3.2 Assault Occasioning Actual Bodily Harm .................................................................. 83

7.3.3 Grievous Harm ............................................................................................................ 84

7.3.4 Unlawfully wounding or Poisoning ............................................................................ 85

7.4 Homicide ............................................................................................................................ 85

7.4.1 Murder......................................................................................................................... 86

7.4.2 Manslaughter............................................................................................................... 88

7.5 Activity .............................................................................................................................. 89

UNIT 8: OFFENCES AGAINST MORALITY .................................................................. 90

8.1 Objectives .......................................................................................................................... 90

8.2 Introduction ........................................................................................................................ 90

8.3 Rape ................................................................................................................................... 90

8.4 Indecent Assault ................................................................................................................. 93

8.5 Defilement.......................................................................................................................... 94

8.6 Prostitution ......................................................................................................................... 95

8.7 Abortion ............................................................................................................................. 96

8.8 Unnatural Offences ............................................................................................................ 96

8.9 Activity .............................................................................................................................. 97

UNIT 9: OFFENCES RELATING TO MARRIAGE AND DOMESTIC OBLIGATION

.................................................................................................................................................. 98

9.1 Objectives .......................................................................................................................... 98

9.2 Introduction ........................................................................................................................ 98

9.3 Bigamy ............................................................................................................................... 98

9.4 Desertion of Children ......................................................................................................... 99

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9.5 Neglecting to Provide for Children .................................................................................... 99

9.6 Child Stealing................................................................................................................... 100

UNIT 10: OFFENCES AGAINST PROPERTY ............................................................... 101

10.1 Objectives ...................................................................................................................... 101

10.2 Introduction .................................................................................................................... 101

10.3 Theft ............................................................................................................................... 101

10.4 House Breaking and Burglary........................................................................................ 103

10.5 Robbery .......................................................................................................................... 105

10.6 Aggravated Robbery ...................................................................................................... 105

10.7 Activity .......................................................................................................................... 106

UNIT 11: RECEIVING STOLEN GOODS AND RELATED OFFENCES .................. 107

11.1 Objectives ...................................................................................................................... 107

11.2 Introduction .................................................................................................................... 107

11.3 Receiving and Retaining ................................................................................................ 107

UNIT 12 OFFENCES RELATING TO FALSE PRETENCES ...................................... 110

12.1 Objectives ...................................................................................................................... 110

12.2 Introduction .................................................................................................................... 110

12.3 False Pretences ............................................................................................................... 110

12.4 Obtaining Pecuniary Advantage by False Pretences ..................................................... 111

12.5 Obtaining Goods by False Pretence ............................................................................... 111

UNIT 13: MALICIOUS DAMAGE TO PROPERTY ...................................................... 113

13.1 Objectives ...................................................................................................................... 113

13.2 Introduction .................................................................................................................... 113

13.3 Arson .............................................................................................................................. 113

13.4 Willful and Unlawful Damage to Property .................................................................... 114

13.5 Activity .......................................................................................................................... 115

UNITY 14: OFFENCES AGAINST PUBLIC ORDER ................................................... 116

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14.1 Objectives ...................................................................................................................... 116

14.2 Introduction .................................................................................................................... 116

14.3 Treason ........................................................................................................................... 116

14.4 Misprision of Treason .................................................................................................... 117

14.5 Felony Treason............................................................................................................... 117

14.6 Promoting Tribal Wars .................................................................................................. 118

14.7 Inciting Mutiny, Soldiers or Police ................................................................................ 118

14.8 Aiding Soldier or Police in Acts of Mutiny ................................................................... 119

14.9 Sedition .......................................................................................................................... 119

14.10 Unlawful Assembly ..................................................................................................... 120

14.11 Riots ............................................................................................................................. 121

14.12 Disorderly Behavior in Public Place ............................................................................ 121

14.13 Activity ........................................................................................................................ 122

UNIT 15: OFFENCES AGAISNT ADMINISTRATION OF LAWFUL AUTHORITY

................................................................................................................................................ 123

15.1 Objectives ...................................................................................................................... 123

15.2 Introduction .................................................................................................................... 123

15.3 False Claims by Official ................................................................................................ 123

15.4 Abuse of authority of office ........................................................................................... 124

15.5 False certificates by public officers ............................................................................... 124

15.6 Personating public officers ............................................................................................ 124

15.7 Activity .......................................................................................................................... 125

UNIT 16: THEORIES OF PUNISHMENT ....................................................................... 126

16.1 Objectives ...................................................................................................................... 126

16.2 Introduction .................................................................................................................... 126

16.3 Necessity of Legal Punishment...................................................................................... 126

16.3.1 Retribution .............................................................................................................. 127

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16.3.2 Denunciation ........................................................................................................... 127

16.3.3 Incapacitation .......................................................................................................... 128

16.3.4 Deterrence ............................................................................................................... 128

16.3.5 Rehabilitation/ Reformation.................................................................................... 129

16.4 Activity .......................................................................................................................... 129

UNIT 17: PRINCIPLES OF SENTENCING .................................................................... 130

17.1 Objectives ...................................................................................................................... 130

17.2 Introduction .................................................................................................................... 130

17.3 Principles of Sentencing ................................................................................................ 130

17.4 Purposes of sentencing principles .................................................................................. 132

17.5 Types of punishment in Zambia .................................................................................... 132

17 Suspended Sentence .......................................................................................................... 134

17.7 Probation ........................................................................................................................ 135

17.8 Activity .......................................................................................................................... 135

BIBLIOGRAPHY .................................................................................................................. 136

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ACKNOWLEDGEMENTS

The University of Zambia (UNZA), Institute of Distance Education (IDE) wishes to thank
Mr Joseph Chirwa for writing this module, LPU: 2940 - CRIMINAL LAW.
.

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TABLE OF CASES

Attorney General’s Reference No. 2 of 1980 (1984) QB 456

Attorney General’s Reference No 6 of 1980 (1981) QB 715
A-G for Northern Ireland v Gallagher (1963) AC 349
Board of Trade v. Owen (1957) AC 602
Bilbie v Lumley (1802) 2 East 469
Burrell v Harmer (1967) Crim LR 169
Clarke (1972) 1 All ER 219
Dungey (1866) 4 F & F 1066, 176 ER 910
DPP v Beard (1920) AC 479
DPP v Morgan (1976) AC 182
DPP v. Pretty (2001) UKHL 61
DPP v. Smith (1961) AC 290
DPP v Stonehouse (1977) 2 All ER 909
Elias Kunda v The People (1980) Z.R. 100 (S.C.)
Elisha Malume Tembo v. The People 1980) ZR 209
Fagan v MPC (1969) 1 QBC 439
Hibbert v. McKiernan (1948) 2 KB 142
Hill v. Baxter (1952) 2 All ER 71
John Banda v. The People, (1998) HPA/6
John Timothy & Feston Mwamba v. The People (1977) ZR 394
Joyce v. D.P.P. (1946) AC 347R
Kabongo v. The People (1974) ZR 83
Kaluluka Musole v. The People (1963-1964) Z. and N.R.L.R. 173 (C.A.)
Kalyata v. The People (1972) SJZ 62
Katundu v The People (1967) Z.R. 181 (C.A.)
Keighley v Bell (1866) 4 F & F 763
Leicester v. Pearson (1958) 1 All ER 193
Lengwe v. The People (1976) ZR 127
McNaghten (1843) 10 C & F 200
Massissani v. The People (1977) ZR 234
Matiya Mwachilama v The People C.A.Z. Appeal No. 61 of 1972
Mbanga v. The People (1973) ZR 186
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Metropolitan Police Commissioner v. Caldwell (1981) 1 All ER 961

Milambo v The People (1977) 10 Zam. L.J. 95
Miller v Minister of Pensions (1947) 3 ALL E R 372
Mugala v. The People (1975) ZR 282 (SC)
Mumba v. The People (1971) ZR125
Mutambo & Others v The People (1963- 64) ZR 15
Mutambo & Five Others v. The People (Crt of Appeal of Zambia,1965)
Muzyamba v. The People (1975) Z. R. 83, S. Ct
Mvula v The People (1976) ZR 253
Mwachilama v. The People (1972) ZR 286
Mwape v. The People (1976) ZR 160
Mwanza v. The people (1979) ZR 154
Mwenya v. The People (1973) ZR 6
National Coal Board v. Gamble [1959] 1 Q B 11
Nsokolo v. The People (1940) NRLR 85
Ng’mbi v. The People (1975) ZR 97 Lengwe v. The People (1976) ZR 127
R v Abbott (1977) AC 755
R v. Ahluwalia (1993) 96 Cr. App. 133; (1992) 4 ALL E. R. 889
R v. Bailey (1983) 2 All ER 503, (1983)1 WLR 760
R v Bailey (1800) Russ & N 1
R v. Becerra (1975) 62 Cr. App. R 212
R v. Bell (1984) All ER 842
R v Byrne (1960) 3 ALL ER 567
R v. Calhaem (1985) QB 808
R v Cato (1976) 1 WLR 110
R v. Chibeka (1959) 1 R & N 476
R v. Chona (1962) R & N 344 HCNR
R v. Cunningham (1957) 2 All ER 412 (CA)
R v. Deller (1952) 36 Cr. App R 184.
R v Dudley and Stephens (1884) 14 Q B D 273
R v. Elbekkay (1995) Crim. LR 163
R v. Gomez (1993) 1 All ER 1, HL
R v. Hennessey (1989) 1 WLR 297

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R v. Instan (1893) 1 QB 450

R v. Kaitamaki (1985) AC 147
R v Kemp (1957) 1 QB 399 [1956] 3 ALL E R 249
R v. King (1966)
R v. Llyod (1967) 1 All ER 107
R v. Levy [1912] 1 KB 158
R v Malamula (1962) R & N 553
R v. Marriot (1971) 1 ALL E R 595; (1971) 1 WLR 187; 55 Cr App Rep 82
R v. Miller (1954) 2 QB 282
R v. Miller [1983] 2 AC 161
R v. Mohamedali (1961) High Court of Nyasaland
R v. Moloney (1985) AC 905
R v. Mubanga and Sakeni 1959) 11R & N169
R v Mudewa (1973) ZR 147
R v. Mulcahy (1868) LR 3 HL 306
R v Ndhlovu (1959) 5 NRL 298
R v. Obiero (1962) EACA 139
R v. Owino (1995) Crim LR 743
R v. Pagett (1983) 76 Cr. App. R. 279
R v. Pittwood (1902) 19 TLR 37
R v Quick (1973) 1 Q B 910
R v. Quick (1973) 3 All ER 347
R v. Sergeant (1974) 60 Cr App R 74
R v. Scott (1979) 40 La
R v. Siracusa (1989) 90 Cr App R 340
R v. Smith (1959) ALLER 193
R v. Steele (1993) Crim LR 298
R v Sullivan (1983) AC 156
R v. Swindall and Osborne (1846) 2 Car & K 230
R v. Thabo Meli (1954) 1 WLR 228
R v. Turner (No.2) (1971) 2 All ER 44.
R v. Tylor (1838) 8 C & P 616
R. v Vantandilo (1815) 4 M & S 13

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R v. Williams (1953) 37 Cr. App. R 71

R v. Wilson (1996) 3 WLR 125
R v Windle (1952) 2 QB 826
R v. White (1910) 2 KB 124
R v Yohani Mporokoso 2 N. R. L. R. 152
Patel's Bazaar Limited v. The People (1965) ZR 84 (CA)
Phiri v. The People (1970) SJZ 178
Poh and To (1982) Crim LR 132
Ross v HM Advocate (1991) SLT 564
Simutende v The People (1975) Z R 294
Siyauye v The People (1976) ZR 253
Smedleys Ltd v. Breed (1974) AC 839
Smith (1866) F & F 1066, 176 ER 910
State v. Silvers (1989) 323 N.C. 646, 655, 374 S.E.2d 858, 864
Sweet v. Parsley 1969) 1 ALL E R 347; (1969) 2 WLR 470
Television Chibuye v. The People (1978) ZR 43
The People v Katonga (1974) ZR 280
The People v. Kufekisa (1975) Z.R. 188 (H.C.)
The People v. Lawrence Mumanga (1985) ZR 35
The People v. Mwaba (1973) ZR 271 (HC)
The People v. Mwanza (1976) Z.R. 155
The People v Nkandu Luo HWS/32/2006
The People v. Nkoma (1978) ZR4
The People v. Njovu (1968) ZR 132
The People v. Shamwana [1982] ZLR 183
The People v Shindano (1972) ZR 155
The People v. Peter Kalyonbwe (1978) ZR 294
The People v. Tenson Chipeta (1970) SJZ 189
Wilcox v Jeffrey (1951) ALL E R 464; [1951] 1 T L R 706
Williams v. Philips (1957) 41 Cr App R 5
Wilson and Tutt (1981) 3 Cr App R (S) 102
Winfred Sakala v. The People (1987) ZR 23
Woolmington v DPP (1935) AC 462

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Yip Chiu- Cheung v. The Queen (1995) 1 AC 111 Privy Council

Zakalia v. The People SCZ Judgment No.23 of 1978
Zambia National Holdings & UNIP v A-G (1993) ZR 22

AIM

The aim of this course is to introduce students to the general principles of criminal law,
specific offences under statutes and available defences.

OBJECTIVES

By the end of this course, students are expected to be able to:

1. Explain the nature and function of criminal law.

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2. Analyse the general concepts and principles of criminal law.

3. Discuss the elements that constitute the different crimes
4. Distinguish the categories of offenses from one another, and their appropriate defences.
5. Discuss the application of criminal law in a gendered context

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UNIT ONE

INTRODUCTION TO CRIMINAL LAW

1.1 Introduction

This section endeavors to provide the student with a greater awareness and understanding of
criminal law by defining crime, the nature and function of criminal law, the sources of criminal
and the jurisdiction of criminal courts.

1.2 Objectives

By the end of this Unit, you should be able to:

i. Define crime;
ii. Explain the nature and function of the Criminal Law;
iii. Establish the various sources of the criminal law; and
iv. Explain the courts of criminal jurisdiction.

1.3 Definition of a Crime

Crime captures the attention of nearly everyone. Fascination with crime has not escaped the
general public. Cases such as the O J. Simpson trial and Oscar Pistorius, to a large extent,
reflect the widespread fascination with this topic. At the center of this fascination are a number
of intriguing questions, some of which include, but are not limited to: what is crime and what
are the different forms of it. As the heading may suggest, this part seeks to address the former
question as opposed to the latter. However, this question is surprisingly difficult to answer.
Crime is a multifaceted concept that has eluded a single definition. Basically, the concept
incorporates different types of conduct that vary not only from time to time but also from place
to place, therefore, criminal lawyers and criminologists have endeavored with much difficulty
to provide a precise definition that can be used to identify quality of an act or omission and
what makes an act or omission a crime.
Despite the obvious difficulties academics have come up with several propositions that provide
valuable insights into what amounts to a crime. In Board of Trade v. Owen1 the House of
Lords concluded that ‘a crime is an unlawful act or default which is an offence against the

1
Board of Trade v. Owen (1957) AC 60
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public & renders the person guilty of the act liable to legal punishment.’ On the basis of the
decision above it is established that a crime constitutes of the following:
1. It is an unlawful act or default;
2. It is an offence against the public, that is to say, it is an offence against society as a
whole;
3. A person commits it will be subject to prosecution and is charged as ‘guilty’ (if found
guilty); and
4. Convicted person suffers some sort of penalty imposed as a legal requirement.
A number of commentators have expressed reservations with the definition above on account
of its inability encompass modern attitudes to crime, for instance, compensation, methods of
diversion of young persons from punishment and restorative justice, that is, reconciliation.
According to Halsbury’s laws of England a crime is defined as ‘a wrong which affects the
security or well-being of the public generally so that the public has an interest in its
suppression’. Following the definitions above, a crime in the most basic sense is whatever the
law declares to be a criminal offense and punishes with a penalty or warns against the repetition
of such an offence.
The reader must observe that what amounts to a crime may change from time to time depending
on the societal beliefs and cultural differences of varying jurisdictions. For instance, in the UK
before the enactment of the Sexual Offences Act of 1967 sexual acts between two men were
strictly prohibited by criminal law. The said Act removed this prohibition; now, it’s not an
offence any more. Similarly, in Zambia, Vandalism was not a crime up until the Penal Code
was amended in 1997. However, certain offenses such as murder and theft have always been
recognized crimes.
The definitions of crime above are of limited usefulness as they only indicate which acts are
criminal by reference to the consequences which may ensue from their commission.2 As the
reader may have observed, they tell nothing of the function of criminal law and why certain
conduct is classified as criminal.

1.4 The Nature and Function of Criminal Law

The term criminal law, sometimes called penal law, refers to any of various bodies of rules
whose common characteristic is the potential for unique and often severe impositions as

2
Michael Allen, Textbook on Criminal law (New York, Oxford University Press: 2001), 2
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punishment for failure to comply.3 Essentially, criminal law represents a series of prohibitions
backed up with the threat of punishment.4
This area of the law encompasses a number of devices that are intended to achieve a number
of goals. Firstly, the criminal justice system is a tool of social control representing the
agglomeration of powers, procedures and sanctions which surround the criminal law. For
example, the police are empowered to investigate crime, search for evidence, arrest of
suspected offenders and questioning them. Likewise, the courts are empowered to try persons
charged with committing crimes and, if convicted, to sentence them. In setting the parameters
within which this coercive State apparatus operates, the criminal law plays a central role; a
person may only be arrested where he/she is suspected of committing a crime; the police may
only search for evidence which points towards the commission of a crime; courts may only ty
and sentence persons who are charged with, and then convicted of, committing crimes.5
It is crucial, therefore, to define clearly which acts and omissions amount to crimes and what
sanctions follow thereafter, the criminal justice system is dependent upon these definitions.
Accordingly, the criminal law limits and controls the legitimate exercise by the State of its
coercive powers to investigate crime and prosecute, convict and punish criminals.6
Secondly, the criminal law operates as a guide to the citizen indicating the limits of legitimate
activity on his/her part and predicting the consequences of infractions of criminal law. It has
been argued that if the state be effectively limited and the citizen is to be able confidently to
make rational choices regarding his/her behavior, the criminal law must be clear, relatively
stable and accessible, that is, knowable in advance. 7
While, indeed, the previous paragraphs have set out in broad terms some of the functions of
criminal law, however, in order to fully grasp the function of criminal law a further inquiry is
required.

3
www. wikipedia.com
4
Michael Allen, supra note 2 at p. 3
5
Michael Allen, supra note 2 at p. 3
6
Ibid, 3
7
Ibid, 3
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1.4.1 Social Control

The criminal law represents the rules of social control within a society. According to a report

by the Wolfenden Committee on Homosexual Offences and Prostitution, it was observed that

the function of criminal law is to:

“preserve public order and decency, to protect, the citizen from what- is offensive
or injurious and to provide sufficient safeguards against exploitation or
corruption of others, particularly those who are especially vulnerable because
they are young, weak in body or mind or inexperienced or in a state of special
physical, official or economic dependence. It is not ... the function of the law to
intervene in the private lives of citizens, or to seek to enforce any particular
pattern of behavior, further than is necessary to carry out the purposes we have
outlined.”8

To this extent the criminal law is a reflection of corporate or societal morality. The wrongdoing
which the criminal law seeks to punish is that which threatens the fundamental values upon
which a society is founded. While it is harmful to the individual to be robbed or assaulted, it is
also harmful to society as such behavior threatens the security and well-being of that society.
Therefore, criminal sanctions operate as a form of social control both punishing the offender
and reasserting the mores of that society.9

QUESTIONS FOR DISCUSSION

1. Could you think of conducts that are regarded as wrong doing in Zambia?
2. Could you think of a conduct that is not necessary regarded as an offence elsewhere
but would be an offence in Zambia?
3. Do you think Criminal law serves it function well?

8
The Wolfenden Committee, Report of the Committee on Homosexual Offences and Prostitution (1957) paras. 13 and 14
9
Michael Allen, supra note 2 at p. 3
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1.5 Sources of Criminal Law

The various sources from which criminal law draws it authority. These include:
1. The Constitution;
2. The Penal Code and other Acts of Parliament;
3. Subordinate Legislation;
4. Common Law;
5. Judicial Precedence;
6. Authoritative Writing; and
7. Customary law.

1.5.1 The Constitution

In Zambia, the constitution is the principal source of all law. Part I, Article 1 of the Constitution
sets out its supremacy, such that, any other law that is inconsistent with it is in effect null and
void to the extent of that inconsistency.10 As a source of criminal law, Article 18 of the
constitution sets out some of the fundamental principles upon which the Zambian criminal
justice system is founded. For instance, the aforementioned Article provides that every person
charged with a criminal offence should be afforded a fair hearing within a reasonable time and
that such person is to be presumed innocent until proven guilty by an independent and impartial
court.

1.5.2 Penal Code and other Acts of Parliament

While, indeed, the Constitution forms the basis of all laws in Zambia, it must be observed that
with regards criminal law the Penal Code, which was adopted for Northern Rhodesia in 1931,
forms the main source of law. The Penal Code is the principal crime regulating statute and
embodies the majority of offences. It contains comprehensive statutory provisions in respect
of crimes which were formerly dealt with by Common Law. It also gives guidance in relation
to the appropriate criminal charge one may be given where a criminal offence has been
committed in Zambia.
However, the reader is advised not to confine their study to the Penal Code as there are a
number of other enactments by Parliament that deal with specific offences. For example, Acts
such as the Anti- Corruption Act No. 3 of 2012, the Anti-Money Laundering Act No 14 of

10
See John Banda v. The People, 1998) HPA/6
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2001, The Anti-Human Trafficking Act No. 11 of 2008, the Road Traffic Act11 and the Wildlife
Act, to name a few.
The Criminal Procedural Code, Cap 88 of the laws of Zambia (CPC), though sparingly
discussed serves as another important source of criminal law. However, while the Penal Code
and the aforementioned Acts form part of the substantive law, the CPC is procedural by nature,
as the name may suggest. It sets out the rules to be followed in the enforcement of the Penal
Code and other penal statutes.

1.5.3 Subordinate Legislation / Delegated Legislation

Delegated legislation is law made by a body or person to whom Parliament has delegated its
power to legislate. 12 The concept of delegated legislation involves Parliament entrusting the
Executive, that is, Ministers and local authorities with the power to make legislation, without
requiring that they be passed by the Parliament.13 The term delegated legislation covers orders,
regulations, rules, sub-rules and by-laws which often prescribe penalties for their violation.
Individual who do not comply with these forms of delegated legislation may be subject to
prosecution. Thus, delegated legislation constitutes an important secondary source of criminal
law.

1.5.4 Common Law

Common law is the legal tradition which evolved in England from the 11th century onwards.
It is defined as that ‘part of the law of England formulated, developed and administered by the
common law courts, based originally on the common customs of the country and is unwritten.
The extent to which common law is applicable as a source of law in Zambia is spelt out in the
English law (Extent of Application) Act.14 Formerly, English common law was an important
source of criminal law, however, with amendments to section 2(1) of the Penal Code that
previously provided for the preservation of common law offences and having consideration of
Article 18(8) of the Constitution which provides that no person shall be convicted of a criminal
offence unless the offence is defined and the penalty therefore is prescribed in a written law,
common law offences have now become obsolete in Zambia.

12
Matthew Groves and H. P Lee, Australian administrative law (Cambridge, Cambridge University Press:
2007), 134
13
Ibid, 142
14
See Section 2 of the Act.
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1.5.5 Judicial Precedence

The doctrine of precedent is one of the characteristic features upon which the Zambian criminal
justice system is founded. Essentially, judgements or decisions of a court of law may be cited
as authority for the legal principle embodied therein provided they are based on similar facts.
Zambia being a common law jurisdiction recognizes that cases decided on similar material
facts must be treated the same. Thus, a lawyer may cite before the court a decision they made
or one made by a higher court as authority provided such a case bears the same material facts
as that of the case in casu.

1.5.6 Authoritative Writings

Authoritative writings form an important source of criminal law in Zambia. Examples include,
but not limited to:
1. Hatchard, J. and Ndulo M. Criminal Law and Criminology in Zambia (Lusaka,
Government Printers: 1994)
2. Hatchard, J. and Ndulo M. A Case Book on Criminal Law (Lusaka: Government
Printers: 1993)
3. Smith J. C., & Hogan, B., Criminal law (London, Butterworths :2002)
4. Kulusika, S.E., (2006) Text, Cases and Materials on criminal law in Zambia, Lusaka:
UNZA press
5. Kulusika, S.E Criminal Law in Zambia Cases and Materials (Lusaka, Multimedia
Publications: 2005)

1.5.7 Customary Law

Customary Law refers to customs that have been in existence since time immemorial and are
recognized as been law by the Zambian society. This law need not only be in existence for
many years but also be recognized and accepted as law by the people. For an act may have
been in existence for many years but if not accepted by society as law, may thus not be termed
as customary law.
Like delegated legislation, customary law is another secondary source of criminal in Zambia.
Now, as far as one can judge, Zambia functions as a dual legal system, meaning, that two
parallel and distinct legal system are practiced simultaneously. The two are statutory law and
customary law. It often happens that from time to time that the two systems are found to be in
conflict. Thus, in terms of section 16 of the Subordinate Courts Act, Cap 28 of the Laws of

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Zambia, customary law is applicable in so far as it is not repugnant to justice, equity or good
conscience or incompatible with any written law in force in Zambia.
Additionally, the Penal Code, being the primary sources of criminal law excludes either
expressly or impliedly the application of certain aspects of customary law in given
circumstances. The relation between customary law and the Penal Code has been considered
in a number of cases. In R v. Mubanga and Sakeni15, the accused were found guilty by a
Native Court of contempt of Bemba traditional law. The accused, who were Christians, had
declined to supply finger millet for the purpose of the worship of certain tribal spirits and had
persuaded a fellow Christians to do likewise. The High Court of Northern Rhodesia held that
“even if the customary law was established, it was inconsistent, with the penal code and
repugnant to justice. The findings of guilty against the accused were reversed.
Suffice to note, customary law does permit certain acts which would otherwise amount to an
offence under the Penal Code. For instance, the offence of bigamy (section 166 of the Penal
Code) and the related offence in the Marriage Act16 do not apply to marriages contracted solely
under customary law. Polygamy, to say the least, is a well-established institution under
customary law which is governed by varying customary practices. However, once a marriage
is contracted under the Marriage Act, the provisions of the Penal Code and Marriage Act apply.
This proposition was illustrated by the case of The People v Katonga.17 The facts of that case
been that Albina Florence Katonga the defendant therein was charged with bigamy for
marrying Dennis Siwale when her first marriage with Alfred Chibesa was not dissolved. The
question before court was whether ‘a customary union is not capable of being a valid marriage
whether the husband is alive or not’. The court answered this in the affirmative and the
defendant was acquitted.
Notwithstanding the decision in The People v Katonga there appears to be a contradiction
with the position taken in The People v. Nkoma.18 In the latter, the High Court convicted the
defendant on a similar set of facts. Despite the obvious contradictions, the case of R v.
Mubanga and Sakeni makes a compelling reading with regards the relationship between
customary law and the Penal Code. Nonetheless, to better appreciate the relationship between
the two it is also advisable that the student consults the case of R v Ndhlovu.19 In that case

15
R v. Mubanga and Sakeni (1959) 11R & N169
16
Marriage Act
17
The People v Katonga (1974) ZR 280
18
The People v. Nkoma (1978)
19
R v Ndhlovu (1959) 5 NRL 298
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Ndhlovu the accused was charged in the High Court of Northern Rhodesia with the minder of
his wife. It appeared that during an argument between the accused and the deceased, the latter
used a 'foul and abusive expression' which according to customary law amounted to a sufficient
insult to warrant the chastisement of the wife by the husband. However, the High Court refused
to consider this evidence and emphasized that the law on which criminal cases are to be decided
in the High Court is that to be found in the Penal Code and related statutes.

QUESTIONS FOR DISCUSSION

1. What is a dual legal system?
2. Explain the relationship between customary law and the criminal law?
3. Distinction the cases of The People v Katonga and The People v. Nkoma?
4. Explain why common law offences are no longer applicable in Zambia?

1.6 Courts of Criminal Jurisdiction

Under Part VIII of the Constitutional Amendment Act of 2016 is established the Judiciary as
an autonomous institution deriving its judicial authority from the people, to be exercised in a
just manner that promotes accountability. In terms of Article 119 the exercise of Judicial
authority vest in the courts and the same is to be exercised in accordance with the Constitution
and other laws. One of the principal functions of the courts is to hear criminal matters.20
The legal basis of Zambia’s present court system is Article 120 of the republican Constitution.
It provides as follows:
The Judiciary shall consist of the superior courts and the following courts:
(a) subordinate courts;
(b) small claims courts;
(c) local courts; and
(d) courts, as prescribed.

1.6.1 Supreme Court

The Supreme Court of Zambia, created by article 124 of the Constitution and the Supreme
Court Act21, has an establishment of eleven judges or a higher number of judges, as prescribed,

20
Constitution of Zambia (Amendment) [No. 2 of 2016] Article 119 (2) (a)
21
Supreme Court of Zambia Act Cap of the Laws of Zambia
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excluding the chief justice and the deputy chief justice. In terms of being a court of criminal
jurisdiction the Supreme Court has appellate jurisdiction to hear appeals from the Court of
Appeal and is the final court of appeal in Zambia. Given that the Supreme Court is the final
court of appeal lower courts are bound by its decision. Likewise, the Supreme Court is bound
by its own decisions except in the interest of justice and development of jurisprudence.

1.6.2 Court Appeal

The Court of Appeal is established Article 130 of the Constitution. The Jurisdiction of the
Court of Appeal is set out by Article 130(4) of the Constitution and section 4 of the Court of
Appeal Act, No. 7 of 2016. As a court of criminal jurisdiction the Court of Appeal hears
appeals from the High Court.

1.6. 3 High Court

The Constitution under Article 133 (1) and the High Court Act provide for the existence of a
High Court in Zambia. The High Court consists of the chief justice who sits ex officio and such
other number of judges as prescribed. In terms of criminal jurisdiction, the High Court
exercises unlimited and original jurisdiction criminal matters. The High Court Act, adds that,
within specified limits, the High Court may also exercise all the jurisdiction, powers and
authorities vested in the High Court of Justice in England.22 The criminal jurisdiction of the
High Court is stated in broad terms. The Criminal Procedure Code says, subject to other
provisions therein, (of which none appears to significantly limit the court's powers to hold
trials), the court may try any offence under the Penal Code and any other written law.23
In Zambia National Holdings & UNIP v A-G24 court gave meaning to the word “unlimited‟
i.e. no matter is beyond the competence of the High Court. But High Court is not exempt from
adjudicatory matters subject to the laws of Zambia. It is bound by the rules and laws that operate
in Zambia e.g. Criminal Procedure Code and the Penal Code. As alluded to earlier, the High
original jurisdiction in criminal cases. This means it can act as a trial court in cases such as
homicide. At the same time, the High Court has appellate jurisdiction. The basic appeal
provisions in the Subordinate Courts Act and the Criminal Procedure Act provides for appeal

22
High Court Act, Cap 27 of the Laws of Zambia. Section 9
23
Criminal Procedural Code, Cap 88 of the Laws of Zambia. Section 4
24
Zambia National Holdings & UNIP v A-G (1993) ZR 22
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to the High Court.25 For example, in cases involving assault, theft or offences of false pretenses,
it may act as an appellate court.
High Court, in general, exercises supervision, control and reviews decisions of the Subordinate
Courts. In The People v. Mwanza26 Care J. went on to observe that there are four ways in
which the decision of a Subordinate Court can be supervised by the High Court. These are as
follows:
1. Instances of appeal initiated at the option of one of the parties. This is a right given to
a convicted person by statute. (See section 321 of the Criminal Procedure Code). It
may also be by way of case stated (see section 341 of the Criminal Procedure Code).
2. the option of a Subordinate Court where it commits a person for sentence by the High
Court (see section 217 of the Criminal Procedure Code).
3. By way of review. In this respect, the High Court may call for, and examine the record
of any criminal proceedings before any Subordinate Court for the purpose of satisfying
itself as to the correctness, legality or propriety of any finding, sentence or order
recorded or passed by a Subordinate Court. (See section 337 of the Criminal Procedure
Code).
4. transmission of a sentence for confirmation by the High Court under section 9 of the
Criminal Procedure Code.

1.6.4 Subordinate Courts

The Subordinate Courts Act, CAP 28 of the Laws of Zambia provides for the constitution,
jurisdiction and procedure of Subordinate Courts, for appeals from Subordinate Courts to the
High Court; and for matters incidental to or connected with the foregoing. As it stands, the
Subordinate Courts hear the bulk of criminal cases in Zambia. The Subordinate Courts are
divided into three different classes. These are Class III, Class II and Class I. In terms of criminal
jurisdiction, the Subordinate Courts have all the power and jurisdiction to hear criminal matters
as conferred upon them by the Criminal Procedure Code, Subordinate Courts Act and any other
laws enforce at the time being.27
The criminal jurisdiction of the Subordinate Courts must be understood from two angles; the
offences which magistrates are empowered to try and the penalties he/she is empowered to

25
Subordinate Court Act, Cap 28 of the Laws of Zambia. Section 33; Criminal Procedure Code, Cap 88 of the
laws of Zambia. section 321.
26
The People v. Mwanza (1976) Z.R. 155
27
Subordinate Court Act, Cap 28 of the Laws of Zambia. Section 19.
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impose. Suffice to note, magistrates of the I, II and III class may try any offence under the
Penal Code and any other law subject to the following restrictions:
1. Murder;
2. Treason; and
3. Offences specified by the Chief Justice.
Where a criminal matter comes before a magistrate he/she is empowered to hold a preliminary
enquiry so as to ascertain whether the court has jurisdiction try the matter or not, unless the
matter before the magistrate is one certified as a summary procedure case under section 254 of
the Criminal Procedure Code. Additionally, aside from the aforementioned general limitations
various acts may limit the criminal jurisdiction of magistrates in accordance to their class and
in some cases even extend the normal power of a magistrate. Take for instance, the Mental
Disorder Act28 that limits jurisdiction to magistrates of the I and II class and the Juveniles Act29
that also imposed limitations on certain magistrates.
On the other hand, the maximum sentences that magistrates permitted to impose by law are;
- Principal Resident Magistrate nine years
- Senior Resident Magistrate nine years
- Resident Magistrate seven years
- Magistrate Class I five years
- Magistrate Class II three years
- Magistrate Class III three years
A magistrate cannot impose an individual sentence that exceeds the maximums prescribed
above. However, were an accused is charged with several offences a magistrate may impose
sentences on several counts whose maximum exceeds those prescribed above.
It must also be observed that the Subordinate Court have appellate jurisdiction in that they can
hear appeals from the Local Courts. However, a matter heard by the local Court is heard de
novo by the Subordinate Court on appeal.
Local Courts
Local courts are at the bottom of the court hierarchy in Zambia. Unlike the Courts mentioned
above the Local Courts preside over customary matters. The Local Courts Act, Cap 29 of the
Laws of Zambia provide for the recognition and establishment of local courts, previously

28
Cap 305 of the Laws of Zambia.
29
Cap 53 of the Laws of Zambia.
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known as native courts, it amends and consolidates the law relating to the jurisdiction of and
procedure to be adopted by local courts; and to provide for matters incidental thereto.30
As to criminal jurisdiction, local courts may try any offence under African customary law,
where such law is not repugnant to natural justice or morality, notwithstanding that a similar
offence may be constituted by the Penal Code or by any other written law. This is subject to
the condition that a local court cannot impose any punishment for such an offence in excess of
the maximum permitted by the Penal Code or by such other written law for such similar
offence.31
Notwithstanding the above stated, no local court has jurisdiction to try any case in which a
person in charged with an offence consequence of which is the occurrence of death or one
which is punishable by death.32 This significantly curbs the powers of the local courts, perhaps,
due to the recognition of the extensive problem of scarcity of legal training and experience that
continues to shape most aspects of the administration of justice in local courts. The informal
nature of the local courts and the fact that strict rules of procedure are not followed warrant the
wide restrictions imposed by law.

1.7 Activity
QUESTIONS FOR DISCUSSION
1. Briefly explain the criminal jurisdiction of each court.
2. Outline the ways through which the High Court supervises and reviews decisions
of the Subordinate Courts.
3. What is meant by unlimited and original jurisdiction?
4. Does the Court of Appeal and the Supreme have original jurisdiction?
5. Can the Local Courts hear criminal matters?

30
Preamble to the Act.
31
Section 12 (2) of The Local Courts Act.
32
Ibid, section 11
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UNIT TWO

GENERAL PRINCIPALS OF CRIMINAL LIABILITY

2.1 Introduction

This chapter explores the general principles that govern criminal liability. As general rule for
liability to be imposed in criminal law, an accused person must be proved to have committed
a guilt act (actus reus) whilst having had a guilt state of mind (mens rea). Otherwise, a man is
not criminally liable for his conduct unless the prescribed state of his mind is also present and
this is illustrated in the Latin maxim “actus non facit reum nisi mens sit rea”, which simply
means "no act is punishable unless it is performed with a criminal mind. At the end of this
chapter it is expected that the student will acquainted with the general elements required for
one establish criminal liability. In addition, the chapter examines the legal burden and standard
of proof.

2.2 Objectives

By the end of the lesson, the student should be:

 Aware of the different element of the Crime;
 Able to define as well as prove actus reus and mens rea; and
 Explain the burden and standard of proof required in criminal law.

2.3 Actus Reus

It is a long standing position of criminal law that the prosecution needs to establish that the
accused has committed an offence or else no criminal liability may arise.33 On this point
Corrado states the following:
“No one should be punished except for something he/she does. He/she shouldn’t
be punished for what wasn’t done at all; he/she shouldn’t be punished for what
someone else does; he/she shouldn’t be punished for being the sort of person
he/she is, unless it is up to him/her whether or not he/she is a person of that sort.
He/she shouldn’t be punished for being blond or short, for example, because it
isn’t up to him/her whether he/she is blond or short. Our conduct is what justifies

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punishing us. One way of expressing this point is to say that there is a voluntary
act requirement in the criminal law.”34
It is not the intention of the law to punish people for engaging in thoughts, desires and intentions
that may be considered as evil. On the contrary, it is the manifestation of conduct that is
prescribed as criminal that the law intends on punishing. Therefore, in criminal proceedings it
must be shown that an accused conducted themselves in a manner that is prohibited by law in
order to establish criminal liability. The criminal conduct prohibited by law is encapsulated by
the Latin word actus reus, which is translated, forbidden conduct or guilty act. For the purposes
of having a working definition, actus reus maybe defined as whatever act as laid down in the
definition of the particular crime charged which includes the consequences of the act or
omission. Consequently, from the latter, one may surmise that the term actus reus consists of
more than just an act, it covers all the elements of an offence except the mental element often
called mens rea.
Examples of actus reus can be seen from various offences under the Penal Code. For instance,
section 66(1) of the Penal Code provides that
(1) Any person who-
(a) without the permission of the President, trains or drills any other person to
the use of arms or the practice of military exercises, movements, or evolutions;
or
(b) ….. is guilty of a felony and is liable to imprisonment for seven years.

The actus reus of the offence above consists of the following:

1. Training and drilling (the two are separate activities and should be treated as such).
2. Any other person, that is, the accused person who undertakes to train or drill one or
more other persons.
3. The use of arms (these include firearms, exclusives, tear gas canisters, rocket propellers,
etc.) or the practice of military exercises, movement or revolutions. (prosecution must
elucidate those terms).
4. In the absence of the Presidents permission (the Presidents permission may be in
writing, verbal and may be issued directly or indirectly).
To make it case the Prosecution must prove all four elects espoused above beyond reasonable
doubt. Kulusika observes that the prosecution does not need to prove mens reus provided it can

34
Corrado, Michael. “Is There an Act Requirement in the Criminal Law?” University of Pennsylvania Law
Review. Vol 142 (1994), 1529.
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show the covert act of training and drilling which are sufficient to establish intention or
recklessness and lead to a conviction.35
Similarly, section 200 of the Penal Code provides:
“Any person who of malice aforethought causes the death of another person by an
unlawful act or omission is guilty of murder.”

At first glance section 200 appears simple and straight forward. However, this proposition is
incorrect. For one to meaningfully comprehend the conduct elements of murder as contained
in section 200, it is required that one examines the concepts of ‘any person’, ‘causes death’,
‘unlawful act’, ‘unlawful omission and when does the law say death has occurred for the
purposes of murder. In addition, one must also consider the legal implications of ‘malice
aforethought’. Such an analysis would be fatally incomplete if it did not involve an examination
of section 207 (causing death), 209 (limitation as to time of death), 238 (unlawful acts or
omissions causing harm) and 204 (malice aforethought).36
With the above in mind, the actus reus of section 200 can be summarized as follows:
1. Killing a human being, that is, causing the death of a human.
2. The human being must have been a reasonable creature in rerum natura
3. The killing must have been unlawful (not the hanging of a person sentenced to death;
or the killing of someone in self-defense).
4. The death of the victim must occur within a year and a day (this has since been
abolished in England and Wales).
5. The death must be attributed the accused person; this is called causation.
From the two offences given above it is clear that the actus reus of differing offences will
consist of varying elements.
Note: offences may be divided into two categories namely, (i) Conduct crimes; and (ii) Result
crimes.
Conduct crimes are those where the actus reus is the prohibited conduct itself. For instance,
under the offence of dangerous driving the only actus reus that the prosecutor has to prove is
simply that the defendant was ‘driving a mechanically propelled vehicle on a road or any other

36
Ibid, 43
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public place.37 The prosecutor does not need to prove that the dangerous driving actually caused
any harm or injury.38
On the other hand, result offences are those where the prosecutor must prove that the conduct
of the defendant actually caused or resulted in a prohibited consequence or harm. For example,
the actus reus for the crime of murder is that the conduct of the defendant actually has resulted
in the death of a victim within one year and one day from the time the conduct was committed.39

2.4 Activity

QUESTIONS FOR DISCUSSION

1. What is meant by the term actus reus?
2. What is a conduct crime and a result crime?
3. Why does the law insist upon an actus reus as a prerequisite of criminal liability?

2.5 Elements of Actus Reus

As alluded to earlier actus reus may be an act or an omission. If it is an act it must be shown
that the act was voluntary or free-willed; it is not sufficient that the accused by his bodily
movements performed the prohibited conduct or brought about the prohibited consequence
defined by the actus reus of the offence.40 In the words of the great justice and legal philosopher
Oliver Wendell Holmes, “An act is a muscular contraction, and something more. The
contraction of muscles must be willed”.41
There are a number of situations that would render actus reus involuntary. For starters, one
such instance is called automatism. This occurs where a person’s conduct is beyond his or her
control due to some external factors. Equally, it may occur where a person engages in some
conduct without being aware of what they are doing as a result of some external factor. This
was illustrated in the case of R v. Quick42. In that case Mr. Quick was a diabetic patient who
was indicted and prosecuted for assault. It was not in contention that he had hit and injured his
victim while he was in a state of hypoglycaemia. Hypoglycaemia is a medical condition of one

37
See section 2 of the Road Traffic Act
38
Asif Tufal, “Principles of Criminal Liability”, retrieved from www.lawteacher.co.uk
39
Ibid.
40
Michael Allen, supra note 2 at p. 21
41
Holmes, Oliver Wendell, The Common Law (Boston, Little Brown: 1963), 46–47
42
R v. Quick (1973) 3 All ER 347
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being unconscious, yet awake, caused by low blood sugar due to excess insulin. The
prosecution team argued that the defendant was liable for his actions because his conducted
constituted the actus reus of assault which is simply that the defendant caused injury to another
person through their (defendant’s) conduct. The defense on the other hand rebutted the
prosecutions argument and submitted that although the conduct of the defendant caused injury
to another person, it was not blameworthy conduct because it was performed unconsciously. It
was held by the Court of Appeal that the defendant should have been acquitted on the ground
of automatism. His conduct was not blameworthy because he was in an unconscious state due
to an external factor which was the taking of insulin. See also R v. Bell (1984) All ER 842.
In addition, where a person is under duress, coercion or force they may not be criminally liable
if they prove that their conduct was reasonably not voluntary. The nature and gravity of the
force against the accused person’s will is critical in determining whether or not the conduct
was voluntary. Most courts that have decided on this issue have resolved that physical force
and threats on ones’ life would suffice but not merely economic deprivation. Physical force
may include situations such as that seen in the case of Leicester v. Pearson43 where the Court
acquitted a motorist who knocked down a pedestrian on a zebra crossing after his car was
forcibly pushed into the crossing by another car that hit it from behind.
Further, where there is spontaneous reaction to a stimulus over which one has no control in the
manner they should react, often called reflex action, criminal liability may not arise. Once the
defendant successfully proves that their conduct was a spontaneous and impulse reaction to a
situation beyond their control, they will be acquitted. In Hill v. Baxter44 the defendant was
stung by a swarm of bees while driving a car on a public road. As a result, he instantaneously
lost control of the car- resulting in his trial for a traffic offence. The prosecutor submitted, inter
alia, that the conduct of the defendant was sufficient to constitute the actus reus for a charge
of a traffic offence to stand. The Court decided in favor of the defendant because his conduct
was not blameworthy as it was a reflex action over which he had no control.

2.5.1 Omission

As a general rule of criminal law no criminal liability may arise out of someone’s failure to act.
The law is concerned with prohibiting particular results from occurring and it punishes an
accused for causing the prohibited result by his/her willful act. However, like in most cases this

43
Leicester v. Pearson (1952) 2 All ER 71
44
Hill v. Baxter (1958) 1 All ER 193
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rule has its exceptions. In such cases, that is, cases that fall under the exception, criminal
liability depends on whether there is a duty imposed upon the accused either by statute or
contract to act in a particular way.
As a starting point, various statutes impose duties to act on individual in specified
circumstances. A classic example of a duty imposed by statute is section 169 of the Penal Code
were a parent neglects to provide necessities for a child. The said section reads:
“Any person… Having lawful care or charge of any child …. Refuses or neglects
to provide sufficient food, clothes, bedding and other necessaries for such child,
so as thereby to injure the health of such child is guilty of a misdemeanor.”

On the other hand, the courts have recognized that an omission where there is a contractual
duty to act may give rise to criminal liability especially where the failure to fulfil a contractual
obligation is likely to endanger lives. In R v. Pittwood45 the accused was convicted of gross
negligence manslaughter following the death of a road user who was hit by a train on a level
crossing. The accused was employed by the railway company to look after the crossing and
ensure that the gate was shut when a train was due to pass. When the collision occurred the
accused was away from his post having left the gate open. His actions were regarded as grossly
negligent, and his contention that his contractual obligations gave rise to no duty to the public
was dismissed as he was paid to keep the gate shut and protect the public.
Aside from the two exceptions mentioned above it is accepted at common law that criminal
liability for an omission may arise in the following situations:
1. Where the existence of close relationship gives rise to a duty to act. Under this
exception parents are under a duty to their children to protect them from physical
harm and spouses are under a duty to aid each other. See Gibbins and Proctor
(1918) 13 Cr App R 134 and Smith [1979] Crim LR 251.
2. Where a person voluntarily undertakes to care for another person who is unable to
care for him/herself, whether from infancy, mental illness or other infirmity, a duty
will be owed to that person. In R v. Instan46 D, who was without independent means,
lived with her aunt who became ill and for the last twelve days of her life was unable
to care for herself or summon help. D did not give her any food or seek medical
assistance but she continued to live with the aunt and eat her food. D was convicted
of manslaughter on the basis that by remaining with the aunt a duty was imposed on

45
R v. Pittwood (1902) 19 TLR 37
46
R v. Instan (1893) 1 QB 450.
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her to care for the aunt, which duty she had willfully and deliberately left
unperformed.
3. Where a person inadvertently and without the appropriate mens rea does an act which
starts a chain of events which, if uninterrupted, will result in harm to another or his
property (or any other interest protected by the criminal law), that person, on
becoming aware that he was the cause, is under a duty to take such steps as lie within
his power to prevent or minimize the risk of harm. If, before the harm occurs, he
realizes what he has done and with appropriate mens rea he fails to take such steps,
he will be criminally liable. The authority for this principle is the R v. Miller47 case.
In that case, D a vagrant who was squatting in a house, awoke to find that a cigarette
he had been smoking had set fire to the mattress on which he was lying. He did not
attempt to extinguish the fire but moved to another room. The house caught fire. D
was convicted of arson contrary to s. 1(1) and (3) of the Criminal Damage Act 1971.
The House of Lords dismissed his appeal against conviction holding that when D
became aware of what he had done in setting the mattress on fire he was under a duty
to take such steps as were within his power to prevent or minimize the damage to the
property at risk.

2.5.2 Causation

Where an accused is charged with a result crime, it is necessary for the prosecution to prove
that his acts or omissions caused the prohibited consequence.48 In murder or manslaughter, for
example, it is necessary to prove that the accused, by his acts or omissions, caused the death of
the victim.49 The underling point here is this, the accused’s act must be a substantial cause of
the result , that is to say, the accused must have caused harm suffered by the victim. It is often
said that the accused must take his/her victim as he or she finds him or her. This means that the
accused will be held liable for harm caused to the victim even when the accused had no way
of knowing that the victim was suffering from a terminal illness which aggravated the condition
of the victim resulting injuries or death.
However, the chain of causation, that is, the chain of events that ended as the harmful result
may be broken by new intervening acts (actus interveniens). These intervening acts or events
must be novus actus interveniens, meaning, the intervening acts or events that take over as the

47
R v. Miller [1983] 2 AC 161
48
Michael Allen, supra note 2 at p. 33
49
Ibid.
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new ‘operative’. In R v. Pagett50 Lord Goff said that the Latin phrase, actus interveniens,
means the intervening ‘act was so independent of the act of the accused that it should be
regarded in law as the cause of the victim’s death to the exclusion of the act of the accused’.
2.5.2.1 Factual and Legal Causation.
Causation in criminal liability is divided into factual causation and legal causation. Factual
causation is the starting point and it applies were the accused's conduct must be a sine qua non
of the prohibited consequence. In other words, it must be established that the consequence
would not have occurred as and when it did but for the accused's conduct. This is sometimes
referred to as the 'but for' test.51 In R v. White52 D put cyanide into his mother's drink with
intent to kill her. Later his mother was found dead with the glass containing the poisoned drink
beside her three parts full. Medical evidence established that she had died of heart failure and
not from poisoning. D was acquitted of murder as he had not caused her death and thus there
was no actus reus. He was, however, convicted of attempted murder.
The fact that factual causation is established, however, does not mean that legal causation can
be established. For example, A shows B a job advertisement. B applies for the job and C, the
employer, invites her for interview. On her way to the interview B is attacked by D while
walking through a park and killed. But for A showing B the advertisement she would not have
applied for the job and but for C inviting her for interview she would not have been in the park
and been killed as and when she was. No one would argue, however, that A's and C's acts
should be regarded as legal causes of B's death. It is D's acts which are the legal cause of B's
death.53
As illustrated by the example above, not all but-for causes are legal causes of an event. Legal
causation, on the other hand, is where the prosecution must prove that the accused’s conduct is
the operating and substantive cause of the prohibited consequences. see R v. Smith (1959)
ALLER 193
On legal causation Glanville Williams comments:
When one has settled the question of but-for causation, the further test to be
applied to the but-for cause in order to qualify it for legal recognition is not a
test of causation but a moral reaction. The question is whether the result can
fairly be said to be imputable to the defendant .... If the term cause' must be used,

50
R v. Pagett (1983) 76 Cr. App. R. 279
51
Michael Allen, supra note 2 at p 33
52
R v. White (1910) 2 KB 124
53
Michael Allen, supra note 2 at p 33
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it can best be distinguished in this meaning as the 'imputable' or 'responsible' or

'blamable' cause, to indicate the value judgment involved.54
In order to establish causation, the law requires the prosecution to meet certain requirement.
These include:
1. Operative clause. This rule requires the prosecution to demonstration that the initial
wound inflicted by X on Z is still the operating cause of Z’s death even through Z
refused medical treatment for religious reasons. See R v Smith (1959) ALL ER 193.
2. Substantial clause. The rule provides that X’s act must have been the substantial cause
of the prohibited consequence. Thus the acts of X must be a significant cause of the
prohibited consequence. The fact that the victim of murder also contributed to the death
is no defense.
3. Proximity. See R v Cato (1976) 1 WLR 110
4. Beyond the de minimis. See R v Pagett (1983) 75 Cr. App. R. 279
5. novus actus interveniens

2.6 Activity

QUESTIONS FOR DISCUSSION

1. Identify the elements of actus reus?
2. Distinguish between legal and factual causation?
3. Read the case of Mbomena Moola v The people (2000) ZR 148 Supreme Court,
on Causation and discuss.
4. Conduct a desktop research on the ‘Thin Skull’ Rule and list at least 3 salient
aspects thereof.
5. Darius attacks Veronica, leaving her unconscious. Adam and Bernard walk past.
Adam does nothing but Bernard, experienced in first aid, attempts to treat Veronica
but gives up after a few moments because he is late for a meeting. At the hospital,
Dr Eric fails to spot Veronica’s head injuries and assumes she is unconscious
because she is drunk. Veronica dies from her injuries two hours later. The inquest
determines that she would have survived had she received prompt treatment.
Discuss the criminal liability of the parties.
6. novus actus interveniens. Discuss.

54
Ibid.
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2.7 Mens Rea

The importance of the doctrine of mens rea cannot be over emphasized. According to Stephen
J the “full definition of every crime contains expressly or by implication a proposition as a state
of mind. Therefore, if the mental element of any conduct alleged to be a crime is proved to
have been absent in any given case, the crime so defined is not committed; or again is fully
defined, nothing amounts to that crime which does not satisfy that definition.”
The Latin term mens rea, which means guilty mind, refers to the mental element necessary for
a particular crime.55 It is encumbered on the prosecution to prove that the accused committed
an offence while in a certain state of the mind; that state of the mind is what is termed as mens
rea. In other words, this fundamental principle states that the defendant (the accused) should
be held criminally liable for events or consequences which he or she intended or knowingly
risked. He or she should be held criminally liable, if he or she was aware of the possible
consequences of his or her conduct.56
Williams as quoted by Kulusika writes that mens rea means the mental element necessary for
the particular crime, and this element may be either intention to do the immediate act or bring
about the consequences or recklessness as to such acts or consequences. 57 This principle also
covers situations where the defendant acts in certain ways with the knowledge of certain facts.
Examples of mens rea include: malice aforethought in the case of murder58 and fraud and the
intention permanently to deprive in cases involving theft.59
There are generally three states of mind which separately or together can constitute mens rea,
and these are:
 Intention
 Recklessness
 Knowledge

55
Michael Allen, supra note 2 at p 49
56
Kulusika, S.E., Criminal Law in Zambia Cases and Materials (Lusaka, Multimedia Publications: 2005), 53
57
Ibid.
58
Section 204, section 207 of the Penal Code.
59
Section 265 of the Penal Code.
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2.7.1 Intention

In many offences the mens rea required is that of intention to cause the prohibited result.
Intention is a word in ordinary use. Its meaning, however, is not clear. The courts have for a
long time struggled with a definition for intention. According to Glanville Williams' judges
decline to define [intention], and they appear to adjust it from one case to another'.60 Concise
Oxford Dictionary defines 'intend' as 'have as one's purpose' and 'intention' as 'intending, one's
purpose ... object ... ultimate aim'. As used in the criminal law, intention does not appear to
have such a clear or restricted meaning.61
Intention is considered the highest form of mens rea and should be approached from two
angles. Firstly, it may be used to cover the state of mind of an actor where he/ she aims or
decides for example to kill. This is called direct intent. Here the actor sets out to realize a result
or consequences that he/she aims.62 For example, Y shoots at Z in order to kill him. In this
situation Z's death is both desired and intended by Y. The consequence of Z's death may be
said to be Y's purpose, aim or objective.63
Secondly, intention may cover the state of mind of a person who thinks it virtually certain that
certain consequences will ensue.64 Here the consequence is foreseen by the accused as certain
or virtually certain although as a result of his/her actions, he/she does not positively desire it,
(he/she may in fact hope it does not happen) but he goes ahead with action anyway. For
example, Y sees Z standing behind a window and shoots at Z in order to kill him realizing that
to do so the bullet must first break the window. In this situation it may be said that Y intends
also to break the window as this is a necessary precondition to killing Z. This may be described
as oblique intention; breaking the window is Y's subsidiary aim or secondary purpose which
must be achieved if he is to achieve his ultimate aim or primary purpose.65

2.7.2 Recklessness

Generally, recklessness means unjustifiable risk taking. That is, X’s actions involved a risk of
the prohibited conduct or the consequence ensuing, and is unreasonable, on the part of X, and
in the circumstances to take that risk.66 There are species of recklessness and these include:

60
Michael Allen, supra note 2 at p. 56
61
Bob Ducket, Concise Oxford Dictionary (11th edn) (Oxford, Oxford University Press: 2004)
62
R v. Moloney (1985) AC 905
63
Michael Allen, supra note 3 at p.50
64
Kulusika, S.E., Criminal Law in Zambia Cases and Materials, supra note 56 at p. 53.
65
Michael Allen, supra note 2 at p. 50
66
Kulusika, S.E., Criminal Law in Zambia Cases and Materials, supra note 56 at p. 56
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a) Subjective recklessness or Cunningham recklessness so called following the case of R

v. Cunningham (1957) 2 All ER 412 (CA). The main element in subjective
recklessness is that X must know that he/she is taking a risk of the prohibited
consequence taking place. In this case the accused is consciously, deliberately takes the
risk realizing that the prohibited consequence might occur. The accused is aware and
foresees the possibility the prohibited consequence occurring.67
b) Objective recklessness or Caldwell recklessness following the decision of the House of
Lords in Metropolitan Police Commissioner v. Caldwell (1981) 1 All ER 961. The
facts of the case were that D got drunk and set fire to a hotel in pursuit of a grievance
he had against the owner. There were guests in the hotel at the time but the fire was
discovered and extinguished before any serious damage was done. D was indicted on
two counts of arson. He pleaded guilty to the first count of intentionally or recklessly
damaging property belonging to another contrary to s. 1(1) of the Criminal Damage Act
1971 but pleaded not guilty to the second count of damaging property with intent to
endanger life or being reckless whether life would be endangered contrary to s. 1(2) of
the 1971 Act. He claimed that he was so drunk at the time that the thought that he might
be endangering life had never crossed his mind. Lord Diplock took the opportunity to
explain objective recklessness as where a person ‘does an act which in fact creates an
obvious risk that property will be destroyed or damaged and (2) when he does the act
he either has not given any thought to the possibility of there being any such risk or has
recognized that there was some risk involved and has none the less gone on to do it.
See also The People v. Lawrence Mumanga (1985) ZR 35.

2.7.3 Knowledge

The term knowingly is used to impose a requirement of mens rea. Under section 318 of the
Penal Code, X will be convicted of receiving or retaining stolen good if he/she knows or has
reasonable ground to believe the good as having been stolen68. There are several degrees of
knowledge:
a) Actual knowledge: that is where X knows for a fact that something is true.
b) Willful-blindness: this is where X deliberately shuts is eyes to the obvious facts before
him/her or refrains from enquiring for fear of confirming his/her suspicions.

67
Ibid.
68
Kulusika, S.E., Criminal Law in Zambia Cases and Materials, supra note 68 at p. 57.
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c) Constructive knowledge: it is where X ought as a reasonable person to have made

enquires.69

2.8 Activity

QUESTIONS FOR DISCUSSION

1. What is mens rea?
2. What is recklessness?
3. Explain the differences between subjective and objective recklessness?
4. Conduct a study on the doctrine of transferred malice and its application?

2.9 Coincidence of Actus Reus and Mens Rea

This legal principle of criminal law requires that for there to be a crime there must be
concurrence between the blameworthy conduct and the guilty state of mind. That is to say, both
the intent and the act must be present at the same time. A crime is committed only when actus
reus and mens rea concur in time. For instance, there is no burglary if a person breaks into
shelter escaping from a storm and only then steals. Only theft, and not burglary is committed
because at the time of entry the person had no intent to ‘break in and steal. 70
In Fagan v MPC 71 Fagan accidentally drove his car onto a policeman’s foot who had ordered
him to pull-over. When the officer screamed in pain, Fagan vindictively refused to remove it
immediately because an altercation had ensued between the two. The contentious legal issues
arose from the question whether Fagan would be liable for assault considering that he had no
ill-intent (mens rea) at the time he committed the actus reus of accidentally driving onto the
officer’s foot. It was held that the actus reus of assault was a continuing act which, initially
started without mens rea, was still in progress when mens rea was subsequently formed and so
there was coincidence of mens rea and actus reus at some point sufficient to constitute criminal
liability. Consequently, Fagan was convicted.
The court in Fagan also observed that if an act is complete, even though results continue to
flow from it, the subsequent inception of mens rea cannot convert it into an offence. For
example, if Y accidentally runs over Z in his car and Z sustains injuries from which he dies

69
Ibid.
70
Michael Allen, supra note 3 at p 45
71
Fagan v MPC (1969) 1 QBC 439
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some time later, Y's desire that Z die, formed after the accident, will not convert Z's death into
murder. The act which caused death was complete prior to the formation of Y's desire, even
though the results of the act continued to flow up to the point of Z's death.
In R v. Thabo Meli72, the appellants struck Z over the head with intent to kill him. Z's body
was rolled over a cliff to make his death appear to be an accident. In fact, Z died from exposure
and not from the initial blow to the head. The appellants had mens rea when they struck Z, but
Z died from the act of disposal when they did not have mens rea as they believed they were
disposing of a corpse. The appellants were undoubtedly guilty of attempted murder but the
Privy Council upheld the convictions for murder because, as they stated (at p. 230) it was:
“impossible to divide up what was really one series of acts in this way. There is
no doubt that the accused set out to do all these acts in order to achieve their plan
and as parts of their plan; and it is too refined a ground of judgment to say that,
because they were under a misapprehension at one stage and thought that their
guilty purpose had been achieved before in fact it was achieved, therefore they
are to escape the penalties of the law.”

In R v. Thabo Meli the Privy Council treated the chain of events as a continuing actus reus.
The actus reus of causing death started with the victim being struck on the head and continued
until he died out of exposure.

2.10 Legal Burden and Standard of Proof

In criminal cases the burden of proof is throughout the trial rests on the prosecution to establish
the case against the accused beyond all reasonable doubt. If the court has a doubt, then the court
must acquit. The statement above speaks to two important issues. Firstly, the burden to prove
the guilt of the accused rests upon the prosecution, that is, burden is on the prosecution to prove
the facts essential to their case.73 In Zambia, any talk of the burden of proof starts with the
Constitution. Under article 18 (2) (a) of the Zambian Constitution a person is presumed to be
innocent until proven guilty. This presumption operates as to place the burden of proof on the
prosecution in a criminal case.
In both criminal and civil cases, the all-encompassing maxim that regulates the legal system is
“He who alleges must prove”. Thus, the burden or onus of proof is invariably on the prosecution
in criminal proceedings. This burden also known as the ‘legal or persuasive burden’ of proof

72
R v. Thabo Meli (1954) 1 WLR 228
73
Woolmington v DPP (1935) AC 462
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does not shift but remains on the proponent of facts, i.e. the prosecution throughout the
proceedings.
In Woolmington v DPP the accused was charged with murder of his wife by shooting, he
claimed accident, at first instance the judge had ruled that after the crown or prosecution had
proved actus reus, it was left to the defense to prove lack of malice aforethought. This was
overruled and Lord Sankey noted:
‘throughout the web of English criminal law one golden thread is always to be
seen that is it is for the prosecution to prove the prisoner’s guilt...But while the
prosecution must prove the guilt of the prisoner, there is no such burden laid on
the prisoner to prove his innocence and it is sufficient for him to raise doubt as
to his guilt.; he is not bound to satisfy the jury of his innocence…[W]here intent
is an ingredient of the crime there is no onus on the defendant to prove that the
act alleged was accidental…that it is the duty of prosecution to prove the
prisoner’s guilt subject to what I have already said as to the defense of insanity
and subject also to any statutory exception. If, at the end of and on the whole of
the case, there is a reasonable doubt, created by the evidence given by either the
prosecution or the prisoner, as to whether the prisoner killed the deceased with
a malicious intention, the prosecution has not made out the case and the prisoner
is entitled to an acquittal.”

Note: In certain instances, statutes lay the burden on the defendant i.e. when accused raises a
defense of insanity under section 11 of the Penal Code CAP 87 he must prove that he is insane.
Secondly, the question now to be answered is how strong does the prosecution’s evidence have
to be, in order to prove the conclusion that is supposed to be proved in a given case. As alluded
to earlier the prosecution must prove their case beyond reasonable doubt. This is referred to as
the standard of proof. Basically, the standard of proof refers to the degree to which the burden
of proof is discharged.
In Miller v Minister of Pensions,74 Denning M R set out the following standard:
“The degree of cogency required in a criminal case before an accused person is
found guilty…is well settled. It need not reach certainty, but must carry a high
degree of probability. Proof beyond reasonable doubt does not mean proof
beyond the shadow of doubt. The law would fail to protect the community if it
admitted fanciful possibilities to deflect the course of justice. If the evidence is
so strong against a man as to leave only a remote possibility in his favor which
can be dismissed with the sentence ‘of course it is possible, but not in the least
probable,’ the case is proved beyond reasonable doubt.” And nothing short of
this will suffice”

74
Miller v Minister of Pensions (1947) 3 ALL E R 372
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Evidently, to prove that the defendant is guilty of the crime he/she is alleged to have committed
it is required that this conclusion be established ‘‘beyond reasonable doubt.’’ The term
‘‘reasonable’’ is attached because it is not possible to prove any claim about past conduct
beyond all doubt. What the standard requires is that any doubt that remains should be so
insignificant that a reasonable person would nevertheless believe that the accused has
committed the crime.75

2.11 Activity

QUESTIONS FOR DISCUSSION

1. What is meant by actus reus and mens rea should coincide?
2. Analyze what is meant by the term beyond reasonable doubt?
3. When and in what circumstance does the burden of proof shift from the prosecution
to the defence?

75
Walton, Douglas N., Legal Arguments and Evidence (Pennsylvania, The Pennsylvania State University:2002),13
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UNIT THREE

STRICT LIABILITY

3.1 Objectives

By the end of this unit, you should be able to:

i. Explain the meaning of strict liability: and
ii. Identify the strict liability offences.

In some offences the prosecution need not prove mens rea as to one or more elements of the
actus reus. These crimes are known as ones of strict liability. Therefore, though there must
always be an actus reus, there need not always be a mental element in relation to each part of
the actus reus. For example, suppose that a statute forbids butchers to sell meat unfit for human
consumption. If one does, the court may say that he or she is guilty even though he or she does
not know that the meat is bad. There is then no mens rea, knowledge, as to the unfitness.76
However, there is however a presumption that mens rea is required as an essential ingredient
of an offence. It must be appreciated that strict liability offences are not necessarily devoid of
any mens rea or negligence. None of the two is required in respect of at least one element of
the actus reus.77
In Sweet v. Parsley78 the appellant, Stephanie Sweet (S), was a sub-tenant of a farmhouse,
where cannabis resin was found. S no longer lived in the house and had let out several rooms
to tenants. She did retain a room but only returned occasionally to collect letters and rent. The
appellant was charged and convicted under Section 5(b) of the Dangerous Drugs Act 1965
(1965 Act) with “being concerned in the management of premises used for the purpose of
smoking cannabis resin.” The issues in question for the appeal court were (1) whether Section
5(b) created an absolute offence and (2) if not, what was the requisite mens rea for the offence.
The appellant, S, appealed against her conviction, claiming that Section 5(b) required the mens
rea of knowledge of the prohibited purposes which the farmhouse was being used for. While S
accepted that the premises had been used for smoking cannabis resin, she had no knowledge
of this use.

76
Michael Jefferson, Criminal Law (9th edn) (London, Pearson Education Limited: 2009), 134
77
Kulusika, S.E., Criminal Law in Zambia Cases and Materials, supra note 56 at p.
78
Sweet v. Parsley (1969) 1 ALL E R 347; (1969) 2 WLR 470
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The Court of Appeal held that section 5(b) of the 1965 Act did not create an absolute offence.
Unless it is the clear intention of Parliament that an offence is an absolute or regulatory offence
(imposing strict liability), the presumption of mens rea prevails for ‘true’ crime offences. The
words ‘being concerned in the management’ under section 5(b) had to be read as importing a
mens rea of knowledge as to the use of the premises for the prohibited purpose, therefore the
offence was a ‘true crime,’ not a regulatory crime. The conviction was therefore quashed, as S,
did not have the requisite mens rea for the offence under section 5(b) of the 1965 Act.
Below are examples of strict liability offences.

3.2 Regulatory offences

These offences are purely regulatory where no moral issue is at stake i.e. sale of food. In
Patel's Bazaar Limited v. The People79 a servant of the appellant company sold a wrapped
sliced loaf to a customer from a consignment of such loaves which had arrived that very day
from the manufacturers. The food was pronounced unwholesome at the time it was sold by the
appellant company. The substantial issue before the Court was whether or not it had any
‘reasonable excuse’ for selling that unwholesome loaf sufficient to excuse it from liability
under the Public Health Ordinance.
The appellant Patel’s Bazaar limited appeals against a judgement of the High Court dismissing
its appeal against the conviction of the Magistrate ‘s Court for the offence of selling
unwholesome food contrary to sec 79 (1) of the Public Heath Ordinance (Cap 126). What
Judges focused on deciding the case was on the intention of the legislature in enclosing section
79 (1) it was argued that the section of the Ordinance was intended to afford the public with
maximum protection against the danger of being sold unwholesome food. Since that was the
intention of the National Assembly in including section 79(1) then the appellant did not require
mens rea or need to establish an intention neither could it be established on the basis of
negligence. Appeal was dismissed.
Additionally, In Smedleys Ltd v. Breed80 the defendant company was convicted of selling
food which was not of substance demanded by the purchaser. The House of Lords held that the
defendant company was liable even though no other practicable preventive measures could
have been taken and the standard of care taken at the factory was extremely high.

79
Patel's Bazaar Limited v. The People (1965) ZR 84 (CA)
80
Smedleys Ltd v. Breed (1974) AC 839
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3.3 Public danger Offences

On the protection of the public as this is of paramount importance to a state, the highest standard
of care is felt necessary. This covers pollution cases, dangerous drugs, weapons and pollution
cases. In R v. Steele81 the defendant was convicted on a charge of possession of a firearm
without a certificate under the British Firearms Act 1968. His defense was that he had been
given a hold all containing a sawn off short gun minutes before the police apprehended him.
On appeal his conviction was confirmed as it was irrelevant that he did not know or even could
not reasonably have known what the bag contained.
a) Dangerous drugs offences
In this respect dangerous drug offences are meant for protection of public safety. In R v.
Marriot82 the defendant was found in possession of a penknife which he knew had traces of a
substance that turned out to be a prohibited drug. The court said the defendant needed the mens
rea with regard to possession of a substance on the knife but no mens rea no mens rea with
regard to the circumstance that the substance was a prohibited drug. It was irrelevant that he
did not know or could not reasonably have known that the substance was a prohibited drug.
See Sweet and Parsley on the limits of this policy on dangerous drugs cases.
b) Road Traffic Offences
Some road traffic offences where strict liability is imposed are of regulatory, quasi –criminal
in nature. For example, careless driving and being in charge of a motor vehicle while under the
influence of drink or drugs; sections 195 and 197 of the Roads and Road Traffic Act Cap 464.
c) Pollution offences: Crimes of pollution are designed to protect the public.

QUESTIONS FOR DISCUSSION

1. What is the meaning of the term strict liability?
2. What sort of offences are regarded as strict liability offences?
3. Mention defences that could be relied upon by persons charged with a strict liability
offence. Use cases to support your argument.
4. Give examples of four examples of strict liability offences in the Penal Code?

81
R v. Steele (1993) Crim LR 298
82
R v. Marriot (1971) 1 ALL E R 595; (1971) 1 WLR 187; 55 Cr App Rep 82
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UNIT FOUR

MODES OF PARTICIPATION IN CRIME

4.1 Objectives

At the end of the unit, the student should be able to:

 critically discuss the various ways in which a person may participate in the commission
of an offence; and
 discuss the legal implications in terms of distributing criminal liability to the multiple
offenders or individual participants.

4.2 Introduction

In certain cases, there are several persons involved in the commission of an offence. It often
happens that a person joins another person or other person, in an unlawful enterprise, to commit
an offence or offences. In such cases all the participants in the offence may be held liable. The
role of the criminal law in such circumstances is to assess the role of the parties and to
determine the proper scope of criminal liability of the parties to the joint unlawful enterprise.83
With regards to offences involving participation in an offence, offenders are of two categories:
(i) the principal offender; and (ii) joint offenders/ accessories.

4.3 Principal Offender

In terms of section 21(1)(a) of the Penal Code, a principal offender is one whose act is the most

immediate cause of the commission of the offence. Accordingly, the principal offender is the

main perpetrator who commits the actus reus or the substantial party of the act. It should be

noted that it is possible to have more than one principal offender if more than one person is

responsible for the act. The aforementioned is subject to one major exception, that is, where

the principal offender exempted from criminal liability due to some legal or factual disability

the person who counsels or procures the commission of the offence will be held liable.84

83
Kulusika, S.E., Criminal Law in Zambia Cases and Materials, supra note 56 at p. 148
84
Ibid.
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4.4 Joint Offenders

The starting point for offences committed by joint offenders is section 22 of the Penal Code.

The said section provides as follows:

“When two or more persons form a common intention to prosecute an unlawful

purpose in conjunction with one another, and in the prosecution of such purpose
an offence is committed of such a nature that its commission was a probable
consequence of the prosecution of such purpose, each of them is deemed to have
committed the offence.”

Basic character of an unlawful joint enterprise according to section 2 cited above is that:
a) the course must be undertaken by two or more persons;
b) the need for a shared common intention;
c) there must be a joint unlawful enterprise; and
d) the secondary party would be liable for offences committed by the principal in carrying
out that purpose. As a consequence, the secondary party is guilty of offence regardless
of the role they play in joint venture. This means where a member of an unlawful joint
enterprise causes death, members of the joint enterprise could also be held guilty.
Following the provisions of section 22 above, in Mwape v. The People85 the Zambian courts
pronounced that two or more persons may act as principals or as accessories if they have
common [unlawful] purpose. However, the doctrine of joint principals and common purpose
enterprise originates in the 1846 case of R v. Swindall and Osborne.86 The synopsis of the
case is that two cart drivers engaged in a race which resulted in one of them knocking down a
pedestrian to death. It was not known which one had driven the fatal cart, but since both were
equally encouraging each other in the race, it was immaterial which of them had actually killed
the man. As such both were held liable as joint principals. From this case it has since been
established over time that for this doctrine to operate, the parties must share a common purpose
and make it clear to each other by their actions that they are acting on their common intention
so that each member of the group assumes responsibility for the actions of other members in
that group.
The same position has been taken in Zambia. In Mutambo & Others v The People87 it was
observed that when individuals embark on a joint venture all that flows from the execution of

85
Mwape v. The People (1976) ZR 160
86
R v. Swindall and Osborne (1846) 2 Car & K 230
87
Mutambo & Others v The People (1963- 64) ZR 15
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the plan will make them all liable. This was a murder case in which the Court of Appeal
considered, inter alia, the import of section 22 of the Penal Code.
In a judgment delivered by Charles J, the Court of Appeal observed (at pages 25-26), that to
bring an appellant within section 22 as being guilty of murder, the following facts must have
been proved against him beyond reasonable doubt:

i) that two or more persons, of whom the appellant was one, each formed an intention
to prosecute common purpose in conjunction with the other or others;
ii) that the common purpose was unlawful;
iii) that the parties, or some of them, including the appellant; commenced or joined in
the prosecution of the common purpose;
iv) that, in the course of prosecuting the common purpose, one or more of the
participants murdered a person; and
v) that the commission of the murder was a probable consequence of the prosecution
of the common purpose.
The Court of Appeal pointed out (at page 26), that it would seem that a probable consequence
is that which a person of average competence and knowledge might be expected to foresee as
likely to follow upon the prosecution of the particular purpose; though it may be that the
particular consequence was not intended or foreseen by the appellant.

Clearly, this is a question of causation in that oblique intention will be imputed for intermediate
consequences that are a necessary precondition to achieving the ultimate purpose, and liability
will follow where there are accidental and unforeseen departures from the plan so long as there
is no novus actus interveniens to break the chain of causation.
In Winfred Sakala v. The People88 the appellant argued that he had agreed to participate in a
simple breaking & theft in which there would be no violence. Court held that though appellant
had been told that there would be no harm done to the watchman the appellant must have
realized that possibly some force against the watchman would have to be applied if he
discovered the intruders. The act of assaulting the watchman did not take the act out of the
scope of common purpose but was clearly an apparent consequence of deliberately setting out
to steal property known to be under the immediate and personal care and protection of the

88
Winfred Sakala v. The People (1987) ZR 23
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watchman whose specific duty was to prevent and deter robbers like the appellant from taking
his employer’s property. The appeal was dismissed.
However, where an offence is committed outside the purpose of the joint enterprise by the
principal offender, the accessory would not be held liable. (see Davies v. DPP). Additionally,
where there is discontinuation of assistance or encouragement there is need for the secondary
party to do something to counteract his or her previous contribution to the principal offender.
See R v. Becerra (1975) 62 Cr. App. R 212

4.5 Accessory (Secondary Offenders)

According to the sections 21 of the Penal Code an accessory or secondary offender is one who
aids, abets, counsel, or procures the commission of an offence. Kulusika commenting on the
provisions of section 21 notes that the section appears to treat the categories mentioned above
as having committed the offence themselves. He adds that each one of them is adjudged as
guilty and may be charged, tied, convicted and punished as the principal offender.89
Note: an accessory must have the requisite mens rea in relation to his/her own conduct. In
addition the accessory must also have mens rea in relation to the crime committed by the
principal.90
The four species of accessory outlined above are considered in greater depth hereunder.

4.5.1 Aiders

An aider or an enabler is the person who assists the principal in the commission of a crime; for
example, the one who holds the victim while the others rob or stab him or the person who
facilitates crime by provision of transport like the taxi-driver used as an escape vehicle in a
robbery or stock theft. See section 21 (1) (b) of the Penal Code.

4.5.2 Abettors

An abettor is the person who encourages or urges the perpetrator or other participants, and the
principal draws encouragement from him. See section 21 (1) (c) of the Penal Code.
In Wilcox v Jeffrey91 the accused was present at a concert given by the person who was
performing in the country in contravention of the Aliens Order 1920. He had earlier met the

89
Kulusika, S.E., Criminal Law in Zambia Cases and Materials, supra note 56 at p. 148
90
Ibid, 150
91
Wilcox v Jeffrey (1951) ALL E R 464; [1951] 1 T L R 706
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performer at the airport and afterwards praised the performance in a magazine/ periodicals of
which he was the proprietor. The Court held that to be sufficient encouragement to constitute
secondary participation.

4.5.3 Counsellor

A counsellor is person who provides advice to the perpetrator or other participants prior to the
commission of the offence and may not be present at the scene of the crime. See section 21 (1)
(d) of the Penal Code. In R v. Calhaem92 the defendant was charged with murder by
counselling another to commit murder. The other testified that despite the accused’s
instructions he had no intention to commit murder but when he got to the deceased’s flat he
had gone ‘berserk’ and killed her. The judge directed the jury that counselling involved ‘putting
somebody up to something’ and that the acts were carried out within the scope of advice. On
appeal against conviction on the ground that there had to be connection between the counselling
and the act, the court decided that there was no such requirement.

4.5.4 Procurer

A procurer is one who provides the means for use in the commission of the offence; i.e.
provision of a gun or ammunition for the purposes of committing aggravated robbery. It is not
necessary that the procuring was without knowledge but procuring does imply causal
connection.
Where one is charged with counselling or procuring in a criminal offence and the principal is
acquitted so should the other parties be acquitted of that offence or be charged with some other
offence. Read sections 389 and 399 of the Penal Code CAP 87; see also the case of Shindano
v The People (1972) ZR 155.
Note: Mere presence at the scene of crime and omitting to stop the commission of the offence
or not reporting it is not being a participant. Thus being present at the scene of murder does not
make one guilty of murder unless he is a participant and was aware a weapon will be made use
of during the commission of the crime. See National Coal Board v. Gamble [1959] 1 Q B 11

4.6 Additional Information

Accessories after the fact are persons who assist the participants of the crime to escape the
course of justice by for example hiding them. See R v. Levy [1912] 1 KB 158

92
R v. Calhaem (1985) QB 808
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The one who receives goods known to be stolen which are expected to be exhibits in court is
known as an accessory after the fact. Read Section 397 of the Penal Code. However, under
section 397(2) of the Penal Code, a spouse who helps another spouse to escape being
prosecuted is not an accessory after the fact. The maximum sentence for an accessory after the
fact in relation to a felony is 3 years and under section 217 an accessory after the fact to murder
is guilty of a felony and is liable to imprisonment for 7 years.

QUESTIONS FOR DISCUSSION

1. Mulenga and Mukuni agree to break into a shop in their neighborhood provided
that no violence was going to be used. On the way to the shop, Mukuni notices that
Mulenga is carrying a knife but does not say anything. When they reach the shop,
Mulenga stabs the guard who dies five hours later. What would they be charged
with and convicted of? Would Mukuni or Mulenga have any defences?
2. Discuss the major distinguishing feature of the following participants in a crime:
(i) abettors; (ii) aiders; (iii) accessories; (iv) accomplices; and (v) joint principals.
3. Why isn’t a spouse who helps his/her spouse escape from being prosecuted not an
accessory after the fact?

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UNIT FIVE

GENERAL DEFENCES

5.1 Objectives
By the end of this session, the student should be able to:
i. Explain general defences available to a defendant which can be relied upon to eliminate
criminal liability for whatever offence charged
ii. Understand the provisions of the Penal Code that establish the various defences
iii. Examples of cases to illustrate the provisions.

5.2 Introduction
The criminal law is not based solely on a series of offences, which are concerned with
preventing harms on pain of sanctions, but also on a number of defenses which qualify the
offences.93 This section examines those defenses, referred to as general defenses, which are
available to an accused person which he/she may use to negative criminal liability for whatever
offence he/she is charged. The defenses to be considered include defenses which affect the
accused person’s capacity to commit the offense charged e.g. infancy and insanity. These
defenses apply where the law presumes that the accused is incapable of committing the offense.
Other defenses considered here operate to negative an element of crime such as mens rea; self-
defense, or prevention of crime, mistake. Others such as duress, necessity etc. where the
prosecution can prove the various elements of the offence including actus reus and mens rea,
but the law determines that criminal liability of the accused person is negated by excusatory
circumstances.94 Defenses should be regarded as distinct elements of the offence charged apart
from, and in addition to actus reus and mens rea.95
Note: General defenses are broadly divided into two groups: those which are referred to as
justificatory and those which are excusatory by nature, i.e. the former are used to justify an
accused’s criminal conduct while the latter are those that excuse an accused’s criminal conduct.

93
Michael Jefferson, supra note 77 at p. 244
94
Kulusika, S.E., Criminal Law in Zambia Cases and Materials, supra note 56 at p. 196
95
Ibid, 197.
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5.3 Insanity
For the accused to have this defense which operates to negate the mens rea of any crime he
must show that he was insane at the time of the offence. Accordingly, where, on the ‘balance
of probabilities, the defendant adduces sufficient evidence to prove that he/she suffered from
such a mental disease or defect and that he/she was unable to appreciate the consequences of
their actions or did not know that what they were doing was wrong he/she must be acquitted.96
In Zambia, insanity as a defense is provided for under sections 11 and 12 of the Penal Code.
Sections 11 reads:
“Every person is presumed to be of sound mind, and to have been of sound mind
at any time which comes in question, until the contrary is proved.97
Then section 12 reads:
“A person is not criminally responsible for an act or omission if at the time of
doing the act or making the omission he is, through any disease affecting his
mind, incapable of understanding what he is doing, or of knowing that he ought
not to do the act or make the omission. But a person may be criminally
responsible for an act or omission, although his mind is affected by disease, if
such disease does not in fact produce upon his mind one or other of the effects
above mentioned in reference to that act or omission.”

The law under section 11 operates in such a way as to presume every person sane or rational at
all times until the contrary is established. The resulting effects of this presumption is that the
rules of the criminal law are addressed to rational, sound minded persons who have the capacity
to understand and comply with the rules.98 In light of section 12 above and section 167 of the
Criminal Procedure Code where a person is found to be of unsound mind or insane the court
may adjudge such a one as not guilty by reason of insanity.
Note: persons who are found to lack the capacity to understand and comply with the rules may
be dealt with in accordance with the rules laid down in the Penal Code,99 the Criminal
Procedure Code100 and the Mental Disorder Act.101 Such a verdict entails that the person
concerned maybe detained and confined in a mental institution, prison or other place102 during
the Presidents pleasure, until the president authorizes a discharge.103

96
State v. Silvers (1989) 323 N.C. 646, 655, 374 S.E.2d 858, 864
97
Section 11 of the Penal Code CAP 87 of the Laws of Zambia
98
Kulusika, S.E., Criminal Law in Zambia Cases and Materials, supra note 56 at p. 200
99
Sections 11, and 12
100
See Relevant sections
101
CAP 305 of the Laws of Zambia.
102
Section 163 of the Criminal Procedure Code.
103
Ibid, sections 162,163 and 164.
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Insanity as a defense is governed by the principles laid in McNaghten’s104 case. In the said
case Mr. M’Naghten who was suffering extreme paranoia believed the United Kingdom Tory
party was persecuting him. He wanted to shoot and kill Prime Minister Sir Robert Peel, but
shot Peel's secretary in the back instead. He was consequently tried for murder. The prosecution
team argued that the defendant was liable for his actions notwithstanding the purported
insanity. In response, the defense team raised the defense of insanity and argued that the
accused could not be criminally liable as he suffered a disease of the mind resulting in criminal
insanity. The Court found that the defendant was insane, and instead of prison, put in a mental
hospital. The court held that a person is presumed to be sane and responsible, unless it is shown
that (1) he was laboring under such a defect of reason (2) from disease of the mind (3) as not
to know the nature and quality of the act he was doing, or if he did know it, that he did not
know he was doing what was wrong. They held that the elements above stated must be proven
present on the balance of probabilities.
Therefore, to successful establish a defense on the grounds of insanity it must be clearly shown
that, at the time of committing the act:
a) the accused was laboring under a defect of reason;
b) from disease of the mind,
c) as not to know the nature and quality of the act he was doing,
d) or if he did know it, that he did not know he was doing what was wrong.
Note: The burden of proof shits from the prosecution to the defendant who must show on a
balance of probabilities that at the time of the act or omission he/she was of unsound mind.
a) Disease of the Mind.
The courts have defined disease of the mind differently from the medical definition. In R v
Kemp105 the defendant suffered from arteriosclerosis which causes him to have temporary
black outs. He attacked his wife with a hammer causing her grievous bodily harm. The court
held that a disease of the mind was any disease affecting the ordinary faculties of reason,
memory and understanding including the example of Kemp’s arteriosclerosis. A disease of the
mind can be temporary or permanent, curable or incurable.
In R v Sullivan106 the defendant had an attack of psychomotor epilepsy. Doctors said he
probably kicked and injured the man during the third stage of an attack. The House of Lords

104
(1843) 10 C & F 200
105
R v Kemp (1957) 1 QB 399 [1956] 3 ALL E R 249
106
R v Sullivan (1983) AC 156
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held that epilepsy was a disease of the mind because the defendant’s metal faculties were
impaired to the extent of causing a defect of reason irrelevant of the fact that it was an organic
disease which was sporadic. A malfunction of the mind of a transitory effect caused by the
application to the body of some external factor is not a disease of the mind within the meaning
of MacNaghten Rules. Such malfunctioning, if self-induced, by a failure to take appropriate
precautions will not relieve the accused person from liability and afford him an acquittal.
In R v Quick107 a diabetic suffering from hypoglycaemia injured a person. He pleaded
automatism but was convicted and he appealed. The Court of Appeal allowed the appeal and
held that the blackout was not caused by a disease, but by alcohol and lack of food combined
by insulin. The temporary effect of the application of external factors is not a disease of the
mind and is not insanity. Diabetes is a disease and if it caused a blackout, it could amount to
insanity.
R v. Hennessey108 can be distinguished from R v. Quick because hyperglycemia is caused by
external factors such as alcohol, food or too much insulin, and not by the diabetes itself. In
Hennessey the accused was charged with taking a conveyance without authority and driving
while disqualified. He was diabetic he pleaded automatism that he was in a state of unconscious
automatism as he was hyperglycemic at the time. The judge held that it amounted to insanity.
The Court of Appeal confirmed this holding that hyperglycemia was by an internal condition,
diabetes, a disease of the mind. The stress and anxiety could not be treated as external causative
factors.
b) Defect of Reason
Firstly, it must be established that the accused suffered from a disease of mind and that because
of that it caused a defect of reason. The implication of defect of reason is that the disease of
mind has deprived the accused of exercising the power of ordinary reasoning. It has made the
accused incapable of reasoning in a rational manner. Defect of reason may occur for a brief
period of time and does not need to form an aspect of a person’s character.109 It must be
observed that defect of reason does not cover situations where the accused acts in an absent-
minded way. See Clarke (1972) 1 All ER 219.
c) Nature and Quality of the Act

107
R v Quick (1973) 1 Q B 910
108
R v. Hennessey (1989) 1 WLR 297
109
Kulusika, S.E., Criminal Law in Zambia Cases and Materials, supra note 56 at p. 202
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This should be understood to refer to the physical nature and quality of the actions in question.
The main concern is whether or not the accused appreciated what he/she was physically doing
and the physical results of what he/she was doing. In such instances the accused must be out
of touch with reality. For instance, a peasant farmer who stubs his wife multiple times believing
her to be a wild beast which was attacking him while he was walking in the bush.110
d) Knowledge That the Act Was Wrong
Wrong” in the McNaghten Rules means contrary to law. Where it is shown that the accused
knew that what he was doing was contrary to law then accused is not insane. If the defendant
knew that his act was wrong; by ’wrong’ it is meant legally wrong rather than morally wrong,
then the accused will be found liable. In R v Windle111 the accused gave his wife an overdose
of aspirins which killed her. At the trial evidence was given to show that the wife was certifiably
insane and further that he had communicated this insanity to her husband (although medical
evidence was given that he was suffering from mental illness the issue of transferred insanity
was not decided). However, he had informed the police and stated that “I suppose they will
hang me for this”. The Prosecution used the statement to show that he knew what he was doing
was legally wrong. It is immaterial that he thought his actions morally correct.
Court Procedure
In The People v. Mwaba112 the High Court set out guidelines to be followed whenever a
question of insanity arises. The High Court point out that:
1. Where the question of insanity arises it will be essential for the magistrate to follow the
procedure which is laid out in the Criminal Procedural Act.
2. The first question to be decided is whether the accused was capable of making his
defense at the time he/she appears in court.
3. A second question may arise as to whether the accused was insane at the time of the
commission of the crime. In such situations, section 160 of the Criminal Procedure
Code requires that the Court must inquire into the matter
4. Having complied with the requirements of section 160, the magistrate should make a
finding or determination as regards the second question.
5. If the accused is found capable of making his defense, trail should proceed in ordinary
fashion. However, where the accused is found incapable of making his defense, the

110
Ibid.
111
R v Windle (1952) 2 QB 826
112
The People v. Mwaba (1973) ZR 271 (HC)
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magistrate should follow the procedure set out in section 161 of the Criminal Procedure
Act.
6. What the magistrate should finally do is to be guided by the provisions of section 167
of the Criminal Procedure Code.

5.4 Infancy

The criminal law absolves children from criminal liability for what would otherwise be
criminal acts or omissions. This is in line with the Latin maxim: doli incapax- meaning that
infants have no legal capacity. The defense of infancy (sometimes called nonage) is an
affirmative defence and applies to all crimes including strict liability offences.113 The criminal
law in Zambia sets an age below which no criminal responsibility may apply. The same is set
at eight.
In the case of Zambia, section 14 of the Penal Code sets out the basis of this defense. Section
14 categorically stipulates that:
i. A person under the age of eight (8) years is not criminally responsible for any act or
omission. The law here presumes that a child below the age of eight is incapable of
committing a criminal offense. It follows therefore that where such a child steals
something and brings it home the parents receive and retain the thing may be liable for
receiving and retaining the stolen item, since the actions of the child cannot amount to
stealing or theft.
ii. A person under twelve (12) years is not criminally responsible for any act or omission,
unless the prosecutors prove that the child had capacity to know, at the time of
commission or omission, that they ought not to do the act or make the omission. Here
the law operates under a rebuttable presumption which can only rebutted by clear,
positive proof to the effect that the child knew that his/her act or omission was wrong
either morally or legally. The prosecution must prove this beyond reasonable doubt.114
iii. Lastly, a male child under the age of 12 years is presumed to be incapable of having
carnal knowledge. The implication here is this, a child of twelve years cannot be
convicted of any offence requiring sexual intercourse, such as rape or defilement.115

113
Michael Jefferson, supra note 77 at p. 249
114
Kulusika, S.E., Criminal Law in Zambia Cases and Materials, supra note 56 at p. 199
115
Ibid.
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5.5 Self-Defense

Self-defense is, in general, some reasonable action taken in protection of self. An act taken in
self-defense often is not a crime at all; no punishment will be imposed. To qualify, any
defensive force must be proportionate to the threat.
Section 17 of the Penal Code forms the basis of the defense. Section 17 provides:
“Subject to any other provisions of this Code or any other law for the time being
in force, a person shall not be criminally responsible for the use of force in
repelling an unlawful attack upon his person or property, or the person or
property of any other person, if the means he uses and the degree of force he
employs in doing so are no more than is necessary in the circumstances to repel
the unlawful attack.”
A person who is violently attacked and fears for his life or injury to his person is entitled to
retaliate with force to repel the attack. However, the force used against the aggressor must be
proportionate to the attack. For instance, if Y Slaps Z, Z cannot retaliate with a gun as this is
an example of disproportionate force.116 The right to self defence extends no further than doing
what is necessary to repel attack. However, such decisions are dependent on the situation and
the applicable law, and thus the example situation can in some circumstances be defensible,
generally because of a codified presumption intended to prevent the unjust negation of this
defence by the trier of fact.
In self defence the defendant must be under attack or must believe him/herself to be under
attack. He/she must use necessary and reasonable force in order to repel the attack. He is not
the arbiter as to how much force was reasonable to use in the circumstances. The test of how
much force is reasonable is an objective one for the tribunal of fact to determine.117
In Attorney General’s Reference No. 2 of 1983180118 the court averred that self defence is
footed on the idea of immanency or immediacy of unlawful attack from the aggressor. By fact,
this means that the defendant should have been faced with a situation of pressing for time to
the extent that he/she did not have opportunity at all to call for assistance or protection from
the police or any source, just like they had no time to escape the unlawful attack or lock out the
aggressor. Consequently, they had no option save for exertion of reasonable force to save the
situation.

116
See Elisha Malume Tembo v The People (1980) Z R 209; and The People v Njovu (1968) Z R 132
117
R v. Owino (1995) Crim LR 743
118
Attorney General’s Reference No. 2 of 1983180 (1984) QB 456
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Sections 17 coupled with section 18 of the Penal Code permit the use of reasonable force by a
person in order to:
a) defend himself from any criminal attack;
b) defend another person from an attack;
c) protect or defend his property;
d) protect or defend the property of another person; and
e) prevent crime.
Central to this defense is that the accused used necessary and reasonable force in order to repel
the attack either to his/her own person or another person, or is defence of his own property or
the property of another.
In Elisha Malume Tembo v. The People119 in that case There was a disturbance in the
appellant's chicken run and the deceased, a servant from next door went unarmed into the
chicken run to find out the cause. In so doing he presumably frightened away a former intruder
who was the fully dressed man seen running away behind the servant s quarters by the
appellant. Having seen one man run away, the appellant went back to his house and obtained
a pistol which he fired into the air as a warning. When he received no reply to his challenge of
who is there, he walked about forty-five metres towards the chicken run until he saw a dark
figure inside the run at whom he fired.
The trial judge found that the shooting of the deceased was a use of force wholly out of
proportion to the necessities of the situation. He convicted the appellant and sentenced him to
three years' imprisonment with hard labour for manslaughter.
The Court in considering the defence put forward at trial a number of consideration. Whether
the appellant was acting in defence of his property and in so doing whether he used excessive
force; whether the appellant made a mistake of fact in that the deceased or the other man who
run out of the chicken run were both armed to justify the appellant’s use of force. Trial Judge
found that there were no suggestions that the appellant was preventing the commission of a
crime, or was attempting to lawfully arrest the deceased.
The Court espoused that even under such circumstances the use of force needed to be
reasonable. In this particular situation the appellant house and fowl run were situated within
Arakan Barracks, therefore, the appellant could have raised an alarm and help would have
undoubtedly been available in an army camp. There is absence of evidence to suggest that the

119
Elisha Malume Tembo v. The People (1980) ZR 209 Supreme Court
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accused was in danger and if the deceased had been armed, this would have become apparent
after the appellant had fired the warning shot & called out to him. If appellant thought that the
deceased wanted to run away with his fowls, then the appellant could have at least warned him
that he was going to open fire, however, had the deceased not stopped even then the shoot
would still not have been justified.
Conversely, in R v Mudewa120 the deceased visited a woman, who said she was expecting
another man and she asked deceased to leave. The accused came later and the deceased struck
accused with heavy blow, the accused fell down and a lean-to-door fell on him with deceased
on top of him. As a businessman the accused usually carried gun. He got the gun from his
pocket fired once in attempt to frighten his assailant and then when attack was renewed fired
again. Trial Court found that the deceased died as a result of bullet wound inflicted by the
accused. The prosecution contended that he (the accused) had not retreated and to fire a gun
was use of excessive force. It was observed that the test is objective one of reasonable reaction
taken in the heat of the moment of unexpected anguish. (Ct.) Cullinnan AG. J found that
prosecution had not negated the defence of self defence. To retreat is only an element on which
reasonableness of accused demeanor is to be judged. He must demonstrate that he does not
want to fight. In a murderous assault it is too much to expect the niceties in the method one
chooses to defend himself. Immediate peril/danger calls for immediate defensive action by
some instant reaction.
Evidently, the use of reasonable force is a question of fact and not law. It is therefore for the
jury or judge (as a tribunal of fact) to decide. The tribunal of fact will take into account the
urgency of the situation, the ferocity of the attack; any other means open to him to defend
himself such as retreating instead of using force and whether the accused’s defence had
continued or the attack had stopped or the threat of attack had faded.
What must now be ascertained is the meaning to be attached to the word necessary. According
to Kulusika ‘necessity’ means that the force used was not avoidable as a lesser violence or no
violence would not have been adequate to defend oneself or prevent crime.121

5.6 Consent

Consent is a defence in criminal law if the victim indeed gave informed consent to be subjected
to certain treatment that eventually results in their injury. As a defence, consent operates to

120
R v Mudewa (1973) ZR 147
121
Kulusika, S.E., Criminal Law in Zambia Cases and Materials, supra note 56 at p. 244
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defeat the actus reus of a particular offence; rendering the action lawful as oppose to unlawful.
For example, the offence of battery is committed where a defendant applies unlawful physical
force on the complainant even as simple as a mere touch on their body. It is unlawful force
because the victim has not consented to be touched. If the victim, however, consents to being
touched, the application of force becomes lawful.
The scope of this defence is in two folds namely that first, it does not apply to all crimes.
Principally, the defence of consent applies only to non-fatal offences and sexual offences such
as rape. It can never be pleaded in heinous felonies like murder. In Attorney General’s
Reference No 6 of 1980122 the Court of Appeals espoused that it is generally in the public
interest that consent is dismissed as a defence is grievous crimes like murder.
Secondly, by operation, this defence concerns itself with negating the actus reus of the alleged
offence and not ordinarily the mens rea thereof. However, the defence may also be invoked
from the point of mens rea in exceptional cases where the defendant's belief in consent is
apparent. In such cases, the mens rea element is not concerned with whether or not the victim
in fact consented, but whether the defendant honestly believed the victim consented. Here the
requirement is honest belief and not necessarily reasonable belief as held in DPP v Morgan.123
There are three major elements requisite to the defence of consent namely that consent must
be: (i) genuine; (ii) positive; and (iii) accompanied/given with full mental capacity. Genuine in
the sense that it is not fraudulently or maliciously obtained while positive in the sense that it is
not a matter of the victim not objecting or saying no. Lastly, it must be given with full mental
capacity in the sense that it is not given by a minor (doli incapax)124 or a person of unsound
mind (non- compos mentis) at the material time of consenting.
It must be observed that public policy demands that people should not harm each other for no
good reason. In R v Brown125 Anthony Brown and others were homosexuals who willingly
engaged in sado-masochistic violence against one another, in rooms laid out as torture
chambers. Activities included genital torture such as nailing scrotum to a board, use of a blow
lamp and bloody shaving of pubic hair among others. The acts conducted in private were
discovered accidentally by the police. On prosecution, all the participant raised the defence of
consent, resulting in the legal issues to be resolved being whether or not such consent was
legally valid.

122
Attorney General’s Reference No 6 of 1980 (1981) QB 715
123
DPP v Morgan (1976) AC 182
124
Burrell v Harmer [1967] Crim LR 169
125
R v Brown (1993) 2 All ER 75
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The Court found that the defendants’ committed sado-masochistic acts, which are sexual acts,
or acts designed to produce sexual gratification, leading to some injury or harm. Their
convictions were upheld by the House of Lords, with Lord Templeman stating that such
activities glorify cruelty and were unpredictably dangerous. His Lordship said ‘Society is
entitled and bound to protect itself against a cult of violence.” Lord Jauncey said it was not in
the public interest to hold that the deliberate infliction of Assault occasioning Grievous Bodily
Harm during sado-masochistic activities was, even with “consent”, lawful. Thus there could be
no valid consent.
Therefore, consent is limited for what is regarded as unacceptable purposes. For instance, in
circumstances where one consents to causing their own death. In such cases consent would be
considered to be invalid and criminal liability will be imposed under section 236 Penal Code.
In Pretty v DPP126 it was noted that consenting to one’s own death (euthanasia) is unlawful
just as it is criminal (murder or aiding) for one to deliberately help another person commit
suicide. Additionally, as pointed out earlier in specific cases such as infancy, mental incapacity
and duress this defence will be rendered invalid.
However, in R v. Wilson127 a husband who branded his initials on the wife’s buttocks at her
request using a hot knife was held not guilty of assault of causing actual bodily harm. This
appears to be an exception to the general rule. In addition, participation in sports which have a
high risk of injury or death such as rugby or boxing is an exception.

5.7 Mistake of Facts

For this defence to succeed the accused must show that he/she acted or omitted to act under an
honest and reasonable but mistaken belief in the existence of the state of affairs. The mistake
must be of fact not law. It must be an honest belief and it must be reasonable and on the
existence of the facts as he saw them it would not amount to a crime. See section 7 of the Penal
Code.
For the defence of mistake/ignorance of facts to succeed it must be capable of negating the
requisite mens rea for the offence in question. That is to say, the defendant must be mistaken
about a material element of the offence by believing the fact to be what they actually are not.
For example, Y carries a Gucci designer leather bag from the train as he alights therefrom; and
it is later discovered that the bag belong to Z. If Y can demonstrate that he had a similar bag

126
Pretty v DPP (2001) UKHL 61
127
R v. Wilson (1996) 3 WLR 125
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aboard the train for which mistook Z’s bag, a charge of theft will fail because the mistake of
fact has negated the requisite mens rea for theft.
In Mutambo & Five Others v The People128 6 appellants appealed against their conviction
for murder. The issue whether the D could rely on the defence of mistake which was then under
sec 11 Penal Code. The Court considered the meaning of ‘reasonable’ and the criteria that
would be used is that of ‘an average member of society, his knowledge, belief & share of
imperfections of human nature will permit, as acting in accordance with reason & his self-
control’. In application of the criteria, the concluded that appellants could not have acted under
a reasonable mistake. It was not reasonable in order to avoid an unlawful arrest by a known
officer of law, for a private citizen to use such force against the officer as to cause death.
Suppose the villagers had believed that the police had come to attack them & forcible expel
them from their village as a result of them having primitive minds. This belief could not be
held to as having reasonable basis. Appeal was dismissed- guilty as charged.
Mistake of fact is not unlimited but a qualified defence. Remember, the mistake must be
reasonable and must be a mistake of fact not law.

5.8 Ignorance of the Law

According to section 7 of the Penal Code reads:

“Ignorance of the law does not afford any excuse for any act or omission which
would otherwise constitute an offence unless know-ledge of the law by the
offender is expressly declared to be an element of the offence.”

The criminal law presumes all men are to know the law of their country and of other
jurisdictions. Thus, it is a presumed that one is aware of what conducts are prohibited. The
general rule is that ignorance of the law is no defence and is expressed by the Latin maxim
“ignorantia juris quod quisque scire tenetur non excusant”, which translates, ignorance of the
fact excuses, but ignorance of the law does not excuse. It has been argued that if it were to be
an excuse no one will be convicted.
In Bilbie v Lumley129 it was held that everyman must be taken to be cognizance of the law;
otherwise there is no knowing to what extent the excuse of ignorance might be carried. It would
be argued in almost every case. In R v Bailey130 a sailor was charged and convicted of

128
Mutambo & Five Others v. The People (Crt of Appeal of Zambia,1965)
129
Bilbie v Lumley (1802) 2 East 469
130
R v Bailey (1800) Russ & N 1
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contravening an act of Parliament enacted while he was away at sea. He pleaded ignorance of
the law but his defence failed. Bailey was found guilty of contravening the law enacted while
he was at sea.
An exception to this rule is when the law makes knowledge an element of the offence. For
example, if the statute states that: ‘Any person who knowingly…’

5.9 Intoxication

Intoxication is a state of fairs that arises out of the consumption of either alcohol or other drugs
or a combination of the two. Intoxication as a defence negatives intent to commit a crime. In
murder if the intent to kill anyone is not there the killing becomes manslaughter. It is an
objective standard as the accused is acting below a reasonable man standard and the offence of
murder is reduced to manslaughter. Intoxication therefore negatives mens rea.
The parts of section 13 of the Penal Code131 which define and explain the defence of
intoxication are subsections (1), (2), (3) and (4). In The People v. Kufekisa132 these provisions
were summarized as follows:
“It is to be observed that this section provides basically that intoxication is no
defence to a criminal charge except in two prescribed events. The first of these
events is where the effect of intoxication is such that the accused did not know
what he was doing, or did not know that what he was doing was wrong. This
event is subject to the proviso that either the accused's state of intoxication was
not self-induced, or that the effect of it was so great as to render the accused
insane, temporarily or otherwise.”

Under Subsection (3) of section 13 when the defence is established on the ground that the
accused did not know that such act or omission was wrong or did not know what he was doing,
then (a) the accused person shall be discharged. However, where (b) the person charged was
by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission
the provisions of section 167of the Criminal Procedure Code relating to insanity shall apply.
Note: The burden of proof rests on the prosecution in Katundu v The People133 Blagden, CJ.:
said where there is evidence of intoxication, whether it is raised as defence or not, it is the duty
of the court to examine and evaluate that evidence and not the accused to prove that he was not
intoxicated or not so intoxicated to form the necessary intent.

131
Cap 87 of the Laws of Zambia (No. 10 of 1935 as amended by No. 3 of 1936) Cap. 88
132
The People v. Kufekisa (1975) Z.R. 188 (H.C.)
133
Katundu v The People (1967) Z.R. 181 (C.A.)
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Intoxication must be understood in terms of its constitute parts which are: voluntary
intoxication and Involuntary intoxication.
a) Voluntary Intoxication

Where an accused consumes intoxicating drugs and it is shown that he/she voluntarily
consumed the same, he/she will be adjudged responsible for his actions. On purely practical
grounds it would be irresponsible to allow the voluntary consumption of alcohol to operate as
an excuse from criminal liability. Lord Birkenhead in L.C. in DPP v Beard134 observed that:
“that voluntary drunkenness must be considered rather an aggravation than a
defence, …a man who by his own voluntary act debauches and destroys his will
power, shall be no better situated in regard to criminal acts than a sober man.”
For instance, in A-G for Northern Ireland v Gallagher135 the respondent was convicted of
the murder of his wife. His defence was that at the time of the commission of the crime he was
by reason of drink incapable of forming the intent required in murder. The respondent had
indicated an intention of killing his wife before taking the alcohol. Lord Denning in delivering
judgment stated as follows:
“… if a man, whilst sane and sober, forms an intention to kill and makes
preparation for it, knowing it is not the right thing to do, and then gets himself
drunk so as to give himself Dutch courage to do the killing, and whilst drunk
carries out his intention, he cannot rely on the self-induced drunkenness as a
defence to a charge of murder, nor even as reducing it to manslaughter.”

Similarly, in Kaluluka Musole v. The People136 the appellant was convicted of murdering a
man whom he found having a sexual relationship with his divorced wife. The appellant pleaded
in his defence that he was so intoxicated that he could not have formed the intention to commit
murder. It was held that the fact that he told his ex-wife that he wanted to kill a jackal and that
immediately after killing the deceased, he went round shouting about his act, left the court with
no doubt that when he struck the deceased he had the intention of killing him.
Note: voluntary intoxication can be a defence to crimes that require proof of intention (such as
murder) & it cannot be a defence to crimes that require basic intent such as manslaughter. See
DPP v Majewski (1976).
b) Involuntary Intoxication

134
DPP v Beard (1920) AC 479
135
A-G for Northern Ireland v Gallagher (1963) AC 349
136
Kaluluka Musole v. The People (1963-1964) Z. and N.R.L.R. 173 (C.A.)
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Involuntary Intoxication applies where it is not the defendant’s fault that he/she is drunk. For
example, where the defendants drink is laced with drugs and the defendant is so drunk that his
control mechanisms are removed such that his actions become involuntary and he/she commits
a crime because of the actions of others.137 In Ross v HM Advocate,138 on the day of the
attempted murder the defendant had been drinking lager from a can he did not know that five
or six tablets of temazepam and a quantity of LSD had been squeezed into the can. The
defendant drank the lager. Shortly afterwards the defendant started lunging about with a knife
and screaming. He injured a number of people who were strangers to him. On a charge of
attempted murder, the defendant said he had no self-control and therefore no mens rea. His
appeal was allowed and it was stated that he should be acquitted because his lack of self-control
was not self-inflicted.

5.10 Duress

Duress is a defence at law if the accused person was inevitably forced into committing an
offence. A person can be said to be under duress when he/she acts or omits to do an act under
inducement or threat of impending danger to his/her life or health, that he/she believes will be
carried out, exerted on them by another person. A person acting under duress does not have the
mens rea. Duress or compulsion, as it is sometimes called, can be a defence only where there
is a threat to life and in such circumstances a person may be excused according to the
circumstances since the person is merely acting as a medium through which another person
executes his intention. Section 16 of the Penal Code which provides for duress requires that:
a) There must be a threat of death or grievous injury made to the accused;
b) The accused believes the threat of bodily harm was to be carried out
i. Immediately without delay; and
ii. Sooner than he could have any real opportunity to seek official protection; and
c) There was no chance to avoid or prevent the harm threatened.
For the defence of duress to operate the following conditions have to exist:
a) There must be two all more offenders;
b) Duress must consist of threats of instant death or grievous harm to the defendant;
c) The threats must continue throughout the whole period of the offence; and
d) Threats of future injury are irrelevant.

137
R v. Bailey (1983) 2 All ER 503, (1983)1 WLR 760
138
Ross v HM Advocate (1991) SLT 564
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In R v. Tylor139 Derman stated that “no man from fear of consequences to himself has a right
to make himself a party to committing a mischief on mankind”. Thus, for it to be a defence a
person must be acting under duress. This defence is not available to a soldier or a police officer
under lawful military and police orders or command to kill. See The People v. Shamwana
[1982] ZLR 183

5.11 Superior Orders

This is not a defence in our laws as no man can license another to commit a crime. Abbott v
R140 Lord Salmon bolstered his conclusion by reference to war criminals: they were not
allowed to rely on duress or superior orders even though they might or would be shot if they
disobeyed. Additionally, in Keighley v Bell141 Wiles J said in his obiter that: “the better opinion
is that an officer or soldier acting under the orders of his superior not being necessarily or
manifestly illegal would be justified by his order.

5.12 Necessity

An overarching theory of criminal defenses is the doctrine of necessity. Generally, a criminal

act can be justifiable if it is necessary to prevent a foreseeable and greater harm than the harm
created by the act. For instance, trespassing is generally justified if the defendant only
trespassed in order to, for instance, instantaneously attempt to put out a fire on the property, or
to rescue someone drowning in a pool on the property. Clearly, the destruction or death caused
by following the law and not trespassing would have been far greater than the harm caused by
trespassing. Similarly, most laws forbidding the discharge of firearms in public contain an
exception for emergency or defensive use.
Necessity as a defence can only operate in circumstances where a person is faced with
alternative of committing a crime or allowing a greater evil to occur and he chooses to commit
the crime. Necessity forms the basis of the defences of duress and self defence. In such
circumstances there is a situation which gives no way out and the only way out will be to do
what will plainly be a crime.
Greater evil in this case can be grater evil being a more serious crime or greater evil not being
a crime but greater suffering than if the crime had not been committed.

139
R v. Tylor (1838) 8 C & P 616
140
Abbott v R (1977) AC 755
141
Keighley v Bell (1866) 4 F & F 763
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a) The greater evil being a more serious crime

In R. v Vantandilo142 a mother carried a child suffering from a contagious disease. She was
convicted of exposing an infected person in a public place. However, Ellen Bourough J., stated
obiter that if she had been trying to procure treatment for the child they would have accepted
it as a defence than if the mother made no effort at all to save the child and it had died she
might have been liable for manslaughter; the greater evil being the crime of manslaughter.
b) A greater evil not being a crime.
An act or omission which amounts to a crime cannot normally be justified by necessity, for a
particular act is never necessary in the sense that there is no alternative. Even if the only
alternative is death, this does not justify crime.
In R v Dudley and Stephens143 four people three men and a boy were shipwrecked at sea had
no food. After 18 days without food and water the two accused suggested to the third man that
they kill youngest the boy. The third man declined to fall into their plan. Two days later the
two accused killed the boy and ate his body. Four days later they were rescued. After they
were rescued they were charged and tried for murder. They pleaded the defence of necessity.
The defence of necessity failed. Then what mitigated the severity of the punishment that was
reduced to 6 months’ imprisonment. There was no appreciable chance of saving life except by
killing thereby giving the conclusion that the killing of one was necessary to preserve the lives
of the three. It was on this basis that the sentence was reduced to 6 months.

5.13 Claim of Right

Section 8 of the Penal Code CAP 87 provides that:

“A person is not criminally responsible of an offence relating to property, if the
act done or omitted to be done by him was in the exercise of an honest claim of
right and without intention to defraud.”

This defence only relates to crimes involving property. It is usually applied in cases of theft.
There must be bona fide belief held in good faith. He must have belief that he had a right to do
as he did not a belief that his act is no crime.
Thus the act must be done with:
a) an honest claim of right; and
b) with no intention to defraud.

142
R. v Vantandilo (1815) 4 M & S 13
143
R v Dudley and Stephens (1884) 14 Q B D 273
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In R v Malamula144 two people, accused and the complainant were involved. Accused owned
an oxcart which he hired to the complainant at a fee. When complainant brought back the oxcart
he paid the hire fee, but a pump was missing from the oxcart. Accused demanded compensation
which was not forth coming so he went to complainant’s house and collected a bicycle
belonging to the complainant. He was convicted of theft and the High Court quashed the
conviction for the reason that the public prosecutor had failed to negative the accused’s defence
of claim of right to keep the bicycle to enforce payment.
In Matiya Mwachilama v The People 145 the accused was convicted of stock theft in the High
Court after he had kept cattle that had strayed on to his land and eaten his crops. He believed
that he had right to keep them as he could not find the owner and he had lost his maize. In
allowing the appeal the Court stated that the defense of bonafide; that he detained cattle in
order to be compensated for his crops that were eaten.

5.14 Provocation

Provocation is, at law, classified in this class alone and deals with provocative conduct, actual
loss of self-control measured employing the objective reasonableness test. Provocation has
been broadly defined as Conduct by which one induces another to do a particular deed; the act
of inducing rage, anger, or resentment in another person that may cause that person to engage
in an illegal act.
The defence of provocation is a partial and limited defence and available only in murder cases.
The effect of a successful establishment of the defence results in the reduction of the offence
of murder to manslaughter. In order to succeed, the accused needs to show that as a result of
the provocation there was sudden and temporary loss of self-control so that he was not in charge
of his full mental faculties.
Section 206 of the Penal Code defines provocation. In terms of section 206 provocation is
defined as: the wrongful act or insult; directed to the accused or another in a special relationship
to the accused; as a result, the accused is deprived of self-control and induced to assault the
deceased. The defence of provocation is only available to murder, not to any other charge,
although it may mitigate sentence. The accused meant to kill. Murder is reduced to voluntary
manslaughter by statute under section 205.

144
R v Malamula (1962) R & N 553
145
Matiya Mwachilama v The People C.A.Z. Appeal No. 61 of 1972
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Provocation, where pleaded successfully, operates to reduce murder to manslaughter. The

essence of provocation is that the accused person kills another in the heat of passion before
there is time for the passion to cool. First there should be sudden provocation and no time to
cool. Second, there must be reasonable retaliation. There is momentary loss of self-control and
the test applied by the courts in Zambia is that of an ordinary person in the accused person’s
community. It is not for the accused to establish provocation as a defence. If there is any
evidence of provocation, the court cannot convict of murder unless it is satisfied that the
prosecution has proved beyond all reasonable doubt because either that there was no
provocation as defined in the code, or if there was provocation, that what was done in the
assault could not be regarded as what an ordinary person of the community to which the
accused belonged, who had lost self-control, might have done on the provocation given. See
the case of Chibeka v. R (1959) 1 R & N 476.
From the definition of provocation above the following elements maybe adduced:
a) Killing in the heat of passion and without time to cool;
b) The provocation must be sudden;
a) wrongful act or insult
There must be a wrongful act or insult. This refers to provocative conduct (see section 206(1)
of the Penal Code). In terms of the above section as read with its sub-section 2, the provocative
conduct may either be directed to the accused person or to any person related to the accused in
his presence. The wrongful conduct must be sudden and must cause actual loss of self-control
in the accused person. The test to be applied is an entirely subjective one. The requirement of
loss of self-control entails that the accused person must suddenly and temporarily lose his self-
control, rendering him subject to intense passion as to make him at that moment not master of
his mind. Mere loss of temper will not suffice; and those who easily get annoyed by the slightest
oversight are excluded. The imperative thing is that the accused person was unable to restrain
himself from doing what he did. Thus, a carefully planned revenge against an aggressor after
lapse of considerable time from the time of the provocative conduct negatives the defence of
provocation.146
b) Loss of Self-control by Ordinary Person

146
See R v. Ahluwalia (1993) 96 Cr. App. 133; (1992) 4 ALL E. R. 889
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It is necessary not only to show that the accused person lost his self-control but also that an
ordinary person in the accused person’s community would have lost his self-control in the
circumstances. The test applied is an objective one under section 206 (1) of the Penal Code
where “an ordinary person” is defined as an ordinary person of the community to which the
accused belongs.
This concept of the ordinary person under the Penal Code encompasses the diverse
backgrounds of the people of Zambia (see Ndulo: 1994). Therefore, local traditions, beliefs
and conditions can be taken into account in assessing the reaction of the ordinary person to the
particular situation. It is for the above reason wider than the English law concept of the
reasonable man. The situation in which accused lives gives a subjective test and objective test
of a reasonable man in that community; thus a different reasonable man in a different
community. The assault must have been in reasonable retaliation is tested to the reasonable
man in that community. See James Chibangu v. The People (1978) ZR 37 and Nyambe
Mubukwanu Liyambi v. The People (1978) ZR 25.
c) Reasonable Relationship Between Retaliation and Provocation

The Penal Code does not define this concept. However, it means that the act which caused
death must have borne a reasonable relationship to the provocation. The retaliation must not be
excessive. Thus a man who killed his former mistress by inflicting four blows on her head with
a panga on the ground that she slapped him and spat at him when he suspected her of having
made off with a considerable sum of money was convicted of murder as his mode of resentment
was out of all proportion with to the provocation147
In the case of Simutende v The People148, Simutende had been burgled and he lost part of his
clothes. He met a man very smartly dressed in his clothes. He hit him with an axe. The issue
was whether a man wearing his clothes was sufficient provocation to murder. The court found
that it was not reasonable retaliation to the provocation so there was no reasonable relationship
to the provocation.
In Milambo v The People149 the appellant a soldier was found naked under woman’s bed. A
relative of the woman beat him, he fled, swam naked across Zambezi River but he was followed
and brought back. The beating continued, one in the crowd had a panga, so accused was very

147
R v. Obiero 16 EACA 139
148
Simutende v The People (1975) Z R 294
149
Milambo v The People (1977) 10 Zam. L.J. 95
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frightened, he developed rage, which made him take an army gun from vehicle and fired into
the crowd killing the deceased. The Court held that the mode of retaliation was not out of
proportion and self defence murder reduced to manslaughter.

5.15 Diminished Responsibility

Diminished responsibility is a defence introduced by section 12A of the Penal Code. A

successful defence of diminished responsibility does not lead to an acquittal it reduces murder
to manslaughter. If the offence is another than murder, the defence of diminished responsibility
will not be available. Any matter that would fall under the ambit of section 12A becomes a
matter of mitigation and not a defence.
This defence is intended to provide a defence for mental disorder offenders who could not be
dealt with under section 12(insanity). It applies where Y kills with the mens rea of murder and
it serves only as a mitigating factor. It must be observed that the defence has the burden of
proof to prove the defence on a balance of probabilities.
In order for this defence to be successful three elements must be proved and these are as
follows:
i. The accused must have been suffering from an abnormality of mind;
ii. This must be because of one of the reasons enclosed within the brackets of subsection
(1) of section 12 of the Penal Code; and
iii. Any one of those causes or conditions has substantially impaired his mental
responsibility.
a) Abnormality of mind
What constitutes abnormality of mind is not clear but the statement of Lord Packer, C.J in R v
Byrne150 could be considered as a reasonable definitive statement. He described it in the
following terms:
“abnormality of the mind … means a state of mind so different from that of an
ordinary human being that the reasonable man would term it abnormal…and
that it is wide enough to cover the mind activities in all its aspects including the
ability to exercise will power to control physical acts.”

b) Caused by arrested, retarded or disease

150
R v Byrne (1960) 3 ALL ER 567
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This must emanate from one of the conditions or causes mentioned in subsection (1) of 12A.
In order to establish that the abnormality of mind of the accused was due to any one of the
causes referred to, medical evidence is needed. This requirement is important because it limits
the scope of the defence of diminished responsibility.
iv. Substantial Impairment of Responsibility
The understanding of the phrase ‘substantial impairment of responsibility’ appears to suggest
that at least two requirements must be satisfied: (i) that the abnormality of mind had a
substantial effect on the accused’s capacity of judgement, understanding, or control, and (ii)
such condition reduces, in a substantial way, the accused’s responsibility with the result that
the accused’s criminal liability is reduced. What constitutes substantial impairment is a matter
of fact which must be proved in court. As it was said in R v. Llyod151 for the impairment of an
accused’s mental faculties, that impairment must be more than trivial or minimal.
Whether it is a question of abnormality of mind or extent of substantial impairment, medical
evidence is required in support of the defence pleaded. The defence of diminished
responsibility must be pleaded by the defence and supported by them to the satisfaction of the
court. Where it is not raised, the judge may alert the defence to avail themselves to it.

5.16 Activity

QUESTIONS FOR DISCUSSION

1. Read the case of Kalinda v The People (1966) ZR 29 and write down a legal opinion
of 2 pages on whether the confession of adultery coupled with antecedent history
would support a defence of provocation to murder.
2. Should superior orders form part and parcel of circumstantial defences? Explain.
3. Distinguish “abnormality of mind” from “defect of reason.”
4. (2) Explain whether legal duty and office immunity should be considered as
defences.
5. (3) How do partial defences differ from absolute defences?

151
R v. Llyod (1967) 1 All ER 107
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UNIT SIX

PERLIMINARY OFFENCES

6.1 Objectives

The main objective of this section is to introduce the student to the study of
preliminary/inchoate offences.

6.2 Introduction

As noted earlier to plan and scheme in one's mind to commit an offence is not, in itself,
unlawful. Where, however, a person takes steps towards effecting that plan to commit a
substantive offence, he may in the process commit one of the preliminary/inchoate crimes of
conspiracy or attempt. The law would be seriously deficient as a means of protecting persons
or property from harm if it could only intervene after a substantive offence had been committed
and the harm done. Therefore, preliminary/inchoate offences permit intervention at an earlier
stage before any harm has been done but at a time when the accused has moved from mere
mental planning to the stage of performing overt acts which manifest his intention that a
particular substantive offence be committed. 'Inchoate' means 'just begun or undeveloped'. This
accurately reflects the nature of the crimes of conspiracy and attempt as they are committed
when the accused begins to manifest his criminal intention…152
Preliminary offences, otherwise known as inchoate offences, are “committed by doing an act
with the purpose of effecting some other offences.153 It is committed when the defendant takes
certain steps towards the commission of a crime. Unlike liability for secondary participation in
a crime, it is unnecessary that the main offence be committed. In some cases, the commission
of the actual offence may even be impossible.
There are three main inchoate offences namely: Attempt, conspiracy and
incitement/solicitation. However, the focus here shall be on the former two. Note that the
nature, the elements and the requisite steps that need to be taken vary with each inchoate
offence as will be seen hereunder.

152
Michael Allen, supra note 2 at p. 251
153
G. Williams, Textbook of Criminal Law (4th edn) (London, Sweet & Maxwell: 2005)
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6.3 Attempt

The law of attempt penalizes any person for doing something with intent to commit an offence.
The defendant must have tried to commit the offence and should have gotten relatively close
to achieving his/her objective. Therefore, the accused must have taken more than preparatory
steps in committing the full offence. The law of attempt requires proof of the actus reus and
mens rea of the offence charged before liability could be established. The law enables the state
to act before an offence is committed through its enforcement agencies. The essence of the
crime of attempt is that the defendant has failed to commit the actus reus of the full offence
but has the direct and specific intent to commit that full offence.
According to the proximity test as per Lord Diplock in the case of DPP v Stonehouse154 the
defendant must have crossed the ordinary preparation and/or reached a proximate point of no
return. That is to say, the defendant must have reached that part of the series of acts, which if
not interrupted, frustrated, or abandoned, would inevitably result in the commission of the
intended offence.
In Zambia, attempt as an offence is provided for under section 389 of the Penal Code which
reads:
“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.”

At common law, if the full offence was impossible to commit there would be an absence of
criminal liability. However, section 389(2) & (3) of the Penal Code rules out impossibility as
a defence. The said section establishes three types of impossibilities which do not affect the
criminal liability of the accused. These are:
a) The accused’s fulfilment of his intention is prevented by circumstances independent of
his will; or
b) He desists his own motion; or
c) Circumstances unknown to accused it is impossible to commit the offence.
Read the cases of Chibomba v. The people (1974) ZR 151 SC and Jonathan Phiri v. Queen
(1964) ZR 24.

154
DPP v Stonehouse (1977) 2 All ER 909
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6.4 Conspiracy

Prior to the amendment of Penal Code sections 394 -396 the law on conspiracy was derived
partly from principles of common law. Common law definition of conspiracy is as laid down
in Mulcahy v. R155 the Court defined conspiracy as ‘an agreement by two or more to do an
unlawful act or do a lawful act in an unlawful way.’ Therefore, a conspiracy is an agreement
between two or more people to commit a crime or unlawful act or a lawful act by unlawful
means at some time in the future. In this case the term agreement must be understood as being
an offence. For example, two or more people could agree to murder someone, import heroin
into this country.
In terms of sections 394 of the Penal Code four requirements specified by the law in order to
establish conspiracy;
1. Two or more persons conspiring to commit an offence;
2. Intention to effect the unlawful purpose;
3. Agreement to carry out the unlawful purpose; and
4. Act may be done in any part of the world.
The existence of an agreement is the essential element of actus reus required in the offence of
conspiracy. This may be manifested either orally, in writing or by action. In R v. Scott156 it
was held that the agreement must be communicated to all parties. Additionally, R v. King157 it
was held that a definitive conclusion regarding offence to be committed must be reached.
Further in R v. Siracusa158the court ruled that it is not necessary for all parties to play an active
role in the commission of offence.
In order to establish the offence of conspiracy the criminal law requires that the Y must have
the mens rea required for the offence they intend to commit. For example, for the offence of
murder, they must be the necessary malice aforethought.
In Yip Chiu- Cheung v. The Queen159 D was convicted of Conspiracy to traffic in heroin
contrary to common law & S4 of the Dangerous Drugs Ordinance. The conspiracy concerned
an agreement between D & N (An American undercover drug enforcement agent) that he would
meet D in Hong Kong where he would receive the supply of heroin which N would take to
Australia. D appealed on the basis that his co-conspirator N (who has not been prosecuted) was

155
R v. Mulcahy (1868) LR 3 HL 306
156
R v. Scott (1979) 40 La
157
R v. King (1966)
158
R v. Siracusa (1990) 90 Cr App R 340
159
Yip Chiu- Cheung v. The Queen (1995) 1 AC 111 Privy Council
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an under-cover drugs enforcement agent who had no intention that the crime would be
committed. The appeal was dismissed on the basis that no moral guilt could be attached to the
to an undercover agent who was at all times acting courageously with the motive of bring to
justice a gang of criminal drug dealers. It would be wrong to treat an agent as having any
criminal intent, as there are cases in which enforcement agents pretend to join a conspiracy in
order to gain information about plans of criminals. Though N intended to carry the drugs across
he never expected to be prosecuted if the plan had been carried out as planned.

6.5 Activity

QUESTIONS FOR DISCUSSION

1. What are preliminary offences?
2. Define attempt and conspiracy?
3. What is the mens rea for attempt and conspiracy?
4. In Zambia is abandonment is a valid defence to the offence of attempt?
5. All preliminary/ inchoate should be abolished on the theory that society is not
harmed until a crime is completed. Critically, evaluate the weakness of this
proposition.
6. To secure a conviction on attempt what must the prosecution prove?

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UNIT SEVEN

OFFENCES AGAINST THE PERSON

7.1 Objectives

By the end of this unit you should be able to:

i. Identify the basic elements of the various offences examined under this section;
ii. Distinguish between non- fatal and fatal offences against the person; and
iii. Distinguish between assault and battery.

7.2 Introduction
The offences dealt with under this section involve violence against the person. These offences
range from offences whose resulting effects maybe death, to those that may result in serious
injuries or lesser harm. These offences are broadly categorized into two species, namely,
fatal offences against the person and non-fatal offences against the person. Murder and
manslaughter are example of fatal offences against the person while causing grievous bodily
harm, unlawful wounding, assault occasioning actual bodily harm, and common assault are
examples of non-fatal offences against the person. This section shall proceed to deal with the
offences examined herein from non-fatal offences against the person to fatal offences against
the person.

7.3 Non-Fatal Offences Against the Person.

7.3.1 Common Assault

This is the least serious of the offences against the person. Section 247 of the Penal Code creates
this offence which is a misdemeanor with a maximum penalty of one year’s imprisonment.
This is one of the offences in which the Subordinate Court is empowered to promote
reconciliation and settlement by amicable means under section 8 of the Criminal Procedure
Code.
The term common assault covers within it is called technical assault and battery. Technical
assault is causing reasonable apprehension of battery. Thus to pick up a stone and throw it at
another or to point an unloaded gun at him provided he does not know that it is unloaded, is an
assault. The actus reus of technical assault is causing the victim to apprehend immediate force
or violence being applied to his person. Physical contact between the accused person and the
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victim is not necessary to prove this assault. The capacity of the accused person to use force
will be taken into account by the courts. The rationale for this appears to be that there can be
no apprehension of immediate personal violence where the accused lacked capacity to
implement his threats. Thus an angry motorist who shakes his fists at another motorist for bad
road manners is not guilty of assault.
The actus reus of assault is any act including words spoken by Y which causes Z to apprehend
immediate & unlawful personal violence. The mens rea consist of an intentional or reckless
that causes another to apprehend the possibility of imminent violence.
On the other hand, battery is committed when some force, however slight, is applied to the
person of another. It must be pointed out though that the application of the force needs not be
direct. Thus hitting someone with a missile or pouring water on him is a battery. When one is
hit unknowingly from behind, there is a battery. The actus reus of battery is the actual
application of unlawful force by the accused person on the victim. It follows that application
of lawful force (as in the case of parental chastisement, self-defense, prevention of crime,
necessity and consent – sports for example) is not battery.
Actus reus of battery is the act of infliction of force or violence on a victim by the defendant.
An unwanted kiss would suffice as a battery.160 Further, spitting on somebody would also
constitute a battery provided that it was not accidental.161 Mens rea of battery is that the
defendant intended or recklessly inflicted unlawful violence (or force) on the victim.

7.3.2 Assault Occasioning Actual Bodily Harm

This is under section 248 of the Penal Code. It is a misdemeanor and the maximum penalty is
five years’ imprisonment. ‘Actual bodily harm’ is not defined in the Penal Code. However, it
must be noted that it includes any harm or injury whether physical or mental calculated to
interfere with the health or comfort of the victim. The harm or injury needs not be permanent
nor need it amount to grievous harm. Whereas this kind of assault includes psychiatric injury,
mere fear or hysteria or emotions of panic or distress do not qualify. Proof of psychiatric injury
is by expert evidence. The actus reus of this offence is an assault which causes or occasions
actual bodily harm.
The following factors are essential:
a) There must be an assault

160
Dungey (1866) 4 F & F 1066, 176 ER 910
161
Smith (1866) F & F 1066, 176 ER 910
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b) Which must then cause actual bodily harm. In R v. Miller162 it was that actual
bodily harm was any hurt or injury which interferes with the health or comfort of
the victim. Injury need neither be major nor trivial.
The mens rea is proof of the mens rea for assault or battery (which we shall consider under the
succeeding head). No mens rea needs be proved in respect of occasioning of harm.
See Kampangila v. The People (1969) ZR 59 (HC)

7.3.3 Grievous Harm

The offence is created by section 229 of the Penal Code and the maximum punishment is seven
years’ imprisonment. Grievous harm is defined in section 4 of the Penal Code. S 229 mentions
‘grievous harm’ as opposed to ‘grievous bodily harm’ the reasoning here is that the term
‘grievous harm’ is broader and includes psychological harm hence the focus is not restricted to
harm caused to body alone.
The actus reus of this offence is basically the doing (inflicting) of grievous harm. The Penal
Code defines grievous harm as “any harm which endangers life or which amounts to a maim
or which seriously or permanently injures health or which is likely so to injure health, or which
extends to permanent disfigurement, or to any permanent or serious injury to any external or
internal organ, member or sense.” Television Chibuye v. The People163 the appellant was
convicted of doing grievous harm and was sentenced to two and a half years imprisonment
with hard labour. The complainant suffered harm to the extent that the appellant butted her
with his head in the face causing her to lose two teeth. The court had to consider whether the
loss of two teeth constituted ‘permanent disfigurement’ such as cosmetically the teeth could be
replaced. On that basis it was held not to constitute a permanent or serious injury to any external
or internal organ membrane or sense as specified in S4 of PC. The court reached the conclusion
based on the fact it was unlikely that the legislature ever intended a strained interpretation to
the term ‘grievous harm.’
Note: In DPP v. Smith164, the House of Lords defined grievous harm as really serious harm.
Such harm includes broken limbs, severe internal injuries, or anything which significantly
disables the victim, whether permanently or temporarily. As stated earlier, psychiatric injury is
also included.

162
R v. Miller (1954) 2 QB 282
163
(Television Chibuye v. The People 1978) ZR 43
164
DPP v. Smith (1961) AC 290
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As regards mens rea the prosecution must prove either intention to do grievous harm or
recklessness. The accused person must be shown to intend some harm, be it physical or
psychiatric, serious or otherwise.

7.3.4 Unlawfully wounding or Poisoning

The offence is created by section 232 of the Penal Code and its maximum penalty is three
years’ imprisonment. This offence covers persons who unlawfully wound, injure, annoy or
cause any poison or other noxious thing to be administered to, or taken by any person. A wound
is defined in section 4 of the Penal Code as “any incision or puncture which divides or pierces
any exterior membrane of the body, and any membrane is exterior for the purpose of this
definition which can be touched without dividing or piercing any other membrane.” Zakalia
v. The People165 the appellant and another were convicted of unlawful wounding. The
allegation was that they had assaulted the complainant with an iron bar. The court had to
consider the question of whether the injuries inflicted amounted to a wounding. Injuries
inflicted with an iron bar were said not to be wounds within the mean of the definition of
wounds which is laid down in section 4 of the Penal Code. On that basis the conviction for
unlawful wounding was set aside & replaced with a conviction of common assault.
From this definition wound above and the holding of the court in Zakalia v. The People it
would appear that a wound can only be caused by some instrument or weapon with a cutting
edge or point. It is also necessary that both the inner and outer skin are broken if a wound as
defined by law is to be suffered. The prosecution needs not prove any assault. It appears also
that intention is of the essence in this offence. The prosecution must prove either that the
accused intended to wound or that he must have realized that some harm might result from his
acts.

7.4 Homicide

Homicide refers to one or more human beings taking the life of another human being in
circumstances not justified or excused by criminal law. However, homicide may be lawful if it
is committed in the execution of or advancement of justice, or in reasonable defence of person
or property, or as a result of an accident or misadventure. There are several offences of unlawful
homicide: murder, manslaughter, infanticide and causing death by dangerous driving. Offence

165
Zakalia v. The People SCZ Judgment No.23 of 1978, See also Ng’mbi v. The People (1975) ZR 97 and Lengwe v.
The People (1976) ZR 127
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under this classification are referred to as fatal offences against the person. This is because the
harm caused is absolute and irremediable as the as the consequences of death are final.
For a death to be classified as homicide, the deceased must die as a result of an unlawful act or
omission causing death within a year and a day (section 209 of the Penal Code); and in the case
of a child, if it is born in a living state (section 208 of the Penal Code). There is no homicide
where a foetus is destroyed in its mother’s womb even though this may be the offence of
abortion.

7.4.1 Murder

Coke CJ in the early seventeenth century defined murder as:

“when a man of sound memory and of the age of discretion unlawfully killeth .
. . any reasonable creature in rerum natura under the King’s peace, with malice
aforethought, either expressed by the party or implied by law, so as the party
wounded or hurt etc., die of the wound or hurt etc.. . .”

The following factors arise from Coke CJ definition of murder:

a) Sound memory and age: this operates to exclude insane persons, persons below the age of
eight and those between the age of 8 & 12 in exceptional circumstances.
b) The phrase ‘any reasonable creature’ means a human being. It is thought that persons born
without heads are protected.
c) ‘In rerum natura’ is translated as ‘in being’. Accordingly, one cannot murder an unborn
person, even if that foetus could have survived had it been born naturally; one can murder
only a child who is born alive and fully extruded from the mother. In terms of section 208
of the Penal Code a child becomes a person capable of being killed when it has completely
proceeded in a living state from the body of its mother.
d) Under the king or queen’s peace: refers to protection of a sovereign state, excludes those
who kill in the military force if operating under duty or kill enemy in an armed conflict that
the sovereign state is involved. (i.e. prisoners of war whether combatant or non-combatant)
However, excludes the killings of rebels or terrorists fighting a government established by
law.
e) Unlawfully killeth: The killing must be unlawful. Here Cokes definition of murder
demonstrates that the sanctity of life. Nonetheless, the killing of a human being in self
defence or prevention of crime accepted.
f) Malice aforethought: the mental element required in murder.

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Murder is defined in section 200 of the Penal Code. It is punishable by a sentence of death or
any other sentence where there are extenuating circumstances as prescribed under section 201
of the Penal Code. In order to establish that murder as occurred the prosecution must prove that
the defendant:
i. Caused death;
ii. By an unlawful act or omission;
iii. With malice aforethought.
Actus Reus
The actus reus of murder therefore is that the accused person caused the death of the deceased
by an unlawful act or omission. Section 207 of the Penal Code defines causing death. Some of
the circumstances when one is deemed to have caused the death of another include inflicting
injury in consequence of which the deceased undergoes surgical or medical treatment which
results in his death it is immaterial that the medical treatment was proper or mistaken; inflicting
an injury which would not have resulted in death if the deceased took proper care of it but due
to careless handling of the injury he dies; actual or threatened violence which causes the
deceased to perform an act resulting in his death.
Mens Rea
The mens rea of murder is malice aforethought. Section 204 of the Penal Code defines this
term. According to the case The People v. Njovu166 as per Chief Justice Blagden ‘malice
aforethought relates to the state of mind of the accused person at the time he caused the death
of the deceased’.. It is important to note that in terms of section 200 of the Penal Code a person
can only be convicted of murder if there is the existence of malice aforethought. The mental
element consists of either:
i. An intention to kill; or
ii. An intention to cause grievous bodily harm
Suffice to note that malice may be express167, implied168 or constructive169. Express malice
describes an intention to kill or to do grievous harm; and provided such an intention is proved,
it is immaterial that the person killed is the one intended or another person. Thus where a
husband gives a poisoned fruit to his wife with the intention of killing her, and the wife gives

166
The People v. Njovu (1968) ZR 132
167
Section 204(a) of the Penal Code.
168
Ibid, section 204(b)
169
Ibid, section 204(c)
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the fruit to the child who dies as a result of eating that fruit, the husband is guilty of murder
(see the case of R v. Kalebaila 2 NRLR 253).
Malice may also be implied as opposed to being express. This is so where a person does an
act causing death, which is intrinsically likely to kill, and which he knows is likely to kill or
cause grievous harm even though there is no evidence of express malice. See Mongola v. R
(1963) R&N 291
The other type of malice is constructive. Here deemed to exist where the accused acts with
intent to commit a felony, or with intent to facilitate the flight or escape from custody of any
person who has committed or who has attempted to commit a felony. There is constructive
malice in these two situations because it is not necessary to prove an intention to kill or to cause
grievous harm (express malice), nor the doing of an act known to be likely to kill or to cause
grievous harm (implied malice). See Chitenge v. The People (1966) ZR 37
In certain situation proof of recklessness is enough to secure a conviction. The accused is said
to be reckless where the accused acts in an unjustified manner whereby acts involves a risk of
a prohibited conduct occurring and it is unreasonable under the circumstances to adopt such a
risk. Recklessness was the subjection of consideration in R v. Caldwell.

7.4.2 Manslaughter

This offence is created by section 199 of the Penal Code and the punishment thereof can be
seen in section 202 of the same. Manslaughter is generally distinguished from murder by the
absence of malice aforethought. Thus it can be said that it is residual offence to murder.
Manslaughter may be committed in a number of ways, however, there are two main types of
manslaughter, namely:
i. voluntary manslaughter: where the accused kills with the mens rea for murder, but is
not guilty of murder by reason of certain extenuating circumstances which the law
deems as reducing his criminal liability to manslaughter involuntary manslaughter.
ii. Involuntary manslaughter on the other hand is where an accused person kills without
malice aforethought.
Provocation and where there is excessive use of force in defence of person or property reduces
murder to manslaughter. Provocation is an example of voluntary manslaughter. In The People
170
v. Njovu A killed with the requisite mens rea for murder but was not guilty of murder

170
The People v. Njovu (1968) ZR 132 (HC)
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because he was provoked to kill. Thus provocation mitigates circumstances so as to reduce

criminal liability to manslaughter. See the defence provocation covered above.
Note: In The People v. Lawrence Mumanga171 it was held that where a man acts recklessly
& causes the death of another, manslaughter is the only reasonable finding.

7.5 Activity

QUESTIONS FOR DISCUSSION

1. What do you understand by the term ‘malice aforethought’?
2. What is the rationale behind the ‘year and a day’ rule in cases of homicide?
3. Does motive and intention mean the same thing?
4. What do you understand by ‘extenuating circumstances?
5. What do you understand by involuntary manslaughter?
6. Can self-induced provocation give rise to a successful plea of the defence of
provocation
7. What is grievous harm?
8. What are the elements of doing grievous harm?
9. The offences of assault and battery are generally called common assault. Explain.
10. Some criminal offences are said to be offences of ‘direct intent’ while others are said
to be offences of ‘basic intent’ Name & discuss one offence of direct intent and one
of basic intent.
11. Manslaughter may be voluntary or involuntary depending on the circumstances
under which the offence is committed.
12. Discuss the major distinction between the two types of manslaughter. Cite one
example of involuntary manslaughter discuss & state the what the decision of the
court was
13. Malice aforethought is a basic requirement for criminal liability in Zambia. Discuss
with reference to decided Zambian cases & statute

171
The People v. Lawrence Mumanga (1985) ZR 35 HC
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UNIT EIGHT

OFFENCES AGAINST MORALITY

8.1 Objectives

By the end of this section the student must be able to:

 Demonstrate an understanding of the nature of the various offences examined under
this heading;
 Understand the elements of each offence; and
 Be acquainted with the statutory provisions that establish each offence.

8.2 Introduction

Offences against morality are basically sexual offences. These include rape, indecent assault
defilement, prostitution, abortion and unnatural offences. It is noted with sadness that sexual
offences are widespread but most of them go unreported. This is attributed to a number of
factors chief of which being cultural inhibitions and the unsympathetic and even hostile
treatment victims fear they will receive from society, the police and the courts. While, indeed,
it is definitely profitable for one to acquaint themselves with the statistics raised above,
however, it is not within the province of the section to delve into the details of factors that
contribute unreported sexual offences. The section is concerned with a discussion of the most
common sexual offences as listed above.

8.3 Rape

In terms of section 132 of the Penal Code any person is guilty of rape who:

(1) Has unlawful carnal knowledge of a woman or girl

(2) (i) Without her consent, or
(ii) With her consent, if the consent is obtained
(a) By force or by means of threats or intimidation of any kind, or by fear of bodily
harm, or
(b) By means of false representations as to the nature of the act, or
(c) In the case of a married woman, by personating her husband.

Actus Rues

The actus rea of rape consists of the following two elements:

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i. There must be carnal knowledge (sexual intercourse) and lack of consent on the part of
the victim. To prove rape, it is necessary to prove penetration or partial penetration by
the penis into the vagina. Therefore, penetration of the vagina using any object other
than the penis is not rape but is indecent assault. Further complete sexual intercourse is
not necessary to prove rape; the critical point is that there must be penetration of the
vagina fully or partially by the penis. However, rubbing against the vagina entrance
does not amount to penetration even if the emission of semen results therefrom; and
there is no rape in such a case but indecent assault should suffice.
ii. There must be an absence of consent at the time of the sexual intercourse. The woman
must show signs of resistance, or intimidation, or threat, or use of force, or fear of harm
if she refuses. It must be noted that medical evidence of sexual intercourse must be
adduced to corroborate the claim of rape (Tembo v. The people (1966) ZR 126 (HC).
There is no real consent if the woman yields to sexual intercourse under physical
coercion or due to fear. Consent obtained by false representations as to the nature of the
act is no consent. Similarly, there is no consent where a man gets into bed with a married
woman who gives him her body under the mistaken belief that the man is her husband.
There is also no consent where a man has or attempts to have sexual intercourse with a
woman while she is asleep and it is no defence that she did not resist.
In R v Yohani Mporokoso172 the complainant claimed the she awoke during the night to find
the appellant on top of her and having sexual connections with her. The appellant was convicted
of rape and appealed. The issue before the High Court of Northern Rhodesia was whether
having sexual intercourse with a woman while the woman was asleep amounted to having
sexual intercourse without her consent. Being asleep she was incapable of resisting. Another
issue was the proof of penetration and medical examination. The first issue was proved and
accepted by the Court, but not the latter two issue. As such the conviction was altered to
attempted rape, and the appeal dismissed.
It appears that rape charges based on personation of a husband are quite restrictive. Given a
literal interpretation an accused person who personates the boyfriend of a woman or girl and
thereby has sexual intercourse with her would escape liability. Therefore, the Courts would do
well, if justice is to be done, to place a wider interpretation on the terms ‘married woman’ and
‘husband’ to include unmarried women with boyfriends. The Court of Appeal in R v.

172
R v Yohani Mporokoso 2 N. R. L. R. 152 (see Ndulo 1983:279
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Elbekkay173 dismissed the appeal where the accused was convicted of rape after he had sexual
intercourse with a lady by impersonating her boyfriend.
It is also interesting to note that under the Zambian law a husband cannot commit rape on his
wife. The rationale appears to be that arising out of her marital obligations, the woman is
deemed to consent to sexual intercourse with her husband provided they not separated by a
Court order or a separation agreement. Whether this position should be maintained in this day
and age is debatable. However, under English law a husband can rape his wife.
It must also be noted that females have the uncontested right to revoke or withdraw her consent
at any time. If the man persists or insists this point on the basis of intention, recklessness or
due to a state of ecstasy the man must be punished for persistence or stubbornness. In R
v.Kaitamaki174 a woman revoked her consent during intercourse, but the man refused to
withdraw. The court held that persisting with sexual intercourse after consent had been
withdrawn is rape. If a man continues after been told to stop and withdraw implies he continues
to penetrate without consent.
Mens Rea

The prosecution must prove that the accused intended to have sexual intercourse without the
victim’s consent, and that he knew the victim was not consenting or was reckless as to whether
she was consenting or not. The case of DPP v. Morgan175 is a leading authority on recklessness
whether the victim is consenting or not. The facts in that case were that a husband invited a
number of friends to have sexual intercourse with his wife in order to avenge her infidelity. He
suggested that she might protest but that they were not to take it seriously as this was her way
of increasing her sexual satisfaction. The men had intercourse with her without her consent.
They were tried and convicted of rape and husband was convicted of aiding and abetting rape.
However, House of Lords ruled that a defendant who honestly believed that victim was
consenting to act of sexual intercourse could not be liable to rape as there would be no mens
rea.
Note: Under the Zambian criminal law system, an accused person can plead the defence of
mistake of fact to a charge of rape based on having carnal knowledge of a woman or girl without
her consent. See the defense of Mistake of facts covered above.

173
R v. Elbekkay (1995) Crim. LR 163
174
R v. Kaitamaki (1985) AC 147
175
DPP v. Morgan (1976) AC 182
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See also Butembo v. The people (1976) ZR 193; Tembo v. The people (1966) ZR 126 (HC);
Mweemba & Another v. The people (1973) ZR 127 and Emmanuel Phiri v. The People
(1982) ZR 77 (SC)

8.4 Indecent Assault

This offense is created by section 137 of the Penal Code. Under the said section any person
who unlawfully and indecently assaults is guilty of felony and is liable to 14 years’
imprisonment. An indecent assault is an assault accompanied by circumstances of indecency.
The accused person must have assaulted the victim; and the assault must be indecent by the
standard of an ordinary, reasonable and right-minded person of the community. It is a general
rule that the assault must have occurred without the consent of the victim. In other words,
consent of the victim to the assault is a defence. However, consent to the assault is no defence
where the victim (a girl) is under the age of twelve years.
Under the Zambian criminal law, particularly, section 137 of the Penal Code, a person who
unlawfully and indecently assaults a woman or girl is guilty of a felony and liable to fourteen
years’ imprisonment. It is also an offence under section 137(3) of the Penal Code to annoy or
indecently insult a woman or a girl; and it is punishable by imprisonment for one year. Further
any person who unlawfully and indecently assaults a boy under the age of fourteen years is
guilty of a felony and liable to imprisonment for seven years. See section 157 of the Penal
Code.
It must be noted that indecent assault on a woman or girl covers a number of activities.
Stipulated activities that would fall under indecent assault of females includes; gazing (looking)
at woman or girl who is undress or semi- dress. Insulting or indecently insulting any woman or
girl with intent to annoy. however, the indecent assault is not restricted to purely sexual
indecency. Thus, a security guard who undressed a woman suspected of having stolen
something from the shop was convicted of indecent assault.
In Mwanza v. The people176 Mwanza was charged with indecent assault contrary to s.137(1)
of Penal Code and sentenced to twelve months’ imprisonment with hard labour. The accused
took the complainant to a fitting room where in the presence of two other people stripped her
naked because he suspected that she had hidden things that she had allegedly stolen. When
nothing was found he apologized. The complainant claimed that the accused had touched her

176
Mwanza v. The people (1979) ZR 154
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breasts and held her waist. The two persons who were present whilst the complainant was been
stripped naked confirmed everything except for the touching of her breast or anywhere else.
The court held that the reason the accused searched suspect was simply to establish whether
she had stolen the goods and nothing more than that. The touching of the private parts was
never corroborated & it was this indecency which had to be corroborated & not the assault.
Every indecency case has to be linked to a sexual invitation. The actual act of undressing the
suspect was not indecent as term needs to have a sexual content. Only indecent thing was
breaking the Zambian custom of searching a female when it was clear that men in Zambia do
not search women and verse versa. On this basis sentence was reduce to twelve months with
hard labour suspended sentence for eight months ….
To make their case and secure a conviction the prosecution must prove that:
i. That the accused had the mens rea for assault (or battery); and
ii. That the accused intended to commit an assault which right-minded people would
consider indecent.

8.5 Defilement

The law governing defilement is set out under section 138 and 139 of the Penal Code. Section
138 creates and prescribes the punishment for defilement of a girl under the age of sixteen
years. Upon conviction the accused may be sentenced to life imprisonment or a term not less
than 15 years. On the other hand, defilement of idiots and imbeciles is covered under section
139. In terms of the latter, it must be appreciated that a man who has sexual intercourse with a
female of the classes stipulated above, with or without her consent, commits an offence.
However, it is encumbered upon the prosecution to prove beyond all reasonable doubt that the
man knew the female to be an idiot or imbecile at the time he committed the offence.
In order to secure a conviction on a charge of defilement of a girl under the age of sixteen years
the following requirements must be met by the prosecution;
i. Unlawful carnal knowledge must have taken place
ii. With child below the age of sixteen.
Interestingly, in Zambia, it is not unlawful for a man to have carnal knowledge of a girl under
the prescribed age if he is lawfully married to her. See R v. Chinjamba 5 NRLR 384 and
Sibande v. The People (1975) ZR 101.
Proof of age is vital to a conviction for defilement; age must be strictly proved. The question
of age is of utmost importance in a charge of this sort. Age may be proved by production of a

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birth certificate or evidence of a person present at birth. It is not sufficient for the magistrate to
rely on his own observation of the girl’s age, nor may he take judicial notice of purely local
events. See Phiri (Macheka) v. The People (1973) ZR 145
As with other sexual offences, it is dangerous to convict for defilement without corroboration.
The magistrate must always direct himself to this danger; and failure to do so will usually result
in the conviction being quashed on appeal. R v. Sabenzu 4 NRLR 45
Note: Until recently, the Penal Code gave a limited defence to a charge of defilement of a girl
under the age of sixteen years if an accused person showed, on a balance of probabilities that
he reasonably believed the girl to be of the prescribed age or more. However, the proviso to
section 138 which availed this defence has been removed from the Penal Code by an
amendment. The effect of the amendment is that the offence is now one of strict liability, that
is to say as long as it is proved that the accused person had unlawful carnal knowledge of a girl
under the prescribed age, the accused must be convicted irrespective of his belief as to the age
of the girl. The other amendment is in respect of the sentence; the minimum sentence prescribed
is fifteen years’ imprisonment.

8.6 Prostitution

This is provided for under section 146 of the Penal Code. The section criminalizes earning a
living either wholly or partly from the proceeds of prostitution and the persistent soliciting or
importuning for immoral purposes in a public place. In the first instance, it is essential for the
prosecution to show that the accused earns her living through prostitution. In the second
instance, the prosecution must show that the accused urged another in a public to commit
immoral activities. The Penal Code does not define the term immoral purposes, however, the
term can be taken to mean purposes that violate accepted principles of right and wrong in
relation to sexual morality. Thus, a contract of prostitution amounts to immoral purposes for
the purposes of this section.
To prove solicitation and importuning it is not required that sexual conduct took place. The
mere agreement of exchanging money for sex is enough. This means that both parties to the
agreement can be charged with prostitution. It is a defence that while sex may have been
discussed, however, it was not contingent on a fee.

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8.7 Abortion

In Zambia, the law against abortion is provided for under section 151 of the Penal Code. Note
that except done in accordance with the provision of section 3 of the Termination of Pregnancy
Act, abortion is a criminal offence and anyone found guilty of the same is liable to a sentence
of up to 7 years in prison. Section 151 of the Penal Code notes that a person who:
“…with intent to procure miscarriage of a woman, whether she is or is not with
child, unlawfully administers to her or causes her to take any poison or other
noxious thing, or uses any force of any kind, or uses any other means whatever.”

Similarly, section 152 of the Penal Code imposes, upon conviction, a sentence of 14 years’
imprisonment on a woman being pregnant who, procures her own miscarriage unlawfully uses
poison or noxious substances. Further, section 153 of the Penal Code makes it an offence to
unlawfully supply to or procure for any person anything intended to be used to procure the
miscarriage of a woman, whether she is or is not with child. This provision is meant serve as
a deterrent to medical staff who supplying drugs or instruments to procure illegal abortions. A
violation of section 153 of the Penal Code attracts a maximum sentence of 14 years’
imprisonment
Following amendments to the Penal Code in 2005, there are now exceptions that allow
abortions where a female child is raped or defiled and becomes pregnant, the pregnancy may
be terminated in accordance with the Termination of Pregnancy Act. The Termination of
Pregnancy Act itself further widens the restrictions placed against abortions. In section 3, it
states that a woman may seek an abortion legally, where such pregnancy would harm the
physical or mental health of herself or her other children or if it would be harmful to the life of
the unborn child.

8.8 Unnatural Offences

This offence is provided for under section 155 of the Penal Code. Section 155 a, b and c read

together provide the following:

“Any person who- has carnal knowledge of any person against the order of
nature; has carnal knowledge of an animal; 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 a term not less than 15 years
and may be liable to imprisonment for life.”
This section criminalizes sexual conduct that is unnatural or undesirable. The term order of
natural of things is not defined by the Penal Code. However, for the purposes of this section it
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is logical to draw the conclusion that sodomy and bestiality are sexual activities that go against
the order of nature. In The People v Nkandu Luo177 ,The accused was committed to the High
Court by the Subordinate court Holden in Kasama in terms of section 217 of the CPC chapter
88 of the Laws of Zambia for sentencing. The accused was convicted following a trial on one
count of attempted sodomy. The particulars of the offence were that Nkandu Luo on 4th July,
2006 at Kasama did attempt to have carnal knowledge of Alex Chimekela against the order of
nature. Following his conviction, the accused was committed to the High Court for sentencing
as the learned magistrate had no jurisdiction to impose the minimum sentence that is prescribed
by the law. In passing judgment, the Judge found that the accused conviction was supported by
evidence before the lower court. He said he was further satisfied that the accused conviction
was correct and properly made and that there was no misdirection or miscarriage of justice on
the part of the magistrate. Therefore, the accused should have been sentenced between 15 years
being the minimum sentence of the offence and life imprisonment being the maximum. I wish
to say that I support the sentence because the vice is a bad one. God created us man and woman
so it is regrettable that people resort to such vices.

8.9 Activity

QUESTIONS FOR DISCUSSION

1. What do you think are the major causes of rape?

2. What does the prosecution need to prove in rape?

3. What are the possible defences to a charge of rape?

4. Can a man be prosecuted for rape if he has sexual intercourse with his wife without

her consent?

5. On a charge of rape based on absence of consent on the part of the victim, can an

accused person successfully raise the defence of mistake?

6. On a charge of rape based on Personation of husband, can the prosecution secure

a conviction if the man personated is a boyfriend?

7. Can a woman indecently assault another woman?

177
The People v Nkandu Luo HWS/32/2006
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8. What are the elements of indecent assault?

9. Is a man or a boy aged sixteen years or above capable of being indecently assaulted?

UNIT 9: OFFENCES RELATING TO MARRIAGE AND DOMESTIC OBLIGATION

9.1 Objectives

By the end of this section the student must be able to:

 Understand the nature and elements of the offences examined under this heading; and
 Identify the statutory provisions that establish each offence discussed herein.

9.2 Introduction
This sections covers offences relating to marriage and domestic obligation. In Zambia, families
are considered the very fabric of society. They are the smallest unit of society. Thus, society is
made up of a sum total of families. It is because of this recognition that the law under the Penal
Code criminalizes certain conduct in relation marriage and domestic obligations.

9.3 Bigamy
This offence is provided for under section 166 of the Penal Code and carries a sentence of five
years’ imprisonment. The Penal Code under the stated section reads:
“Any person who, having a husband or wife living, goes through a ceremony of
marriage which is void by reason of its taking place during the life of such
husband or wife, is guilty of a felony…”

The in order to secure a conviction the prosecution must show that the accused intentionally
engaged into a second marriage while married to another. There must be a subsisting marriage
at the time of the second marriage is contracted. Note also that the effect of the section is that
makes void any marriage which is contracted during the subsistence of another one.
However, the above does not apply where it is shown that the first marriage was declared void
by a court of competent jurisdiction, or where a husband or wife has been continually absent
from their spouse for the space of seven years, and has not been heard of by the spouse as being
alive within that time. See also the Marriage Act CAP 50 of the Laws of Zambia.

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9.4 Desertion of Children

This offence is provided for under section 168 of the Penal Code and carries a sentence of not
exceeding seven years’ imprisonment. For a conviction on this offence to succeed it must be
shown that:
i. Being a parent, guardian or other person;
ii. having the lawful care or charge of a child;
iii. being able to maintain such child; and
iv. willfully and without lawful or reasonable cause deserts the child leaving it without
means of support.
The Prosecution must prove the above elements beyond reasonable doubt. A conviction on this
offence will fail where there is a lawful or reasonable excuse. The standard for what amounts
to a reasonable excuse is an objective one. It appears that where a child is left with a means of
support then desertion will not be said to have happened.

9.5 Neglecting to Provide for Children

This offence is provided for under section 169 of the Penal Code. On conviction, a fine not
exceeding one hundred thousand penalty units maybe imposed or a sentence of imprisonment
for a term not exceeding three years or to both. The constituent elements of this offence are as
follows:
i. A parent; guardian; or person in charge;
ii. of a child that is unable to provide for itself;
iii. Who refuses or willfully neglects to provide;
iv. being able to do so, sufficient food, clothes, bedding or other necessities for such child;
and
v. thereby injures the health of such child.
The prosecution must establish the elements above in order to secure a convict. Where is shown
that a parent; guardian; or person in charge of a child is unable to provide then the prosecution’s
case must fail. Note that this section is premised on the need for the state to protect children
from all forms of maltreatment by parents or others responsible for the care of the children.
Clearly, the vulnerability of children entails that they have a right to protection from cruelty,
abuse, neglect and exploitation.

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9.6 Child Stealing

This offence is provided for under section 171 of the Penal Code and carries a sentence of
fourteen years’ imprisonment. The sentence attached to the offence speaks to its seriousness.
This offence occurs where any person who has an intent to deprive parent, guardian or other
person who has the lawful care or charge of a child. This may happen where the accused
forcibly (use of force), or fraudulently (dishonestly) takes or entices away, or detains the child.
Additionally, persons who receive or harbor a child, knowing that the child was taken in the
manner described above are liable to the same punishment.
It must be observed that the accused in his/her defence can show that he/she has a claim in
good faith a right to the possession of the child, in the case of an illegitimate child, that he/she
is the mother or claimed father.

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UNIT TEN

OFFENCES AGAINST PROPERTY

10.1 Objectives
i. Identify the basic elements of offences relating to property; and
ii. Understand the fact situations under which some of the offences relating to property
must be committed.

10.2 Introduction
These are offences that affect another person's rights of ownership (or in some cases possession
or control). The Penal Code deals with a number of offences against property such as, theft,
house breaking and burglary, robbery, aggravated robbery and numerous other offences that
are not covered in this section. It is expected that by the end of this section the student should
be able to identify the basic elements of offences relating to property and understand the fact
situations under which some of the offences relating to property must be committed.

10.3 Theft

Theft is created by section 265 of the Penal Code. It has been as the taking of things capable
of been stolen with the intention of permanently depriving the owner of the thing taken. It has
also been defined as the dishonest appropriation of property belonging to another with the
intention of permanently depriving the other of it. Observe that in both definitions theft
involves the taking of anything capable of being stolen which belongs to another.
Section 265 of the Penal Code defined theft as:
“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, is said to steal
that thing.”
Actus Reus
The actus reus of theft consists of the following:
i. Taking;
ii. Anything Capable of Being Stolen; and
iii. Belonging to Another.
i. Taking
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The word ‘take’ must be understood from its ordinary meaning. Thus the word may imply to
obtain, seize, pocket, carry, accept, assume, appropriate, or such other meaning as may be
attached to the word. Note that taking in theft must be factual. In terms of section 265(5) (a)
person is not deemed to take a thing unless if he moves it or causes it to move. However, taking
should not be understood to involve movement of the thing to a very distant place; it is
sufficient that the thing has been completely removed from where it originally was in the
owner’s possession. There cannot be a theft where the taking of something is with the consent
of the owner of the thing unless the consent has been obtained by fraud or false pretences.178
ii. Anything Capable of Being Stolen
Section 264 of the Penal Code is instructive on the question of things capable of being stolen.
For the purposes of this section property includes: animals, money, personal property
(nonphysical property) – cheque, copyright, trademark & shares. It should be noted that from
the wording of this section only movable property is capable of being stolen. Real property
such as land or houses are incapable of been moved. The prerequisite being, the property must
be movable.
iii. Belonging to Another
The phrase is said to mean the same thing as ‘which is property of any person’. This means
that the person has possession or control of it, or has in it any proprietary right or interest. Thus,
property capable of being stolen must belong to someone other than the person being accused
of having stolen. Obviously one cannot steal one’s own things and therefore, there can only be
theft of another person’s property. Note that property cannot be ownerless unless it is
deliberately abandoned. However, where there has in fact been an abandonment, will often be
a difficult question of fact.
In Hibbert v. McKiernan179 it was held that a person who loses property does not necessarily
intend to abandon it, even where he has given up the search for it. In Williams v. Philips180 it
was stated that refuse put into the dust bin is not abandoned since it remains in the
householder’s possession until it is taken away, when it becomes the property of the Local
authority. It must be noted that the mere fact that someone does not wish to make further use
of an article and thus it is of no value to him does not mean he has abandoned it. However,

178
Gomez (1993) 1 All ER 1, HL
179
Hibbert v. McKiernan (1948) 2 KB 142
180
Williams v. Philips (1957) 41 Cr App R 5
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where an accused holds an honest belief that property has been abandoned, then, off course,
apart from any question of whether or not that is the case, he would be acquitted.

Mens Rea
The mens rea for theft is twofold. It must be shown that the accused was:
i. Acting fraudulently(dishonestly) without claim of right; and
ii. He had the intention of permanently depriving the owner of the property.
i. Fraudulently
Fraudulently maybe be understood as meaning dishonesty. In terms of sections 265 (1) and 265
(2) ‘fraudulently’ is partly about knowing of the circumstances constituting the actus reus of
theft. This knowledge, or belief, if held honestly, in good faith, then the prosecution will not
be able to establish dishonesty and the accused person maybe acquitted. In determining
whether an accused to the thing fraudulently the courts must look at the facts. the standard
applied is an objective one, meaning the standard of the ordinary (reasonable) person. See
Muzyamba v. The People (1975) Z. R. 83, S. Ct.
ii. Intent Permanently to Deprive
It must be shown that the accused had an intention to permanently deprive. However, there is
no need for proof of actual permanent deprivation. If this was the case, there would be no
charge of theft in a situation where the goods are recovered & returned to the owner.
See also Mwachilama v. The People (1972) ZR 286; R v. Williams (1953) 37 Cr. App. R
71 and R v. Turner (No.2) (1971) 2 All ER 44.

10.4 House Breaking and Burglary

Under section 301 the Penal Code establishes two distinct offences relating to breaking into a
dwelling house or building each requiring a breaking into or entry. The elements of these
offences are the same except for the time they are committed. Housebreaking occurs during the
day time while burglary happens in the night. Note also that in terms of punishment
housebreaking attracts a maximum sentence of seven years’ imprisonment whereas burglary
attracts a maximum of ten years’ imprisonment.
The essence of this offence in general is that is it committed either by entering a building as a
trespasser with the intent to steal, or by stealing after entering a building or part of a building.
The reference to ‘intent to commit a felony’ mentioned in the section ought to be understood

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to include a number of felonious offences such as theft, rape, doing grievous harm on any
person in the house or building.

Actus Reus

From the wording of the Penal Code from section 300, 301, 302 and 304 it may be concluded
that the actus reus of house breaking and burglary consist of the following elements:
i. Entering
ii. As a trespasser
iii. Building (dwelling house)
i. Entering
The prosecution must prove that the accused entered a dwelling house or a building or part of
it. As regards entry there is no need to show that the accused broke into the building but merely
that he entered. The entry is complete as long as any part of the accused’s body is inserted
within the house or a building or part of it. It would suffice if any part of the person is inserted
for the purpose of abstracting property or merely for the purpose of furthering the entry.
iv. As a Trespasser
The accused must have entered as a trespasser or remained in the building as a trespasser.
Therefore, where the accused entered the building without permission, or having entered with
permission but remains in the building when the time for his stay has elapsed, or he/she enters
part of building where he/she is not allowed to enter (exceeding the terms of permission). In
such cases, he/she is a trespasser.
iii. Building (dwelling house)
The term building should be understood in its natural and ordinary meaning. Note that some
degree of permanence is required, ergo, a tent may not qualify as a building under this offence.
Buildings cover dwelling houses, shops, warehouses, garages, sheds and factories etc. suffice
to note that even a container positioned for some time and fitted with electricity or toilet
facilities may constitute a building for the purposes of this offence. Sometimes, the question
may arise as to whether a certain structure can be classified as part of a building such as a
dwelling house. On the authority of Mumba v. The People181 a dwelling must be the residence

181
Mumba v. The People (1971) ZR125
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of someone and someone must regard that as his home. It is immaterial that the house is from
time to time uninhabited. Any building or structure adjacent to or occupied with a dwelling
house is deemed to be part of a dwelling house. Traditional huts also qualify as dwelling houses.

Mens Rea
The prosecution must prove that the accused person intended to enter the building or part of it
knowing of the facts which render his entry a trespass in law, or at least realizing that such
facts may exist (recklessness). There must also be an intention to steal from the building or part
of it, or to commit any felony therein.

10.5 Robbery

Robbery is a felony and is created by section 292 of the Penal Code whose penalty upon
conviction is a sentence of fourteen years’ imprisonment. The very essence of robbery is that
there must be a theft and threatened or actual use of violence at the time of the theft, or the
threatened or actual use of violence may occur immediately after the theft. Robbery is more
serious than theft. The actus reus of robbery is theft and threatened or actual use of force.
Therefore, the prosecution must show that theft had taken place coupled with threatened or
actual use of force. The mens rea for robbery is that which applies to theft coupled with the
element of an intention to use force.

10.6 Aggravated Robbery

Section 294 of the Penal Code criminalizes robbery which is aggravated by the use of any
offensive weapon or instrument. Aggravated robbery is a more serious offence in comparison
with robbery. To reflect the serious nature of this offence a minimum punishment of fifteen
years’ imprisonment is prescribed; but where a firearm was used in the robbery there is a
mandatory death sentence to be imposed.
In order to secure a conviction, the elements of theft and robbery must be proved. In Mugala
v. The People182 it was held that in order for aggravated robbery to be established, it is
necessary for the prosecution to show that the violence was used in order to obtain or retain the
thing stolen. In addition, it must be shown by the prosecution that the accused was armed with

182
In Mugala v. The People (1975) ZR 282 (SC)
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any offensive weapon or instrument. In John Timothy & Feston Mwamba v. The People183
it was held that to establish an offence under section 294(2) the prosecution must prove that
the weapon used was a firearm within the meaning of the firearms’ Act. The mens rea for theft
applies but intention to use force is added.

10.7 Activity

QUESTIONS FOR DISCUSSION

1. What do you understand by the term ‘theft’?
2. List the elements of theft.
3. Explain the terms ‘taking’, ‘fraudulently’, and ‘claim of right’.
4. What things are capable of being stolen?
5. List the things that are capable of being stolen.
6. Differentiate using examples to illustrate points between offences of being found
in possession of stolen goods and receiving stolen goods.
7. Attorney- General’s Reference (No. 1 of 1974) [1994] QB 744 CA – ‘Good are not
deemed to be stolen if they have been restored to the person from whom they were
stolen from or to other lawful possession or custody’. Discuss.

183
John Timothy & Feston Mwamba v. The People (1977) ZR 394
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UNIT ELEVEN

RECEIVING STOLEN GOODS AND RELATED OFFENCES

11.1 Objectives

By the end of this section the student should be able to:

 Understand the nature and elements of receiving and retaining and possession of

property suspected to be proceeds of crime; and

 Identify the statutory provisions that establish the said offences.

11.2 Introduction

Offences involving receiving and disposal of stolen or unlawfully obtained property are
regarded as being more serious than theft because those who receive stolen property provides
the thieves with incentives to continue the practice. Under this heading two offences shall be
considered, that is, receiving and retaining stolen good and possession of property suspected to
be proceeds of crime.

11.3 Receiving and Retaining

In Zambia, it is an offence for one to receive or retain money, chattel or property while knowing
or believing the same to have been stolen or extorted or unlawfully obtained. This offence is
established under section 318 of the Penal Code whose penalty upon conviction is a prison
sentence of seven years. The actus reus of this offence is identified on the basis of section 318
of the Penal Code. The following elements must be satisfied:
i. Receiving and retaining goods
ii. The goods must be stolen.
i. Receiving and Retaining
Receiving implies that the accused must have acquired control or possession over the stolen
goods from another. On the other hand, retaining implies the keeping possession of or
continuing to have goods. Possession needs to be established, therefore, it is cardinal to show
that the goods are either in the accused’s immediate custody or located at a place which the

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accused has control over. In Elias Kunda v The People184 Silungwe CJ, as he then was, opined
that:
“Where an accused person is in possession of property recently stolen, the court
may infer guilty knowledge if he gives no explanation to account for his
possession or if the court is satisfied that the explanation offered is untrue.”

And held further that,

“Mere custody of recently stolen property is enough to prove possession.”
ii. The Goods Must Be Stolen
For a conviction to stand, the prosecution must prove that, at the time of receiving, the goods
had the character ascribed to it in the charge, that is, they were stolen goods. The Penal Code
does not define stolen goods. However, stolen goods would be any property that comes into
the control or possession of the accused as a consequence of theft, robbery or burglary.
Additionally, meaning of stolen goods extends to include situation were goods are obtained by
false pretences (see section .300 of the Penal Code). Note that when goods are stolen, it does
not matter how the thief acquired them as long as they are stolen goods in his/her hands when
he/she delivers them to the accused.
The mens rea consists of receiving or retaining the goods fraudulently and knowing or
believing them to have been stolen or unlawfully obtained. Section 318 requires that there is
knowledge at the time or receiving or retaining that the goods were stolen or unlawfully
obtained. The test here is a subjective one and the accused must have actually known or
believed the goods to have been stolen or unlawfully obtained.
1. Possession of Property Suspected to be Proceeds of Crime
This offence is established under section 319 of the Penal Code. The said section reads:
Any person who shall be brought before a court charged with-
(a) having in his possession anything which may be reasonably suspected of
having been stolen or unlawfully obtained; or
(b) conveying in any manner anything which may be reasonably suspected of
having been stolen or unlawfully obtained; and who shall not give an account to
the satisfaction of such court of how he came by the same, is guilty of a
misdemeanor.

184
Elias Kunda v The People (1980) Z.R. 100 (S.C.)
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In exceptional circumstances there is no need to provide evidence that the has stolen it is
enough that the prosecution shall that the accused was found in possession of property that is
suspected of being the proceeding of crime. Here there is a suspicion based reasonable
inference that the goods were stolen. Because the property is found in the custody or control of
the accused person it is then required that he/she give a satisfactory explanation how he came
in possession of the property in question, failure to which the court may be entitled to draw an
inference that the accused may have stolen or might have received the property from the person
who stole it.
Take for example, Y is found in possession of an item which if one looks at the surrounding
circumstances a person of Y’s social status could not possess such goods and the question who
can give away such goods is answered in the negative, then a reasonable suspicion that he/she
may have stolen, or obtained the item unlawfully and Y may be charged of the offence of being
in possession of property reasonable suspected to be proceeding of crime.

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UNIT TWELVE

OFFENCES RELATING TO FALSE PRETENCES

12.1 Objectives

By the end of this section the student should be able to:

 Understand and appreciate the nature of offences relating to force pretences; and
 Have an awareness of the various statutory provisions that establish these offences.

12.2 Introduction
The common theme amongst offences relating to false pretences is that the accused person
must by representation, as a matter of fact or law, obtain something that is capable of being
stolen (section 309 of the Penal Code), or obtain pecuniary advantage (section 309A of the
Penal Code). In order for an offence to amount to false pretences property must have been
obtained by false representation.

12.3 False Pretences

The Penal Code under section 309 defines false pretences as:

“Any representation made by words, writing or conduct, of a matter of fact or of

law, either past or present, including a representation as to the present intentions
of the person making the representation or of any other person, which
representation is false in fact, and which the person making it knows to be false
or does not believe to be true, is a false pretence.”

The representation made must be known to be untrue to the maker and the maker of the same
must have a dishonest intent to make someone do something. The representation must be of
fact or law but not a statement of opinion. Note also that the representation must be either
express or implied such that any reasonable man could have been led to act in the manner the
victim acted. In addition, a false representation maybe by words, writing or conduct not
intended to be kept by the accused.
Offences involving false pretences require that:
i. there was a false representation (words, written or conduct) by the accused;
ii. as a matter of fact, or law;
iii. which induced the victim into a particular undertaking; and

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iv. the false pretence must occur before the obtaining.

12.4 Obtaining Pecuniary Advantage by False Pretences

This offence is provided for under section 309A of the Penal Code. The offence of obtaining
pecuniary advantage by false pretences refers to monetary advantage or benefit. According to
s. 309 Pecuniary advantage would include situations where:
i. any debt or charge for which he makes himself liable or is or may become liable
(including one not legally enforceable) is reduced or in whole or in part evaded or
deferred; or
i. the accused borrows by way of overdraft; and
ii. given an opportunity to earn remuneration or to win money by betting.
Actus Reus
To secure a conviction the prosecution must show that by means of false pretence the accused
obtained for himself or another a pecuniary advantage. Thus, there are three constituent
elements that the prosecution must establish, these are:
i. false pretence.
ii. obtained for himself or another.
iii. a pecuniary advantage.
See DPP v. Turner (1974) AC 347, HL.
Mens Rea
To establish mens rea under section 309A of the Penal Code the prosecution must show the
existence of the following elements:
i. dishonestly
ii. dishonestly makes a false representation.

12.5 Obtaining Goods by False Pretence

This offence is established under section 309 of the Penal Code. The offence is a misdemeanor
punishable with a maximum of three years’ imprisonment. Evidently, in Zambia, the offence
of obtaining goods by false pretence is treated as less serious than theft and receiving and
retaining.
Actus Reus
The actus reus of the offence under section 309 requires that the prosecution establish the
following elements:

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i. By false pretence. It is required that the prosecution show that that accused person made
an untrue representation, and as a result the victim believed that an untrue
representation.
ii. Obtained, or induced delivery of anything capable of being stolen. Here the prosecution
must show that the accused person obtained ownership or possession or control by false
pretences. The term ‘obtained’ implies that the accused obtained the goods for himself,
while the phrase ‘induced delivery of good” implies that may be delivered to any person
not necessarily the accused person.
iii. Anything capable of being stolen. This has already been covered above (see theft).
iv. Belonging to another. This has also been covered above (see theft).
Mens Rea
The mens rea requirements under section 309 of the Penal Code are as follows:
i. Fraudulently (intention to defraud)
ii. An intention to permanently deprive
iii. Deliberately or recklessly makes a false representation. This can be implied from
section 309.

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UNIT THIRTEEN

MALICIOUS DAMAGE TO PROPERTY

13.1 Objectives

By the end of this section the student must be able to:

 Understand the nature of offences that deal with criminal damage/malicious damage to
property; and
 Show a clear awareness of the statutory provisions that establish these offences.

13.2 Introduction
Malicious damage (criminal damage) is any damage which has been caused by an individual
to some form of property. Examples of offences involving criminal damage: Arson, threat to
destroy property or damage to property. The term malicious damage implies the intentional
destruction or damage of property. The destruction or damage to property must be actual, that
it, physical alteration, harm, impairment or deterioration caused by the accused willfully and
unlawfully to any property.185 In Zambia, the Penal Code under chapter XXXIV criminalizes
malicious conduct that results in injury to property.

13.3 Arson

Arson has been defined as the willful or malicious burning of property (as a building) especially
with criminal or fraudulent intent. It has also been defined as the crime of intentionally and
maliciously setting fire to structures or wildland areas. It may be distinguished from other
causes such as spontaneous combustion and natural wildfire. This offence is provided for under
section 328 of the Penal Code. The offence is classified as a felony and carries a prison sentence
of life. The sentence attached to the offence reflects it serious nature. According to section 328:
Any person who willfully and unlawfully sets fire to-
(a) any building or structure whatever, whether completed or not; or
(b) any vessel or any motor vehicle as defined in the Roads and Road Traffic Act,
whether completed or not; or
(c) any stack of cultivated vegetable produce, or of mineral or vegetable fuel; or
(d) a mine, or the workings, fittings, or appliances of a mine;
is guilty of a felony and is liable to imprisonment for life.

185
Smith & Hogan, Criminal Law (13th edn) (Oxford, Oxford University Press: 2011), 1013
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In R v. Damaseki186 the considered the meaning of the terms willfully and unlawfully. It
concluded that the word ‘willfully’ meant an act of will that is not by accident and word
‘unlawfully’ implied an act that was done contrary to the law. Therefore, in order to secure a
conviction, the prosecution must have established that the accused set the fire willfully and
unlawfully. The implication is that a fire started accidentally will not amount to arson. Thus,
the actus reus and mens rea requirements are satisfied where it is shown that the accused:
i. Started the fire; and
ii. He/she acted willfully and unlawfully. (unlawfully meaning contrary to section
328 and related sections of the Penal Code). Here the mens rea requirements
demand that the prosecution show that the accused acted intentionally or
recklessly. In R v. Mohamedali187 the Supreme Court of Kenya observed that to
act recklessly is to act willfully.

13.4 Willful and Unlawful Damage to Property

This offence is created under section 335 of the Penal Code. Accordingly, the Penal Code
provides that:
“Any person who willfully and unlawfully destroys or damages any property is
guilty of an offence, which, unless otherwise stated, is a misdemeanor and he is
liable, if no other punishment is provided, to imprisonment for two years.”

The actus reus of this offence consists of:

i. destroying or damaging. There is no legal definition of "destroys or damages".
However, according to Smith & Hogan, 'What is contemplated by "destroy or damage"
is actual destruction or damage; that is, some physical harm, impairment or
deterioration which can be usually perceived by the senses.'188 The damage or
destruction in issue will normally arise from the defendant's freely willed act.
However, a defendant may be held responsible for failing to halt the spread of harm
started accidentally. See: R v Miller [1983] 2 WLR 539.
ii. Property. According to section 4 of the Penal Code property “includes any description
of real and personal property, money, debts, and legacies, and all deeds and instruments

186
R v. Damaseki (1961) High Court of Nyasaland
187
R v. Mohamedali (1945) High Court of Nyasaland
188
Smith & Hogan, supra note 225 at p. 1013
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relating to or evidencing the title or right to any property, or giving a right to recover
or receive any money or goods, and also includes not only such property as has been
originally in the possession or under the control of any person, but also any property
into or for which the same has been converted or exchanged, and anything acquired by
such conversion or exchange, whether immediately or otherwise.”
iii. Unlawfully. This means contrary to section 335 and other related sections.
Note: Section 335 uses the phrase any property, therefore, there is no requirement that the
property necessarily belongs to another.
On the other hand, to establish mens rea the prosecution must establish intention (willfully) or
recklessness.

13.5 Activity

QUESTIONS FOR DISCUSSION

1. What is meant by the phrase ‘willfully and unlawfully’?
2. Why is arson considered are serious offence?

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UNITY FOURTEEN

OFFENCES AGAINST PUBLIC ORDER

14.1 Objectives

By the end of the section the student should be able to:

 Know offences which relate to interference with the operation of government
machinery;
 Be aware the statutory provisions that establish these offences; and
 Be able to cite examples of court decisions in relation to the offences which interfere
with the operation of the Government.

14.2 Introduction

This unit deals with offences against public order. These include treason, misprision of treason,
treason felony, promoting tribal wars, inciting mutiny soldiers or police, aiding soldier or police
in acts of mutiny, sedition, unlawful assembly, riots and disorderly behavior in public places
all of which are covered in this section.

14.3 Treason

Treason is probably the most important offence covered under this section. The offence has
its roots in common law and originated from the historical background that the king was the
sovereign of the state and anybody who conspired or incited any other person to endanger the
life of the king or dispose his kingship or lay a war against the king or support any enemies of
the king was regarded to constitute treason. In contemporary times, in every democratic state,
Zambia included, Government represents the sovereign will of the people, therefore, anyone
who attempts to overthrow a democratically elected government commits treason.
The offence is created by section 43 of the Penal Code and punishable by a mandatory death
sentence. According to the aforementioned section any one of the following constitutes treason:
a) Preparations to overthrow the Government by unlawful means;
b) Preparations to alter the law or policies of the Government by force;
c) Preparations to set up an independent State in Zambia;
d) Preparations to usurp executive power of the State by force in any matter of both a
public and a general nature;

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e) Inciting or assisting any person to invade Zambia by armed force; or

f) Assisting an enemy in time of war.
In Shamwana and Others v. The People189 the defendants were tried under section 43(1) of
the Penal Code for undertaking preparations to overthrow by unlawful means the Government
of the Republic of Zambia as by law established. Supreme Court held that ‘in Zambia any
person who is charged with treason, whether or not he owes his allegiance to Zambia or to
another country, is amenable to the Zambian jurisdiction. In order to prove it (treason) all overt
acts must be stated in the charge sheet and there must be corroboration of evidence’. See also
Joyce v. D.P.P. (1946) AC 347.
The Edward Jack Shamwana case emphasized the need in any charge of treason ‘overt acts’
must be proved to the satisfaction of the court (section 52). The actual overt act must be
mentioned in the charge or else it may be a ground for challenge on appeal as was the case in
the case of Edward Jack Shamwana.
In terms of section 43(3) of the Penal Code a foreigner cannot be punished for treason
committed outside Zambia. However, any person can be charged with treason provided the
offence is committed in Zambia.

14.4 Misprision of Treason

Section 44 of the Penal Code creates the offence of misprision of treason. This offence happens

where a person being aware of treason or activities which constitute treason and does not report

to be the necessary authorities (the police) with reasonable dispatch. In such cases the person

who being aware of treason or activities which constitute and does not report becomes an

accessory after the fact. Misprision of treason is punishable by a mandatory sentence of

imprisonment for life.

14.5 Felony Treason

Treason-felony is created by section 45 of the Penal Code and is punishable by imprisonment

for twenty years. The sentence is mandatory.

189
Shamwana and Others v. The People (1985) ZR 41
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14.6 Promoting Tribal Wars

Section 46 of the Penal Code criminalizes any conduct/activities not authorized by the state
that is likely to result in war or any warlike undertaking among tribal groupings. Such conduct
must be directed against a chief or tribal group (against a particular group of people). The
section in question provides as follows:
“Any person who, without lawful authority, carries on, or makes preparation for
carrying on, or aids in or advises the carrying on of, or preparation for, any war
or warlike undertaking with, for, by, or against any chief, or with, for, by, or
against any tribal group, is guilty of a felony, and is liable to imprisonment for
life.”
Therefore, section 46 of the Penal Code criminalizes the following activities:
i. To carry out a war against a chief or tribal group.
ii. To make arrangements to carry out a war against a chief or tribal group.
iii. To aid in carrying out a war against a chief or tribal group.
iv. To advise on the carrying out of any warlike initiative against a chief or tribal group.
The activities noted above constitute the actus reus of this offence. The mens rea of the offence
under section 46 is not provided in the Penal Code. The implication is that the court may treat
such an offence as one that falls under strict liability offences. Conversely, the court may read
in the mens rea. once this is done the prosecution would need to prove it beyond reasonable
doubt.

14.7 Inciting Mutiny, Soldiers or Police

Mutiny refers to an insurrection of soldiers or crew members against the authority of their
commanders. This offence is established under section 48 of the Penal Code. If charged and
convicted one would be liable to imprisonment for life. This offence is said to be committed
when one by way of seducing or inciting advices a person serving in the Defence Force, or
Police Force from his duty and allegiance to the President to commit an act of uprising or any
disloyal or rebellious act or to make a rebellious assembly. The actus reus of this offence
constitutes of Seduction or inciting. There is no need for the prosecution to prove that the
seducing or inciting was successful in order for it to constitute this offence. The mens rea can
be drawn from the word ‘advisedly’ which implies careful thinking or deliberation. It is
encumbered on the prosecution to prove this beyond reasonable doubt.

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In addition, it should be established that the person seduced or incited is a member of the
Zambia Defence Force or Zambia Police Services and that the purpose of seduction or
incitement was to bring about disloyalty or disobedience.

14.8 Aiding Soldier or Police in Acts of Mutiny

This offence is established under section 49 of the Penal Code. The Penal Code under the said
section provides as follows:
“Any person who-
(a) aids, abets, or is accessory to, any act of mutiny by; or
(b) incites to sedition or to disobedience to any lawful order given by a superior
officer; any non-commissioned officer or private of the Defence Force or any
member of the Zambia Police Force, is guilty of a misdemeanor”

If charged and convicted the accessory is guilty of a misdemeanor. Note that the Penal Code
under this section does not impose a penalty. Therefore, the court may exercise discretion to
impose any imprisonment term prescribed as general punishment for misdemeanors under
section 38 of the Penal Code. Section 38 provides as follows:
“When in this Code no punishment is specially provided for any misdemeanor,
it shall be punishable with imprisonment for a term not exceeding two years or
with a fine or with both.”

14.9 Sedition

This offence is established under section 57 of the Penal Code. The nature of the offence is such
that a person by means of speaks or writes words that are likely to incite ordinary people to
public disorder or insurrection. This offence covers situations where an accused incites people
or a group of people or certain section in the community to have evil feelings against or
discontent among certain sections or where an individual does an act or conduct which is
disrespectful to the President or the Laws of Zambia or where an individual incites or proposes
violence or disturbs the public peace or where a person makes some publications which utters
seditious words will be guilty of an offence.

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In R v. Chona190 the accused was the national secretary of the United National Independent
Party (UNIP). He issued a document which described the evils of colonial rule. The accused
was charged and convicted with publishing a seditious publication.
The court held that the elements of seditious offences are satisfied when the seditious words or
publication are intended ‘to bring into hatred or contempt and to excite disaffection against the
administration of justice in the Territory’
The following situations as provided for under the proviso in section 60 of the Penal Code do
not amount to sedition:
a) Show that the Government has been misled or mistaken in any of its measures;
b) Point out errors or defects in the Government or Constitution or in legislation or
administration of justice with a view to the reformation of such errors or defects;
c) Persuade the people to attempt to procure by lawful means the alteration of any matter
as by law established; or
d) Point out, with a view to their removal, any matters which are producing or tending to
produce feelings of ill will or hostility between different classes of the population of
Zambia.
Note: The Penal Code does not define sedition per se but rather provides for seditious intention.
In other words, the offence of sedition cannot exist without a seditious intention. Seditious
intention is defined in section 60 of the Penal Code and the same section provides for instances
that amount to seditious intention. See also DPP v. Ngandu and Others (1975) ZR 253 (SC)
and DPP v. Chike Obi (1961) All NLR 186

14.10 Unlawful Assembly

This offence is established under section 74 (1) of the Penal Code. The offence is classified by
section 75 as a misdemeanor and a person charged and convicted is liable to five years’
imprisonment. To establish that that an assembly is an unlawful the prosecution must show that:
i. Three or more persons must be present;
ii. They must intend to commit an offence or to carry out some common purpose;
iii. They must conduct themselves in a manner that causes persons in the neighborhood to
fear that the assembled persons will commit a breach of the peace, or will by such

190
R v. Chona (1962) R & N 344 HCNR
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assembly needlessly and without reasonable occasion provoke other persons to commit
a breach of the peace.
For the purposes of this section an assembly must be distinguished from a meeting in that
meetings involve prior organization, agenda, and would include delivery of speeches and
the passing of resolutions. It must be observed that lawful assemblies may become unlawful
provided the persons so assembled conduct themselves in a manner proscribed by law. See
Wise v. Denning (1902) 1 KB 267 and Beatty v. Gillbanks (1882) 9 QBD 308

14.11 Riots

This offence is created under section 74(2) of the Penal Code and under section 76 riots
are punishable by a sentence of seven years’ imprisonment. The Penal Code under the
section 74(2) reads as follows:
“When an unlawful assembly has begun to execute a common purpose by a
breach of the peace and to the terror of the public, the assembly is called a riot,
and the persons assembled are said to be riotously assembled.”
Therefore, from the preceding section as cited above the elements of a riot are as follows;
i. There must be three or more persons.
ii. Must demonstrate unnecessary violence.
iii. Violence as a common purpose.
iv. Need to display the actual violence as to alarm the public.
Note that under section 77 of the Penal Code any police officer of or above the rank of inspector

in whose view twelve or more persons are riotously assembled, or who apprehends that a riot

is about to be committed by twelve or more persons assembled within his view, may make or

cause to be made a proclamation in the President's name, in such form as he thinks fit,

commanding the rioters or persons so assembled to disperse peaceably.

14.12 Disorderly Behavior in Public Place

Offence falling under this heading are provided for under sections 84 to 90 of the Penal Code.
Examples of activities that would amount to disorderly behavior in public places include:
Examples include
i. Going armed in public & cause terror to any person. Such a person would be guilty of
misdemeanor (see section 84).
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ii. Any person who takes part in a flight in a public place is guilty of a misdemeanor and
liable to imprisonment for 6 months or fine (see section 88).
iii. Challenge to fight or attempt to fight a contest is prohibited (see section 89).
iv. Threatening violence or opening fire with intent to alarm any person. Such person
would be guilty of misdemeanor & liable to 5 years’ imprisonment (see section 90).
The offences above are examples of situation which can lead to public violence the commission
of which would lead to breach of peace.

14.13 Activity

QUESTIONS FOR DISCUSSION

1. Explain with reference to cases/statute your understanding of the nature of the
following offences;
i. Treason
ii. Treason felony
iii. Misprision of treason
2. What is the significance of the Shamwana case (1985) note in the case supreme
court held that ‘in Zambia treason is an offence committed against the duty of
allegiance? In order to prove it all overt acts must be states in the charge sheet and
there must be corroboration of evidence’ Elaborate
3. Define an ‘overt act’ and what amounts to preparation in the offence of treason.
4. What constitutes seditious intention as provided for in section 60
5. of the Penal Code?
6. Explain the ratio decidendi in the case of R v. Chona.
7. What is ‘fair criticism’ and in what manner should one express
8. his grievances or censure Government without committing the offence of sedition?
9. List the elements of unlawful assembly.
10. Is unlawful assembly a felony or misdemeanor?
11. Why do you think the offence of riot was created?
12. Who are authorized to make proclamations and in whose name are they made?
13. What are the implications of disobeying a proclamation?

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UNIT FIFTEEN

OFFENCES AGAISNT ADMINISTRATION OF LAWFUL AUTHORITY

15.1 Objectives

15.2 Introduction

This section discusses offences by persons working in public services (government) such as
Ministries, Local Councils, learning institutions under the supervision of the Ministry of
Education. These offences which include, false claims by officials, abuse of authority of office,
false certificates by public officers and personating public officers.

15.3 False Claims by Official

This offence can be seen in section 98 of the Penal Code. The said section reads:

“Any person who, being employed in the public service in such a capacity as to
require him or to enable him to furnish returns or statements touching any sum
payable or claimed to be payable to himself or to any other person, or touching
any other matter required to be certified for the purpose of any payment of money
or delivery of goods to be made to any person, makes a return or statement
touching any such matter which is, to his knowledge, false in any material
particular, is guilty of a misdemeanor.”

This offence occurs where, for example, Y an employee of the Ministries of Justice undertakes
a trip to South Africa on official government business. He/she lodges in a hotel for three days
during the course of he/her trip. Upon return Y claims a sum payable for hospitality for a period
of five days instead of three. In such cases, Y is guilty of the misdemeanor of false claims by
official. See Nevers Mumba v. The People (unreported) and George Mupombo v. The
People (unreported)
Note: the Penal Code under this section does not impose a penalty. Therefore, the court may
exercise discretion to impose any imprisonment term prescribed as general punishment for
misdemeanors under section 38 of the Penal Code.

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15.4 Abuse of authority of office

This offence is established under section 99 of the Penal Code. The nature of this offence is
that the accused being a person employed in the public service directs to be done or acts in a
manner that is arbitrary and prejudicial
to the rights or interests of the Government or any other person. In such cases, an accused who
conducts himself in such manner is guilty of a misdemeanor. Since the Penal Code does not
prescribe a penalty here section 38 of the Penal Code is applicable.
It must be observed that if the act is done or directed to be done is for purposes of gain, the
accused will be guilty of a felony and is liable to imprisonment for three years. See also the
Anti-Corruption Act No. 3 of 2012, Dora Siliya v. The People (Unreported) and Mumba v.
The People (Unreported).

15.5 False certificates by public officers

This offence is established under section 100 of the Penal Code. Under this law any person in
public service authorized by law to issue certificates who knowingly issues a false certificate
the results of which prejudicially affect another is guilty of misdemeanor. Section 38 will be
applicable here as well.
Examples include, issuing a false medical certificate, birth certificate etc.

15.6 Personating public officers

The Penal Code under section 102 reads:

Any person who-

(a) personates any person employed in the public service on an occasion when
the latter is required to do any act or attend in any place by virtue of his
employment; or
(b) falsely represents himself to be a person employed in the public service, and
assumes to do any act or to attend in any place for the purpose of doing any act
by virtue of such employment…

Under this section a person commits an offence if he/she falsely pretends to be employed
in public service is instances where:
i. The public servant impersonated is required to do an act or attend any place (this
may be a meeting, or any other occasion) by virtue of his/her employment.
ii. The accused falsely represents a public servant and assumes to do acts or attend
such occasions as are connected to that position in the public service.
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The offence is a misdemeanor and if found guilty a penalty of three years’ imprisonment
is prescribed.

15.7 Activity

QUESTIONS FOR DISCUSSION

1. In what cases can a public servant be said to have abused his/her authority?

2. What is meant by the term arbitrary and prejudicial?

3. What is your learned opinion of the case of Nevers Mumba v. The People?

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UNIT SIXTEEN

THEORIES OF PUNISHMENT

16.1 Objectives

By the end of this Unit you should be able to:

i. Appreciate the necessity of punishment
ii. Name and define the four principal theories of punishment in Criminal Law
iii. Mention cases to illustrate how the Courts have adopted the theories of punishment

16.2 Introduction

Punishment, as it is used in common parlance, involves the infliction of pain or forfeiture, it is

the infliction of a penalty, chastisement or castigation by the judicial arm of the State. But if
the sole purpose of punishment is to cause physical pain to the wrong-doer, it serves little
purpose. However, if punishment is such as makes the offender realize the gravity of the
offence committed by him, and to repent and atone for it (thus neutralizing the effect of his
wrongful act), it may be said to have achieved its desired effect.191 This sections discusses the
various theories of punishment but first it starts by giving justification as to why punishment is
relevant under the criminal justice system.

16.3 Necessity of Legal Punishment

Punishment plays an extremely important role in the criminal justice system. It is through this
mechanism that the law is capable of safeguarding society from offenders. Through the
removal of the offenders, either temporarily or permanently the law functions as a means of
safeguarding of society. Society is only truly protected when there is near certainty of
apprehension and conviction upon the commission of an offence. Without the element of
punishment, the criminal justice system would be rendered a mere academic exercise as
criminals would be free to go back into the community and cause more harm. It must be
observed also that punishment is regarded as a response to an accused’s wrongful behavior and
it indicates by punitive means that the accused has done something wrong. The punitive nature
of the sanctions confirms that the accused has done something legally prohibited by criminal

191
Retrieved from https://www.onlinejournal.in/IJIRV2I8/014.pdf on the 11th of November 2018
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law. The necessity of punishment will become more apparent as we explore the various theories
of punishment hereunder.

16.3.1 Retribution

Retribution is the practice of "getting even" with a wrongdoer whose suffering is seen as good
in itself, even if it has no other benefits. Punishment is meted out to the offender because this
is what he deserves in response to his infraction of the criminal law.192 Retribution reflects
society's desire for vengeance. It is a long standing position that when people join together in
a society governed by law, they relinquish their own right to retaliate to harm done to them in
exchange for the protection which the law offers them.193 In this vein, Michael Allen quoting
a passage from Gross in his renowned book Theory of Criminal Justice observes as follows:
“But society requires that this right [to repay harm with harm] be surrendered
by its members, and in exchange undertakes to protect them by laws that can be
effective only if violations are punished. The bargain that is struck, then, places
a moral obligation on society to punish crime as it places a moral obligation on
its members to refrain from breaking the law.”194

The punishment inflicted, however, must not represent a blind act of vindictive retaliation; it
must be both reasoned and reasonable. The punishment the criminal deserves, of course, must
bear some relationship to the harm he/she has caused. Ergo, punishment can only be considered
reasonable where the courts respect the concept of proportionality. 195

16.3.2 Denunciation

Vengeance or retaliation is only one aspect of punishment. A further element is that of

denunciation. The infliction of punishment signals society's disapproval of the criminal's
conduct and reaffirms the values the criminal law is designed to uphold. This reflects the more
modem view of the appropriate place for punishment in the criminal justice system. In R v.
Sergeant,196 a case that was concerned with violate crimes, Lawton LJ, after rejecting the idea
of 'an eye for an eye', was of the view that:
“. . . society, through the courts, must show its abhorrence of particular types of
crime, and the only way in which the courts can show this is by the sentences
they pass. The courts do not have to reflect public opinion. On the other hand,

192
Ibid, 4
193
Ibid, 4
194
Michael Allen, supra note 2 at p. 4
195
Ibid.
196
R v. Sargent (1974) 60 Cr App R 74, at p. 77
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they must not disregard it. Perhaps the main duty of the court is to lead public
opinion. Anyone who surveys the criminal scene at the present time must be alive
to the appalling problem of violence. Society, we are satisfied, expects the courts
to deal with violence .... Those who indulge in the kind of violence with which
we are concerned in this case must expect custodial sentences.”
16.3.3 Incapacitation

Another fundamental function that the punishment serves is that of incapacitation. If a term of
imprisonment is imposed on an offender, the public are protected from further offences by
him/her for so long as he is in prison.197 In R v. Sargent it was observed that for some offenders
deterrence or rehabilitation does not work as they will go on committing the crimes as long as
they are able to do so. In such cases the only solution is to lock such persons up for a long
period of time.

16.3.4 Deterrence

Aside from retribution punishment serves to deter would be offenders and those who have
committed offences from reoffending. However, in recent times the effectiveness of criminal
as a deterrent especially for repeat offenders has come into question. It is difficult to assess the
effectiveness of individual deterrence. Some offenders may never offend again even if they are
not caught or punished; others may only be deterred where the punishment imposed is so severe
that it is out of all proportion to the gravity of the wrongdoing. In relation to general deterrence,
courts, in the past, sometimes imposed exemplary sentences to deter others where an offence
had become prevalent or was particularly grave.198
Thus, while judges may associate severe sentences with deterrence, such connections are not
always entirely valid. On the contrary, the most commonly drawn inference from research
studies is that the probability of arrest and conviction is likely to deter potential offenders
whereas the perceived severity of the ensuing penalties has little effect. 199 The role of
deterrence in the criminal process is, therefore, a limited one; those who are set on committing
crime may not be deterred by the criminal law. Whereas for most members of society, however,
the criminal law may serve to educate them on acceptable and unacceptable conduct creating
thereby unconscious inhibitions against offending.200
Deterrence operates at three different levels; which include:

197
Michael Allen, supra note 2 at p. 6
198
See, Wilson and Tutt (1981) 3 Cr App R (S) 102; Poh and To (1982) Crim LR 132.
199
Michael Allen, supra note 2 at p. 5
200
Ibid, 6
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i. Individual deterrence. The role of the sentencer is to focus on the future & impose a
sentence which is likely to have the most impact on the individual.
ii. Public deterrence. Offenders are punished in order to discourage others from
committing crimes. Therefore, punishment is held as an example of what would happen,
should they others in similar activities.
iii. Educative deterrence. The public is educated over what is good and bad conduct. For
instance, every time somebody is punished for defilement the public morality that
defilement is wrong is strengthened and our habit of not committing the offence of
defilement is reinforced.

16.3.5 Rehabilitation/ Reformation

This theory is intended to modify the undesirable behavior of the criminal. It thus assumed
that the state’s interest now embraces not only the offender’s conduct but his soul, motives, his
history and his social environment.201 In this regard, conviction and sentence must aim at
reforming or rehabilitating the criminal so as to make him or her conform to the acceptable
standards of behavior in the society in which they are members. The state is interested in the
offender’s welfare hence the imposition of a sentence may at times not concern itself with the
seriousness of the offence committed, as it is the welfare of the offender that is of concern.
Accordingly, the offender is considered as a redeemable person who deserve a second chance.

16.4 Activity

QUESTIONS FOR DISCUSSION

1. Explain what is meant by each of the following ways of justifying the punishment
of the offender using examples to illustrate theory where relevant.
i. Retribution
ii. Deterrence
iii. Incapacitation
iv. Rehabilitation
2. With the aid of not less than four cases show how the courts have applied these
theories.

201
Francis Allen, Decline of the Rehabilitative Ideal; Penal Policy and Social New Haven (New Haven
Connecticut, Yale University Press: 1981)
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UNIT SEVENTEEN

PRINCIPLES OF SENTENCING

17.1 Objectives

By the end of this section the student must be able to:

 Show an understanding of the principles of sentencing;
 Appreciate the purpose of sentencing principles; and
 Demonstrate knowledge of the various forms of punishment imposed by the courts in
Zambia.

17.2 Introduction

According to Black’s Law Dictionary a sentence is the judgment that a court formally
pronounces after finding a criminal defendant guilty; it is the punishment imposed on a criminal
wrongdoer.202 It has been observed that effective sentencing strives for fairness and
consistency, therefore, courts impose similar sentences to similar offences. There are a number
of factors that guide the court in sentencing in order for the courts to arrive at a particular
punishment that best suits the offence committed. These section discusses these factors and the
purpose they serve. Likewise, the section discusses the types of punishments in Zambia.

17.3 Principles of Sentencing

Magistrates and Judges are vested with a wide discretion to choose among the different types
of punishment except where the Penal Code and other statutes fix in a sentence in which case
the trial court cannot exercise discretion. In most cases, the imposition of punishment on a
wrongdoer by judges reflects the various principles of punishment discussed above. Some
judges lean towards deterrent theories, others on retribution, while others focus more on
rehabilitation theories. This is said to be one of the sources of inconsistency, at times, even in
cases decided on similar facts. To curb such inconsistencies, the Chief Justice Law, as he then
was, in The People v. Nsokolo 203established five guidelines which were later approved by the
Supreme Court in the case of The People v. Tenson Chipeta204

202
Bryan A. Garner (Ed.), Black’s Law Dictionary (8th Ed) (St. Paul, Minnesota, West Publishing Co: 2004), 1484
203
The People v. Nsokolo (1940) NRLR 85
204
The People v. Tenson Chipeta (1970) SJZ 189
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According to Chief Justice Law in determining the appropriate sentence and the maximum
penalty that is considered proportionate to the offence committed the court must take the
following in consideration:
i. Intrinsic value of the subject matter. The sentencer must take into consideration the
nature and intrinsic value of the matter involved in the offence. In The People v.
Kabongo205the accused was sentenced to fifteen years for aggravated robbery where a
firearms were used and two people were injured. The supreme court held that the
imposition of a minimum sentence of imprisonment was insufficient because of the
use of offensive and dangerous weapons. Additionally, In The People v. Siyauye206
the accused was convicted for unlawful possession of a firearm with ammunition. He
appealed against a sentence of three years with hard labour. His appeal to the Supreme
Court was dismissed. The courts rationale was that Parliament did not consider
unlawful possession of firearms with ammunition a trivial offence and that the court
would be failing in their duty were they did not deal with this kind of offence severely.
ii. Antecedents of the accused. This refers to the history, character and previous criminal
record of the accused person. The question often asked here is whether the offender is
a first time offender or a persistent offender. It should appear that the superior courts
often show leniency to first time offenders by imposing less severe sentences. For
instance, in Phiri v. The People207 Gardener J opined that ‘a lenient sentence will be
was sufficient to teach a previously honest man a lesson.’ By implication it can be
concluded from the latter that a persistent offender must be dealt with in a harsh manner
so as to prevent and deter them from re-offending. However, However, The People v.
Mwenya208 it was observed that a bad record did not call for imposing of an excessive
sentence more than that which was warranted by the offence.
iii. Youth of the accused. This speaks to the age of the offender. In The People v.
Mvula209 the court took the view that incarceration was not the ideal way of dealing
with a youthful offender.
iv. Conduct of the accused at the trial particularly with regard to his plea. A guilty
plea saves the courts time and those undertaking investigations.

205
The People v. Kabongo (1974) ZR 83
206
The People v. Siyauye (1976) ZR 253
207
Phiri v. The People (1970) SJZ 178
208
The People v. Mwenya (1973) ZR 6
209
The People v. Mvula (1976) ZR 253
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v. Prevalence of the particular crime in the neighborhood. An increase in the

incidence of the particular crime may lead to courts to impose a severe penalty on the
accused as a deterrent measure and as a means of safe guiding the interest of the public
as a whole. This principle it can be said is premised on public interest. However, in
The People v. Kalyata210the Court of Appeal held that a person could not, and should
not, be sentenced based on the fact that the trial judge considered him to be a threat to
society.
Note: On appeal the High Court, Court of Appeal and the Supreme Court may exercise the
powers conferred upon them to either increase or reduce the sentence imposed by the lower
court, or may such sentence or make such other order as the as the trial court was supposed to
impose or make. See The People v. Alubisho (1976) ZR 11.

17.4 Purposes of sentencing principles

The fundamental purpose of sentencing principles is to ensure that there is fairness and
consistency in how courts impose sentences. These principles set out the parameters which the
judge must follow in meting punishment on a wrongdoer. They are guidelines that that the
judge must follow. It must be observed also that these principles curb the judge’s discretionary
powers to sentences however he/she may feel is necessary. By so doing, the principles create a
sense of fairness and consistency.

17.5 Types of punishment in Zambia

According to section 24 of the Penal Code the courts may inflicted impose the following
punishments:
i. Death. The Court can impose the death sentence is situation where the Penal Code
requires a mandatory death sentence. For example, offences under section 43(1)
(Treason), and section 294(2) (aggravated robbery with firearms) impose a mandatory
death sentence. In such cases the court has no choice but to impose the prescribed
punishment. Note, however, that section 26 of the Penal Code excepts persons below
18 and pregnant women from the death sentence. Where the death sentence is imposed
the person so sentenced is hanged by the neck until death. See section 25 of the Penal
Code.

210
The People v. Kalyata (1972) SJZ 62
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ii. Imprisonment. Imprisonment may be with or without hard labour except where the
law provides otherwise (See section .26). In instances of rape or attempted rape and
manslaughter persons convicted are liable to life imprisonment. Nonetheless, the court
has discretionary powers under section 26 (2) to imposed a lesser sentenced to persons
liable for life imprisonment. In certain circumstances, persons convicted of a felony
may be sentenced to pay a fine in additional to imprisonment exception manslaughter
(section 26(3). Additionally, a person convicted of manslaughter or a misdemeanor may
be sentenced to pay a fine in addition or instead of imprisonment (section 26(4).
In exceptional circumstances, Parliament through minimum & maximum term controls
the discretion of the court. This is often the case for sexual offences & aggravated
assault with intent to steal. Note also that there are certain provisions where Parliament
does not stipulate imprisonment term to be imposed. See the offence of aiding soldier
or police in acts of mutiny above. In such instances, judges may exercise judicial
discretion.
When an accused is convicted on several counts on one indictment or of several
offences in different indictments the court has to decide whether to impose a current or
consecutive sentence. By concurrent sentence it is meant that the defendant may serve
all the sentences at the same time while a consecutive sentence implies that the
defendant must finish serving the sentence of one offence before starting to serve
another. Section 15 of the Criminal Procedure Code provides for the powers of the
courts to impose with a concurrent of consecutive sentence.
iii. Order for community service.
iv. Fine. A person that has been convicted by the court may be sentenced to pay a fine. In
the imposition of this punishment the sentencer must take into account the severity of
the offence and the offenders ability to pay. However, where there is an absence of
express terms as to the amount to be imposed the court has the discretion in determine
what fine is to be imposed. There tendency is to impose an imprisonment where one
fails to pay a fine. This as there are people in certain sections of our society that cannot
afford to pay fines. Instead a suspended sentence would be more fitting as was ruled in
The People v. Peter Kalyonbwe.211
v. Forfeiture;

211
The People v. Peter Kalyonbwe (1978) ZR 294
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vi. Payment of compensation;

vii. Finding security to keep the peace and be of good behavior, or come for judgment.
viii. Deportation. Deportation can happen within or outside the country. Deportation
outside the country applies to foreign nationals while it can happen within the country
in cases where a felony is committed. in such cases, the High Court may in addition to
any punishment imposed recommend to President that the person charged be deported
to a particular part of Zambia (section 34).
ix. Any other punishment provided by this Code or by any other law. Suspended sentence
and probation and any other sentence not expressly stated above apply here.

17.6 Suspended Sentence

The implication of a suspended sentence is that a prisoner’s sentence is deferred and that the
prisoner is only expected to serve the sentence if he/she violates the terms of the suspended
sentence. The court may set the conditions of the suspended sentence. In addition, the court
must explain in clear terms the conditions of the suspension and the consequence of violating
the conditions. A suspended sentence may apply to a sentence of imprisonment except those
punishable by death, robbery, or any other office in which there is a prescribed minimum by
law. In terms of section 16 of the Criminal Procedure Act a suspended sentence cannot be
imposed for a period not exceeding three years.
Massissani v. The People212 set out the rationale for suspended sentence. In that case Silungwe
CJ, as he then was, opined that:
“The court should take into account whether suspension would leave the
offender at large and thereby constitute a danger to the public. In this case
suspension would not be allowed. But if suspension would provide an indirect
means deference then suspension should be considered. In addition, other
factors such as the prisoners previous good character, he is in regular
employment, he is a student, or a mother of young children. If anyone of those
factors is established, the court should prefer suspension. However, each case
must be taken on merits.”
Similarly, in Mbanga v. The People213 Silungwe CJ observed that the utility of a suspended
sentence is that it encourages an offender to behave well in the future.

212
Massissani v. The People (1977) ZR 234
213
Mbanga v. The People (1973) ZR 186
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17.7 Probation

Probation is a means of facilitating the reintegration of the offenders back into society.
Therefore, the prisoner escapes the negative aspects of imprisonment. Some have argued that
this reduces the financial burdens on the state. In Zambia, the use of probation as a mode of
punishment is governed by the Probation of Offenders Act Cap 93of the laws of Zambia.
Accordingly, section 3 of the Probation of Offenders Act stipulates the factors that court must
take into consideration are when making a probation order in relation to an offender. Note that
the custom of the Zambian courts has been to impose this sentence in relation to juveniles
(young offenders).

17.8 Activity

QUESTIONS FOR DISCUSSION

6. Give a brief summary of the sentencing principles.
7. What does the principle of proportionality entail?
8. Differentiate between concurrent and consecutive sentences.
9. What is a Probation Order?
10. Are fines discriminatory and why?
11. When should the court exercise leniency and what principles should guide the
court?

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BIBLIOGRAPHY

Books
Allen, Francis. Decline of the Rehabilitative Ideal; Penal Policy and Social New Haven (New
Haven Connecticut, Yale University Press: 1981)
Allen, Michael. Textbook on Criminal law (New York, Oxford University Press: 2001)
Bryan A. Garner (Ed.), Black’s Law Dictionary (8th Ed) (St. Paul, Minnesota, West Publishing
Co: 2004)
Ducket, Bob. Concise Oxford Dictionary (11th edn) (Oxford, Oxford University Press: 2004)
Groves, Matthew and H. P Lee. Australian administrative law (Cambridge, Cambridge
University Press: 2007)
Holmes, Oliver Wendell. The Common Law (Boston, Little Brown: 1963)
Jefferson, Michael. Criminal Law (9th edn) (London, Pearson Education Limited: 2009)
Kulusika, S.E., Criminal Law in Zambia Cases and Materials (Lusaka, Multimedia
Publications: 2005)
Smith & Hogan, Criminal Law (13th edn) (Oxford, Oxford University Press: 2011)
Walton, Douglas N., Legal Arguments and Evidence (Pennsylvania, The Pennsylvania State
University:2002)
Williams, G. Textbook of Criminal Law (4th edn) (London, Sweet & Maxwell: 2005)

Online Publications
www. wikipedia.com
Retrieved from https://www.onlinejournal.in/IJIRV2I8/014.pdf on the 11th of November 2018
Asif Tufal, “Principles of Criminal Liability”, retrieved from www.lawteacher.co.uk
Reports
The Wolfenden Committee, Report of the Committee on Homosexual Offences and
Prostitution (1957)
Journals
Corrado, Michael. “Is There an Act Requirement in the Criminal Law?” University of
Pennsylvania Law Review. Vol 142 (1994)

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