Unit 6 - Homicide

Learning Outcomes
• By the end of the lesson, you should be able to define the basic elements
of the offences of murder, manslaughter & infanticide;
• You should be aware of the defences that are specific to the offence of
murder; and
• Be able to apply to them to various scenarios.
 Homicide
• In practical terms the accused is alleged to have committed one of the
following serious offences; murder, manslaughter, infanticide, genocide,
causing death by reckless or dangerous driving. This form of causing
death to another is referred to as unlawful Homicide.

• In CL persons who cause the death of another person are not charged
with Homicide – they are charged with murder or a lesser offence
manslaughter
Homicide Cont’d
• Murder & manslaughter – have the same unlawful conduct – causing
death (AR)
• However state of mind (MR) of the accused (A) at the time of killing is
different
• Murder A intends to kill or cause grievous harm
• Manslaughter A might have been reckless or negligent in causing death of
the victim
Murder- Definition - Institutes of the Laws of England, 1797):

- Absence of definition of murder in the PC

Chief Justice Coke defines murder as follows;

Murder is when a man of sound memory & the age of discretion

unlawfully killeth… any reasonable creature in rerum natura under the
king or queen’s peace with malice aforethought,….so as the party
wounded or hurt etc., die of the wound or hurt etc….
Features of Coke’s definition of Murder
(i) Sound memory & age – excludes insane persons, persons below the
age of eight & those between the age of 8 & 12 in exceptional
circumstances
(ii) reasonable creature – human being
(iii) rerum natura – ‘in being’ raises issues in relation to the fetus – such as
at what stage do we treat an unborn child as a human being?
A child becomes a person capable of being killed when it has completely
proceeded in a living state from the body of its mother - S208 PC
Features of Coke’s definition of Murder
Cont’d
(iv) 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
Features of Coke’s definition of Murder Cont’d
(v) unlawfully killeth – The killing must be unlawful – therefore the killing of
a human being in self defence or prevention of crime is accepted

Killing undertaken by an officer when they are lawfully executing their duty,
killing as a result of medical operation – provided that set
procedures/requirements are met.
The Law of murder
• S200 PC – under the section murder is committed when a human being
kills another being with the most blameworthy state of mind
• S201 PC – punishment for murder is stipulated as (i) life imprisonment or
• (ii) any sentence other than life imprisonment if there are extenuating
circumstances.
• extenuating circumstances would be considered based on applying the
reasonable man test – standard of behaviour of an ordinary person of the
community which the convicted person belongs)
• The people v. Njovu (1968) ZR 132
• In order for the D to be charged of murder three factors had to be
established:
o That the D caused the death of the deceased
o By an unlawful act &
o
Murder- Actus reus (AR)
• S200 death of another person has to be as a result of an unlawful act or
omission
• AR - unlawful act or omission - causes death
• The homicide in the unlawful killing of a human being by another human
being death needs to occur within a year & a day of D’s acts (S209 (i)) PC

• A person is not deemed to have killed another if the death of that person
does not take place within a year & a day of the cause of death
Mens rea of Murder - I
• Malice aforethought- most blameworthy state of mind or the intent to
cause grievous bodily harm
• Malice aforethought according to the case The people v. Njovu as per
Chief Justice Blagden ‘relates to the state of mind of the accused person at
the time he caused the death of the deceased’
• S200 PC a person can only be convicted of murder if there is the existence
of malice aforethought.
• MR of murder – S204 PC sets out three kinds of malice aforethought &
proof of any one or a combination will satisfy the requirements of proving
mens rea beyond reasonable doubt leading to a conviction of the accused
Mens rea of Murder - II
(I) Express malice – s204(a) – intention to cause death or do grievous
harm – See: Lesley Mutale v The People [2018] ZMSC 364
• Mbewe v People [2022] ZMSC 33
(II) Implied malice - s204(b) knowledge that act or omission is causing
death or led to death or grievous harm – see
o Dickson Sembauke Changwe And Ifellow Hamuchanje V The
People (1988 - 1989) Z.R. 144 (S.C.);
o Mbomena Moola V The People SCZ Judgment No. 35 OF 2000).
(III) Constructive malice - s204(c) intent to commit a felony – involves
statutory interpretation leading to establishing a causal link - It is
present if the D causes death while committing or attempting to
commit a felony - Chitenge v. The people (1966) ZR 37
The Punishment for murder
• According to s. 201 of the PC, the punishment for the offence of murder is
life imprisonment.
• However, if there are extenuating circumstances, the convicted person is
liable to any other sentence but life imprisonment.
• See s. 201 (2) of the PC for the definition of an extenuating circumstance -
any fact associated with the offence which would diminish morally the
degree of the convicted persons' guilty.
• Kanyanga v the People (Appeal no. 145/2011) [2012] ZMSC 77- It was
contended that remorse is not and does not amount to extenuation; see
also how the court interpreted s.201 of the PC
• In Jack Chanda and Kennedy Chanda v the people SCZ 29 of 2002 – the
court held that:
o Failed defence of provocation; evidence of witchcraft accusation; and
evidence of drinking can amount to extenuating circumstances
Extenuating Circumstances Cont’d

• Jose Antonio Golliadi v The People, SCZ Appeal No. 26 of 2017 –

• the court should not merely find extenuating circumstances merely
because the accused person was drunk. They must rather consider the
peculiar facts instead of applying drunkenness as an extenuating
circumstance in every single case which would lead to injustice.
• Kapesh and Another v People (Appeal No. 99/100/2015) [2017] ZMSC
94–
• for the belief in witchcraft to suffice as an extenuating circumstance, it
must reach the threshold of provocation.
• Whiteson Simusokwe V The People (SCZ Judgment No. 15 of 2002).
• A failed defence of provocation affords extenuation for a charge of
murder.
Further case law
• Precious Longwe v The People (CAZ Appeal No. 128 of 2017) - failed
defence of self-defence can amount to an extenuating circumstance
o Matthew Nyirenda V The People (1977) Z.R. 425 (S.C.)
o Justin Mumbi V The People (2004) Z.R. 106 (S.C.)
Manslaughter - I
• AR for Manslaughter & murder is the same (look at s200 PC)
• S199 - any person who causes death of another person by an unlawful act
or omission is guilty of a felony termed manslaughter.
• AR- unlawful act or omission - causes death;
• For an act to be regarded as unlawful both actus reus & any necessary
mens rea must be present;
• In manslaughter of every kind there must be a guilty mind (mens rea)
without it the A must be acquitted - R v. Lamb (1967) 2 QB 981.
Manslaughter- II
• S199 provides an explanation as to when the offence of manslaughter is
said to have been committed.
• There is no definition of manslaughter; Manslaughter is a felony.
• S199 – accordingly ‘an unlawful omission is an omission amounting to
culpable negligence to discharge a duty of preserving life or health’
• It is based on failure to perform with due care in order not to endanger a
life or health
• S202 – penalty of manslaughter is stipulated – maximum life
imprisonment
Manslaughter - III
• There are two types of Manslaughter; Voluntary Manslaughter &
Involuntary Manslaughter
(i) Voluntary Manslaughter – This is where the A kills another person with
the MR of murder but is not guilty of murder because A killed under
provocation or Diminished Responsibility which operates to reduce
blameworthiness to manslaughter.
Provocation
• See S.205, 206 PC
• If a man kills another in consequence of reacting to sudden provocation
and he so kills in the heat of passion and before there is time for his
passion to cool his guilt of manslaughter only.

• His mode of resentment must bear a reasonable relationship to the

provocation. If the mode is out of proportion to the provocation, then the
principle in (1) above is not available to him; and

• A wrongful act or insult is not provocation unless it is such as would

deprive an ordinary person (of the community to which the man who kills
belongs) of the power of self-control and induce him to assault the person
who does the wrongful act or utters the insult.
Provocation Cont’d
• Liyumbi v The People (1978) Z.R. 25 establishes the three elements of
provocation as follows:
1. the act of provocation;
2. the loss of self-control; both actual and reasonable,
3. and the retaliation proportionate to the provocation.
Simutenda v the people (1975) Z.R 294 (S.C)
• Provocation consists mainly of three elements - the act of provocation,
the loss of self-control both actual and reasonable, and the retaliation
proportionate to the provocation. These elements are not detached.

• The question is not merely whether an accused person was provoked into
losing his self-control but also whether a reasonable man would have lost
his self-control and would have acted as the accused did.

• The question of provocation must be approached without considering

that an accused person's ability to control his reactions may have been
significantly reduced as a result of his consumption of alcohol.
1. The Provocative Act
• The accused person has to show that there was an act of provocation –
see: Mbuyu Kailo v The People [2020] ZMCA 68.
• Malangisha Kapwepwe v The People CAZ Appeal No. 59 of 2018 - the
defence of provocation could not succeed because there was no
provocative act.
• Daudi Phiri v The People (SCZ Appeal No. 192 of 2014)
• Makomela v The People (1974) Z.R. 54 – the Court after determining
that indeed there was a provocative Act should go further and
determine whether the stimulus to which the accused reacted as he is
proved to have done would have had the same effect on a reasonable
man (object test and not subjective).
2. loss of self-control; both actual and
reasonable
• Munkala v The People (1966) Z.R, 12 - For provocation to reduce murder
to manslaughter, it must be 'sudden’.
• the assault so induced must be committed before there is time for the
accused's passion aroused by the provocation to cool.
• See - Mupota V The People (1976) Z.R. 212 (S.C.)
3. the retaliation proportionate to the
provocation
• 205 (2) of the Penal Code states that the provisions of the said section shall
not apply unless the court is satisfied that the act which causes death
bears a reasonable relationship to the provocation."
o Liyumbi v The People, (1978) Z.R. 25.
o Simutenda v The People (1975) Z.R. 294
o Tembo v The People (1976) Z.R. 332 (S.C.) -Whether defence is
available where victim is someone other than the provoker
 Cases
• Mwiimbe v The People (1986) Z.R. 15 - held that evidence of cumulative
provocation in the absence of immediate provocation cannot suffice to
establish the three vital elements of the defence to stand.
• Kalinda v The People (1966) Z.R. 29 - In Zambia, a confession of past
adultery or of intention to commit adultery is as serious provocation as
being discovered in flagrante delicto.
• Mvula V The People (1990 - 1992) Z.R. 54 (S.C.) - Accused attempting to
create provocation - Cannot rely on same;
• Chinyange Muyenga V The People S.C.Z JUDGMENT No. 14 OF 2009
Cases

• Tembo V The People (1972) ZR 22 where it was held that an argument

which eventually resulted into a fight can amount to provocation
sufficient to reduce murder to manslaughter.
o Issac Shafwamba & Others v The People [2020] ZMCA 84 (31 August
2020)
 Diminished Responsibility
• Defence of Diminished Responsibility is introduced under sec 12A of PC
• However a successful defence of diminished responsibility does not lead
to an acquittal
• It reduces murder to manslaughter
• Defence is only available to the offence of murder
 Diminished Responsibility cont’d
• Defence of diminished responsibility is intended to provide a partial
excuse for offenders with mental disorders who could not rely on sec 12.
• In order for defence to be accepted by Court, three elements must be
proved (under S12A).
1. X must be suffering from an abnormality of mind.
2. This must be due to one of the causes enclosed under sec 12A(1) PC –
Thus (i) condition of arrested development of mind or (ii) a condition of
retarded development of mind or (iii) any inherent, or induced by disease
or (v) induced by injury.
3. Any one of these causes or conditions has substantially impaired D mental
responsibility.
 ‘Abnormality of Mind’
• In order to establish Abnormality of Mind medical evidence is required ( R
v. Byrne [1960] 3 ALL ER 1.)

• Abnormality of mind Lord Packer, in R v Byrne (1960) …… ‘Abnormality of

mind… means a state of mind so different from the ordinary Human
beings that the reasonable man would term it abnormal.

• Abnormality of mind could include depression, jealousy & other

conditions which have the capacity of reducing the A’s will power to
control actions.
 ‘Substantial impairment of responsibility
• substantially impairment of responsibility suggests at least two
requirements must be met.
1. The abnormality of the mind had substantial effect on the accused
capacity of judgement & understanding or control.
2. Such a condition reduces in a substantial way, the accused
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.
Cases

• Mvula V The People (1990 - 1992) Z.R. 54 (S.C.) - For the defence of
diminished responsibility to succeed, the defence must prove, on a
balance of probabilities, that the accused's mental responsibility for his
acts or omissions in doing, or being a party to, the killing of another was
substantially impaired
o Benard Hamwinga v The People [2020] ZMCA 14
o Mwabuka v The People [2014] ZMSC 29
o Ahluwalia, R v [1993] (1993) 96 Cr App R 133
o R v Dietschmann [2003] UKHL 10
Involuntary Manslaughter
• this is the unlawful killing when D does not have any intention to kill or to
cause grievous bodily harm. The lack of intention is what distinguishes it
from murder
• It is also important to know that it is different from Voluntary
Manslaughter where D has the intention but due to circumstances they
are able to use one of the special defences.
• Involuntary manslaughter is committed where death results from an
unlawful act which any reasonable person would recognize as likely to
expose another to the risk of injury; and where death is caused by
reckless or grossly negligent act or omission.
• Accidental killing is excluded as a crime of manslaughter – see The People
v Nkata (1972) Z.R. 296 (H.C.)
Involuntary Manslaughter Cont’d
Manslaughter By Unlawful Act - The offence of manslaughter does not
consist simply in an unlawful act resulting in death; the act must at the
same time be a dangerous act, that is, an act which is likely to-injure
another person;
• The unlawful act must be such as all sober and reasonable people would
inevitably recognise must subject the other person to at least the risk of
some harm resulting therefrom, albeit not serious harm.
• See - John Mpande v the people (1977) Z.R 440
Recklessness - The question is did D foresee the risk of serious injury as
highly probable and decide to take the unjustified risk of such harm
occurring anyway?
• See the following cases:
o Constain Hamwenda v The People (1980) Z.R. 63 (S.C.)
o People v Muzungu (2011) ZMHC 54
Involuntary Manslaughter Cont’d
Negligence - In order for a D to be convicted for killing by gross negligence
the following requirements must be satisfied;
1. Breach of a duty of care owed by the D to the victim
2. That breach ( which was grossly negligent) caused the death of the
victim ( or caused grievous bodily harm); &
3. That breach was more than serious to constitute gross negligence
• Above is regarded as the principle of Bateman -R v Bateman (1925) 19 Cr
App R 8
• The principle was however endorsed in
o Andrews v DPP [1937] AC 576
o R v Adomako [1995] 1 A.C
 Cases
• See the following cases:
o The People v Zulu (1968) Z.R. 88;
o Joel Chikubabe Lungu v The People (1985) Z.R. 155 (S.C.);
o Kambarage Mpundu Kaunda v the People (1990/92) Z.R 215;
o Probby Muniyati & Another v The People [2020] ZMCA 13
Infanticide
• See s.203 PC cap 87
o Where a woman causes the death of her child by a wilful act or
omission
o Child needs to be under the age of twelve months
o At the time of act or omission balance of her mind must have been
disturbed by reason of her not having fully recovered from effect of
child birth or lactation
o Such a woman is guilty of a felony infanticide
o Liable to be punished as if it were the offence of manslaughter
Infanticide- II
• Need evidence to establish that birth of the child has affected the balance
of mind of the mother or due to lactation that she causes the death of
child
• See - Rosemary Chilufya v The People (1986) Z.R. 32 (S.C.) -
infanticide is an offence committed as a result of disturbance of the
mind caused by the stress of birth.
• Emelda Mwanza v The People [2018] ZMCA 337
• See S221 – Child destruction – any act not done in good faith for the
purpose of preserving the life of the mother
• Woman has to be pregnant twenty eight weeks or more