Theories of Punishment

The Retributive Theory of Punishment, or the ‘Theory of Vengeance’, is a basic yet inconsiderate
theory of inflicting a penal sentence over a perpetrator. It is based on the doctrine of Lex talionis,
which means ‘an eye for an eye’. Two doctrines are related to this theory: The Doctrine of Societal
Personification and the Doctrine of Correctional Vengeance. On the Deterrent Theory of
Punishment, the term “Deter” means to abstain from doing any wrongful act. The main aim of this
theory is to “deter” (to prevent) the criminals from attempting any crime or repeating the same
crime in future.

According to this theory, if someone commits any crime and he/she is punished by severe
punishment, then the people of the society will be or may be aware of the severe punishments for
certain kinds of crimes and because of this fear in the minds of the people of the society, the people
may stop from committing any kind of crime or wrongful act. The preventive theory of punishment
seeks to prevent prospective crimes by disabling the criminals. Under this theory, the criminals are
punished by death sentence or life imprisonment etc. The utilitarian hypothesis of discipline tries to
rebuff guilty parties to debilitate, or “hinder,” future bad behavior. The Reformative Theory is a
hypothesis that the object of discipline ought to be the change of the crook, through the strategy for
individualization.

The theory of punishment being followed in Namibia to change the crooks as opposed to rebuffing
them is not that compelling in avoidance of the event of violations in Namibia. The essential idea of
law isn’t to be static but to be dynamic in nature. The Hypothesis of Discipline is a theory of
punishment that aims to make criminals languish over their bad behaviour. It is customized and
rotates around the mental outlet of the person in question or his family. The primary reason for
discipline is parole and probation, which have been acknowledged as current procedures of
improving guilty parties all around the globe.

Compensation is the main look out in the law of crimes, and the victims in a crime can be
compensated on two grounds: (1) A criminal who had inflicted an injury against the person (or group
of persons) or the property must be compensated for the loss caused that has caused the victim, and
(2) The State that has failed to provide safety towards its citizens must receive compensation for the
loss caused. Incapacitation is the theory of punishment that involves removing the person from
society, either temporarily or permanently, or by some other method, which restricts him due to
physical inability. It is reserved only for those people who are either sentenced to prison or life
imprisonment, yet it also includes things like being supervised by the departments within the
community, like probation and parole.

Principles of Criminal Liability

The principle of criminal liability is embodied in the dictum “actus non facit reum nisi
mens sit rea”, meaning that an act would not be held to be unlawful unless it is
accompanied by a wrongful intention as well. It is composed of four essential elements:
performance of an act (actus reus), that act is unlawful (unlawfulness), that unlawful act
causes the crime (causation), and that act is accompanied with a guilty mind (mens rea).
In Namibia, the principle of common purpose is based on the dictum “actus non facit
reum nisi mens sit rea”, meaning that an act would not be held to be unlawful unless it is
accompanied by a wrongful intention as well. The principle of common purpose is a
doctrine that emerged in Namibian law from the English Law. It is present when two or
more persons have a common purpose to commit a crime, and the conduct of each of
them in the execution of that purpose is imputed to the others.

It is used almost exclusively to cases of culpable homicide and murder, as it helps in

resolving an important factual question of proof of causation wherein multiple persons
are involved. The Namibia criminal law discarded the requirement of causation in cases
of homicide and replaced it with imputing the deed to all offenders alike. The principle
of common purpose is fastened on all offenders jointly to win against the unfair result of
letting the offenders escape the liability. The principle of attempt is understood in time
frames, where the accused person has reached the last step before the commission of
crime and has failed to commit the crime. In the first case of a completed attempt,
proximity of the acts of the accused would not closely be looked into, but in the second
case, the Court would closely investigate and check whether the accused person’s act
would amount to an attempt.

The principle of conspiracy states that an accused person has the intention to commit a
crime, but the unlawful act and its consequences are not complete. In this case, the
accused disposed of the body and set it on fire, but the victim did not die due to carbon
monoxide poisoning caused by the fire. The principle can be extended to other
definitions of offences where the safety and security of the State are involved, such as
terrorism.

Principle of abetment , Namibian criminal law does not have an offence specifically by the name of
abetment, but instead uses the term incitement or instigation. An act of incitement is a crime of an
inchoate nature, and if a group of conspirators conspire to do an unlawful act, they will be penalised
for the mere fact of their conspiracy. If the incitee successfully commits the crime, the inciter may be
prosecuted as a co-perpetrator or an accomplice of the crime committed by the incitee. The
principle of mens rea states that an act is not unlawful unless it is accompanied by a guilty mind.
Fault or mens rea may take two more forms – intention (dolus) or negligence (cupla).

A necessary requirement of fault is that the fault must exist through every element of the crime with
which the accused has been charged with. Therefore, the accused person must know that he/she is
doing an unlawful act. The Namibian law defines intention under three headings: Dolus directus,
Dolus indirectus and Dolus eventualis. Dolus directus is the aim and object of the accused person to
commit an unlawful act or effectuate the unlawful consequence. Dolus indirectus is when the
accused can reasonably anticipate the unlawful conduct or consequence.

Dolus eventualis is when the accused knows that certain unlawful consequences would ensue if he
proceeds with his conduct, but still acts on it. The principle of insanity states that it is for the
prosecution to prove criminal liability of the accused beyond reasonable doubt, with the exception
of defence of insanity. The burden of proof shifts on the accused to prove that they were suffering
from a mental defect or mental illness at the time of commission of the crime. The meaning of the
words “mental illness” and “mental defect” is “a pathological disturbance of the accused person’s
mental capacity, not a mere temporary mental confusion which is...attributable to...external stimuli
such as alcohol, drugs or provocation”. With the enactment of the Criminal Procedure Act, the same
has been changed to “not guilty by reason of mental illness or mental defect”, meaning that the
accused person who suffers from mental illness or mental defect is unfit to stand trial. The question
whether the accused person is fit to stand trial or not is determined by a psychiatric examination,
and such an accused person is kept in a mental hospital until they become fit and able to stand trial.

The principle of consent can be understood from two perspectives: (i) Consent as a defence, and (ii)
Consent as a part of individual autonomy. In the case of consent as defence, the accused person
needs to show that the consent was voluntarily given by the victim, without coercion. In the case of
consent as a part of individual autonomy, it is not allowed to invoke the defence of consent in cases
of rape, theft and offences relating to property. Jonathan Burchell defines private defence as “A
person who is the victim of an unlawful attack upon person, property or other recognised legal
interest may resort to force to repel such attack. Any harm or damage inflicted upon an aggressor in
the course of such private defence is not unlawful”.

In Namibia, the concept of euthanasia is still debated and some judges hold physician assisted
euthanasia to be equivalent to murder, let alone culpable homicide. Private defence is not a form of
murder, even if the threat would have been of grievous hurt. However, to make the law clearer, it
needs to be clarified as to when the right of private defence would be vested in a person. The issue
was resolved that private defence can be exercised against a person who lacks criminal capacity. The
Courts have held that only that much force should be used as is necessary to ward off the imminent
danger or apprehension. Joint liability is established under the Criminal Procedure Act for any
offence, whether under any law or at common law, by or on instructions or with permission, express
or implied, given by a director or servant of that corporate body. The principle of joint liability is a
more severe form of vicarious liability. In Namibia, if there is any act performed with an intention or
by instruction or permission on behalf and on instructions of the corporate body, the corporate body
may be held to be directly liable for any offence. The principle of minimum criminalisation has
evoked a lot of criticisms from criminal justice scholars and judges, with one commentator observing
that it has greatly increased the number of prisoners serving long and life sentences. This has
resulted in a major shift in the length of the prison terms.

The sentencing policy in Namibia is based on three principles, collectively known as “trial of Zinn”,
such as the gravity of the offence, condition of the offender and public interest. The minimum
sentence principle is still valid and operational in Namibia, while the principle of fair labelling
requires that there should be a co-relation between the name/description of the offence and the
impugned wrongful act. Fair labelling has a constitutional argument to it, as it is argued by scholars
that if the offender commits a crime, the charge or stigma attached to him/her must correlate with
their wrongful act. However, media trials often lead to over-stigmatizing the accused person, as seen
in the case of Oscar Pistorius. The principle of balancing, severity and proportionality is an important
concept in Namibian criminal law.

In the case of Pistorius, who was tried for murder of Reeva Steenkamp, the Court convicted him of
culpabale homicide, but the media reports and public response changed the charge to murder. The
principle of parsimony seeks to have the imposition of imprisonment ass less as possible, even if it is
for shorter periods. The principle of proportionality means a moral reasoning on the judges’ part
wherein they weigh the severity of the crime against the rights of the accused person. Critics argue
that the courts often take political and moral decisions in the garb of balancing the rights and values,
and that the decision in such cases, where proportionality principle is invoked, rests heavily on the
political and personal background of the judges. The principles of parity, totality, and mistake are
important in the legal system.

Parity is the principle that there should not be selective punishment and inconsistency vis-a-vis
disciplinary actions must be avoided. Totality is the principle that when an offender is charged with
multiple crimes, each resulting in separate punishments, the cumulative effect of the sentence
would be exorbitantly high and disproportionate. Mistake is the principle that the defence of
mistake of law is not available to the accused under the maxim ignorantia juris non excusat.
Unlawfulness is required for all offences, both common law and statutory offences, and is excluded
when what one does is justified. Justifications for offences include self-defence, necessity, consent,
and de minimis.