MULUNGUSHI UNIVERSITY

SCHOOL OF BUSINESS STUDIES

DEPARTMENT OF LAW, LABOUR & HUMAN RESOURCE MANAGEMENT

GROUP MEMBERS: MEDAI SIBANDE

MUNDUKUTA CHIPUNGU (202110067)

DERICK

MONICA

PROGRAME: BARCHELOR OF LAWS

COURSE: CRIMINAL LAW II

COURSE CODE: BLL 221

LECTURER: MRS SIMFUKWE

DUE DATE: 13TH FEBRUARY, 2023

ASSIGNMENT QUESTION ONE: Brief facts are that one evening Y returned home
from a drinking spree drunk and exhausted. As it was his habit of brutally beating his
wife X. On the material date, he repeatedly told his wife that he was going to beat her
first thing in the morning next day. Later Y went to bed and slept leaving X wide
awake. Then X boiled water on the stove which she took and cast upon Y her husband
who was fast asleep on their matrimonial bed. Y sustained severe burns on his body and
10 days later he died.
 1. How viable is the defence of provocation given the facts above?
2. How viable is the defence of duress given the facts above?
3. How viable is the defence of diminished responsibility given the facts above?
4. If X be absolved of liability in this case if she had a history of mental illness?

Defence of provocation

It is not in dispute that X caused the death of Y after pouring hot water on the deceased when
he was asleep in their bed. However, in determining the defence of provocation which X
raised, it is important to look at the facts above and understand whether the said defence can
be satisfied as provided in section 205 of the Penal Code which provides that when a person
who unlawfully causes another under circumstances which, but for the provisions of this
section, would constitute murder, does the act which causes death in the heat of passion,
caused by sudden provocation as hereinafter defined and before there is time for his passion
to cool1.

In the case of Liyumbi v The People2, it was held that there are three inseparable elements
to the defence of provocation, namely; the act of provocation, the loss of self-control, both
actual and reasonable, and the retaliation proportionate to the provocation. All three elements
must be present before the defence is available. On the test laid down in Liyumbi's case, the
submissions in this regard, on the facts of the case, must fail for absence of all three elements.

The facts in this case do not suggest that X suffered sudden provocation or loss of self-control
by reason of Ys utterances beating X in the morning next day. X embarked on the
premeditated act by boiling water on the stove which took time to boil and later got the said
hot water and went to the bedroom and poured on the deceased. X was not deprived of her
self-control as she had time to cool down her passion, but choose to use the time to prepare
for water to boil. Furthermore, X’s retaliation was not proportionate, as the said Y was asleep
at the time of pouring hot water on him. The words of Y could not deprived a reasonable
person in the context of X self-control because the deceased went to sleep after uttering those
words that he was going to beat her next morning. The defence of provocation is not
available for the accused who premeditated to pour hot water upon Y the deceased.

1
Chapter 87 of the Laws of Zambia
2
S.C.Z Judgment No. 12 of 1978