Criminal law - Murder - Manslaughter
INTRODUCTION
Homicide, the act of
unlawfully causing the death of another person, is a complex and deeply
sensitive topic in criminal law. It encompasses various scenarios, intentions,
and consequences making it a subject of great importance within the legal
system. This article aims to delve into the multifaceted nature of homicide,
examining the different legal perspectives surrounding this grave offense.
Homicide involves the deliberate taking of a human life but not all homicides
are considered criminal acts. The law distinguishes between justifiable
homicides, such as ones committed in the act of self-defense or defense of others, and unlawful homicides,
which encompasses murder and manslaughter. The key distinction lies in the
intent and the circumstances surrounding the act. In the ensuing paragraphs,
the above-mentioned will be critically analyzed and simplified using cases to corroborate
every facet of information opined.
HOMICIDE
This
refers to a situation where one or more human beings take the life of another
human being in a manner that is unlawful at law. In an unlawful manner simply
means that it is not permissible at law, which different from an executor killing a
human being sentenced with the death penalty by the courts of law or the killing
a human being in self-defense or prevention of a crime and killing because of
medical operation, considering the procedures are met accordingly. Therefore, for
homicide to occur the circumstances must be such that the killing is unlawful
at law. There is a plethora
of types of homicide; here we will only focus on three:
1. Murder
2. Manslaughter
3. Infanticide
It
is prudent to note that in Zambia a person cannot be charged with homicide but
rather with one of the above-mentioned three types. Hence, a person can be
charged with murder, manslaughter or infanticide.
MURDER
Due
to the lack of a definition in the Penal Code for murder, 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,… here it is
important to know the actus reus and mens rea of murder. Likewise, for an
accused person to be convicted of a criminal offence the principle is that it
must be proven that the accused had actus
reus, mens rea, and no valid defence.
Actus
reus: is one of the elements that has to be
proven to establish criminal liability for murder. The actus reus for murder can be inferred from Section 200 of the Penal Code. This Section states that any person
who with malice aforethought causes the death of another person by an unlawful
act or omission is guilty of murder. It
can be inferred from this Section that the actus
reus for murder is any unlawful act or omission that causes the death of
another human being. For instance, if
person A confronts person B during an argument and, in a fit of rage, grabs a
knife and stabs person B, resulting in their death, this act constitutes the
actus reus for murder. In this example, the actus reus is demonstrated through
the following elements:
1.
Physical Action, the act of physically stabbing
person B with the knife, which is the physical act that led to the death.
2.
Causation,
there is a direct link between the act (stabbing) and the result (person B’s
death). The action must be the cause of the person's death.
3.
Intent,
while actus reus focuses mainly on the physical act, it is important to note
the intent behind the action (in this case the intention to kill or cause
serious harm) can elevate the crime to murder, though the intent is considered
a separate element called mens rea.
The case of Monze v. The People [2017] ZMSC 4, exemplifies
the aforementioned, in this case, the appellant during an altercation with his
father-in-law hit him with an iron bar on his forehead. The father-in-law
suffered from severe head injuries and died due to these injuries. The
appellant was convicted of murder. As can be inferred from the case, the actus reus for this murder case was the
appellant’s unlawful act of hitting his father-in-law with an iron bar which in
turn caused his death. Thus, one fundamental principle in respect to murder is
that for criminal liability to be proven actus
reus must be established, by proving that the unlawful act or omission of
the accused caused the victim’s death. It can thus be inferred from this
section that actus reus for murder is any unlawful act or omission that causes
the death of another human being.
Mens
rea:
proving a person’s state of mind is not easy unless a confession is given by
the accused. In the absence of such confession, the jury or court will have to use
common sense ‘to draw inferences from the circumstances and the natural and the
probable consequences of the accused’s conduct in those circumstances.’ Malice
aforethought refers to the state of mind of the accused person at the time they
caused the death of the deceased, as was stated by Chief Justice Blagden in the case of The People v. Njovu [1968] ZR 132
(HC). A practical example of mens rea for murder can be illustrated through the
scenario of premeditated murder. In a situation where person A plans to kill
person B, for several days. Person A thinks about the murder researches methods
to carry it out and even purchases a weapon with the intent to use it. On the
day of the intended act Person A waits for person B and upon arrival person A
attacks and kills person B. In the example given mens rea can be broken down
into the following elements:
1.
Intent:
person A shows clear intention to kill person B. that is seen by the planning
and deliberation over several days which indicates a purposeful desire to end
the life of person B.
2.
Premeditation:
the fact that person A took time to think about murder and prepare for it
illustrates that it was not impulsive but rather the result of careful
consideration and planning.
3.
Knowledge:
person A is aware that his actions will likely result in death or serious harm
to person B, demonstrating an understanding of the consequences of their
actions.
Section 204 of the Penal Code
indicates that there are three types of malice aforethought. These are:
i)
Express malice
ii)
Implied malice
Iii) Constructive malice
Section 204(a)
indicates express malice, this is the intention to cause death or do grievous
harm. In the case of Matias Chitigwa Mugogo v. The People, [2020]
ZMSC 60 the appellant killed the victim by assaulting him and
strangling him until he died. The appellant was convicted of murder. As can be
inferred from the case, it is evident that there was express malice. This is
because the appellant had intended to cause the death of the victim and this
can be seen from the proven fact of the appellant strangling the victim until
he died. Accordingly, express malice was present.
Section 204(b) goes a long way in showing implied malice. In accordance with this provision, implied malice refers to the knowledge that the act or omission causing death will probably cause death or grievous harm to some person. For example, in the case of Mbomena Moola v The People, [2000] ZMSC 47 the appellant put paraffin in some Maheu made by his mother in order to kill his father. His father drank the Maheu and died. The appellant was convicted of murder. As can be inferred from the case, it is evident that there was implied malice. This is because it is a well-known fact that paraffin is poisonous. Correspondingly, it can be implied that the appellant was knowledgeable of the fact that the paraffin would probably cause the death of his father. Thus, implied malice was established.
Section 204(c) of the
Penal Code indicates constructive malice. In
accordance with this provision, constructive malice refers to the intent to
commit a felony. In establishing constructive malice there must be a causal
link between the felonious act and the victim’s death, as it must be proven
that the victim’s death was because of the accused committing or attempting to
commit the felony. For example, in the
case of Chitenge v. The People, [1966] ZR 37 the appellant set another
person’s house on fire without inquiring if anyone was inside. However, someone
was inside and died as a result of the fire. He was convicted of murder.
It is prudent to note that it is not necessary to prove all three types, proving either express, implied, or constructive is enough to establish ill intent and assert criminal liability.
ONE YEAR AND ONE DAY RULE
One fundamental principle with respect to murder is that for criminal liability to be established in accordance with Section 209(1) of the Penal Code is that the death of the victim must occur within a year and a day from the accused’s act or omission.
A more practical example is that party A is involved in a physical altercation with B and during this B is severely hurt and subsequently hospitalized. Despite receiving medical attention, B’s condition deteriorates over time due to complications from the injuries sustained in the altercation. If B ultimately dies exactly one year and one day after the altercation, the one year and one day rule comes into play. Under this rule A, may not be held to be criminally liable if the death occurs beyond the one year and one day rule threshold, as the law may consider that the injuries inflicted by A were not the direct cause of the death.
It is imperative to note that this rule has
been abolished or modified in many jurisdictions, and the focus is now often on
the concept of “proximate cause” rather than the strict time limit.
Nonetheless, the above example illustrates how this rule would have functioned
in a murder case.
MANSLAUGHTER
Another type of homicide is manslaughter. In accordance with section 199 of the Penal Code states that any person who causes the death of another person either by act or omission is responsible for the felony of manslaughter. The actus reus for manslaughter is the same as for murder which is the unlawful act or omission which results in the demise of a human life. It is prudent to comprehend what an unlawful omission is, accordingly, it is the failure to operate or act with due care to preserve life. In manslaughter of every kind there must be a guilty mind without it the accused must be acquitted, this position was established in R v. Lamb 1967 2 QB 981).
For
instance, person A and person B are close friends who get into an intense
argument at a social gathering. As tensions rise, person A, in a moment of
anger pushes person B who was standing near a staircase and unfortunately, loses
his balance and falls down the stairs. Resulting in severe injuries that
ultimately lead to their death. In this scenario, the actions of person A can
be classified as manslaughter because of the following:
1.
Lack
of intent to kill: Party A did not intend to kill person B, the act was a
result of a sudden emotional response rather than a premeditated plan to cause
harm or death
2.
Recklessness:
while pushing someone can be seen as an aggressive act, it may not constitute
murder because it lacks the intent to kill. However, it demonstrates a reckless
disregard for the safety of others, which is a key factor in manslaughter
cases.
3.
Causation:
there is a direct link between person A’s action (push) and the outcome (person
B’s death). The push, although not intended to be lethal, directly contributed
to the circumstances that led to the fatality.
The above example goes a long way to show that an act
of manslaughter can occur due to a lack of intent to kill but still result in a
tragic outcome that holds the perpetrator criminally liable for the loss of
life. In accordance with Section 202 of the Penal Code, the
maximum punishment a person guilty of manslaughter can be given is life
imprisonment. Thus, it is a less serious offence when compared to murder. This
is because someone guilty of murder can be given the maximum penalty of the
death sentence (this penalty however has since been abolished).
There
are two types of manslaughter, which are involuntary and voluntary manslaughter;
(i)
Under voluntary
manslaughter, the accused takes the life of another person unlawfully but
they did so under diminished responsibility or they were provoked. In relation
to diminished responsibility according to section 12A (4) of the Penal Code if
the accused manages to prove under the defence of diminished responsibility they
will not be responsible for the offense of murder but of manslaughter.
Likewise, section 205 of the Penal Code alludes that if an accused is
held to have unlawfully taken the life of another but they did so under
circumstances of provocation they will only be guilty of the offense of
manslaughter. Consequently, blameworthiness reduces from murder to the less
serious offence of manslaughter, in particular voluntary manslaughter. This is
strongly affirmed in the case of the People v Njovu (1968) ZR (HC).
(ii)
Involuntary Manslaughter
put simply here the accused unlawfully killed without having malice
aforethought. There are two types of
involuntary manslaughter; Gross negligence manslaughter and Unlawful Act/
Constructive manslaughter.
·
In Constructive
Manslaughter, the victim must have met his/her end because of the unlawful
criminal act. This unlawful criminal act has to be done intentionally or with
recklessness as the accused would have reasonably foreseen that the act would
more than likely cause harm. The Attorney General Reference (No. 3 of 1994)
(1998), established four requirements for the determination of liability in
constructive manslaughter and these include:
Ø the
criminal act was intentionally or recklessly committed
Ø the
act was unlawful
Ø the
act was dangerous
Ø the
unlawful and dangerous act caused the death
·
In Gross Negligence
Manslaughter, put simply death here the result of death from negligence will
accordingly be taken under tort law, and that which causes death because of
gross negligence will accordingly be handled under criminal law. In the case of
R
v. Adomako [1995] 1 AC 171 HL, here the patient who was on life support
connected to a machine got disconnected and the medical practitioner only
noticed it after nine minutes. Unfortunately, all efforts to resuscitate the
patient were in vain and he died due to cardiac arrest. The accused was
convicted of manslaughter (guilty of gross negligence) and appealed – the
appeal was dismissed. It is imperative to note that the medical practitioner
was guilty of gross negligence for failing to notice obvious signs that there
was a disconnection. A doctor can only be convicted of causing death by
negligence if the court thinks that he did something no reasonably skilled
doctor should have done. See also The People v Zulu (1968) ZR 88 (HC).
INFANTICIDE
There are two types of infanticide, active and passive, and these might result from postpartum depression, postpartum psychosis, extreme stress, or the belief that the death of the child will ease its suffering.
In an instance where, say, a young woman, party C has recently given birth. She is a single mother facing significant personal and social challenges, including mental health issues, lack of support, and overwhelming feelings of despair and isolation. After giving birth, she feels an intense emotional crisis and is unable to cope with the responsibility of caring for her newborn. In a moment of desperation, party C’s harms the infant, resulting in the child’s death. This act can be classified as infanticide under certain legal definitions, particularly if it is shown that there was emotional distress, a mother-child relationship, and intent (unlike murder, infanticide typically involves an absence of premeditated intent to kill. Instead, it focuses on the mother’s state of mind during the act, emphasizing the impact of her emotional turmoil).
In Zambia, the law on infanticide can be found
in Section 203 of the Penal Code cap 87
of the laws of Zambia. Where a woman by any willful act or omission causes
the death of her child, being a child under the age of twelve months, but at
the time of the act or omission the mother was disturbed mentally because she
had not recovered from childbirth or lactation. She will accordingly be charged
with the felony of infanticide. For this offense to be effectively established
upon the accused it must be ascertained that indeed the birth of the child caused
serious mind disturbance at the time of act or omission because she has not
recovered. See the case of Chilufya v The People (S.C.Z. Judgement 8 of
1996).
CONCLUSION
From the above, it
can be deduced that the consequences and circumstances surrounding homicide can
affect the legal interpretation and potential penalties. Factors such as
motive, the presence of aggravating or mitigating circumstances, and the degree
of harm inflicted all contribute to the determination of criminal liability. The
topic of homicide encompasses a wide range of legal perspectives from the
intent behind the act to the consequences that follow. Understanding the
nuances of criminal liability in homicide cases requires an examination of
intent, malice aforethought, and the circumstances surrounding the offences. By
exploring these legal perspectives, we can gain a deeper understanding of the
complex nature of homicide and the principles that govern its legal treatment.
REFERENCE
LIST
Statutes
The Penal Code, Chapter 87 of the Laws of
Zambia
Cases
The People v. Njovu
(1968) ZR 132 (HC)
Adomako (1994) 3 ALL ER
79 (HL)
The People v. Lawrence Mumanga (1985) ZR 35 HC
Attorney-General’s
Reference (No. 3 of 1994) (1998)
Cicuto v Davidson &
Oliver (1968) ZR 149 HC
The People v. Zulu (1968)
ZR 88 HC
Chilufya v The People
(S.C.Z. Judgement 8 of 1996)
R v. Lamb 1967 2 QB 981)
Chitenge v. The People,
[1966] ZR 37
Mbomena Moola v The
People, [2000] ZMSC 47
Matias Chitigwa Mugogo v.
The People, [2020] ZMSC 60
Monze v. The People
[2017] ZMSC 4
Books
Garner, Brian. Black laws legal dictionary.
(8th edn, 2004)
Herring, Jonathan. Criminal law. (New York,
3rd edn, Palgrave Macmillan 2002)
This Article is Brought to you by:
LEGAL AID INITIATIVE
(Access to Knowledge)
About the Authors:
Tinotenda K. Rukadza is a third year law student at the University of Zambia. He writes this in his individual capacity.
Natasha Ng'andu is a third year law student at the University of Zambia and serving as the Research Coordinator at Legal Aid Initiative.