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?

ANSWER

The aim of this essay is to determine what mulenga and Mukuni will be charged with and
whether either of them has any defense.

In light of the second legal issue, section 22 of the penal code, 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.”

In the case of Mwape v. The People the courts pronounced that two or more persons may act
as principals or as accessories if they have common [unlawful] purpose.
Further, the court in the case of Mutambo & Others v The People considered the doctrine
of common purpose. it was observed in this case that when individuals embark on a joint
venture all that flows from the execution of the plan will make them all liable.
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.

This only happens where the parties shared common purpose and 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. This was considered in the case of Winfred
Sakala and others v the people. In this case the court held all the accused persons liable for
aggravated robbery because killing the watchman was a forceable consequence.

However, where one of the parties goes beyond the common purpose, then the other parties
will not be held as joint offenders. For example in the case of Mwape v the people, the assault
on the watch man was found to go beyond the common purpose to which the parties had
agreed. The parties agreed that if they experience any resistance from the watch man, they
should run. So one was held liable for aggravated robbery the others were held liable for
breaking and entering.

In relation to the first legal issue as to what offense can they be convicted with, both will be
charged and convicted of aggravated robbery as joint offenders even if the use of violence
was done by one person because according to section 22 and the case of Mwape v the people
were two or more persons form a common [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.”
As regards the second legal issue both parties have no defense. Mukuni might want to escape
from the joint liability and claims that the use of violence was outside the common purpose
because they had clearly stated that no use of violence. However, this statement is not
sufficient to make the stabbing of the guard out of common purpose. Since she saw a gun on
mulenga, use of violence was something that was contemplated and a forceable consequence
of their joint unlawful common purpose. This is in light of the case of Winfred Sakala were
the court found the assault on the watch man to be within the common purpose because it was
a forceable consequence of their common purpose. Additionally, section 22 of the penal code
as cited above also mentions that were the parties shared common purpose and 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. Therefore both parties will be held jointly
for aggravated robbery as the use of violence was a forceable consequence and was not
outside the common purpose.

In conclusion Mulenga and Mukuni will be charged with aggravated robbery as joint
offenders and they both have no defense. The statement that they will not use any violence
did not bring the case outside the common purpose as it was a forceable consequence of the
common unlawful purpose. This was necessitated by the fact that one of the parties carried a
knife and the other party was aware of it.