PART II

1. INTRODUCTION
Introductory lecture – Review of principles and concepts in the first module
It is now time to understand the operation of general principles of liability in
relation to specific major crimes. These ranges from protecting personal safety (Non
sexual like Common assault, Assault, Battery, Assault Occasioning Actual Bodily Harm
(AOBH), Wounding & Grievous Bodily Harm GBH): protecting interests in property (Theft
- Definition, elements, punishment; Forgery, False pretences, Robbery, House breaking
and burglary, Receiving stolen property): protecting public order, (Unlawful assembly,
Threatening violence); protecting the security of the state, (Treason and Sedition):
protecting public morals (sexual offences like Rape, Defilement, Indecent Assault, Incest,
child abuse); protecting Marriage and Domestic Relations (Bigamy, Neglecting to
provide necessaries of life); fatal offences against the person (Homicide, Murder
“causation, malice aforethought, intention, recklessness element of murder includes
causation during a year and a day rule”, Manslaughter, Infanticide); protecting the
administration of justice (Perjury, Contempt of Court, Prohibition of taking
photographs, etc. in court); attempts and conspiracies; offences under other statutes
like computer misuse and crimes (definition of computer, the elements of computer
offences, proscribed punishment), corruption practices under the Anti Corruption Act
No. 42 of 1996, Money Laundering, Drugs; and ,others of strict liability as well as those
offences aimed at protecting employees, consumers, and environment etcetera. There
are so many that it is not possible to investigate all the crimes and we will concentrate
on major offences in order to explore the underlying principles, themes and the
purposes of criminal law. We will explore the structure of these crimes and the variant
sentences that depict the weight attached to the resultant criminal liability and harm.

2. CRIMINAL LIABILITY
Criminal law is basically about principles concepts and rules that underlie criminal
offences. It identifies the constituents that comprise crime and general defences and

1
the potential punishment associated to such criminal liability. This was basically covered
in the first module.

3. MAJOR CRIMES:
(a) OFFENCES AGAINST THE PERSON
These are non-sexual offences. These are ranked in hierarchical order starting
with a technical assault and battery to the more serious fatal offences.
i. COMMON ASSAULT under section 247
Assault is an attempt or threat to apply unlawful force immediately to the
person of another. It is a threat to apply force the person of another whether by
striking, drawing a sword, throwing anything pointing a loaded gun or any other act
indicating an intention or recklessness to use violence against the person of another.
There must be the apprehension of immediate and unlawful application of force. The
threat of application of force must be capable of being carried out immediately. It must
cause the victim to apprehend that force is about to be applied to his/her person.
In Kimber, (1983) the Court said:
“An assault is an act any which the defendant intentionally or recklessly causes the
complainant to apprehend immediate, or to sustain, unlawful personal violence.”

In Stephens v Myers (1834) C & P 530

S advanced towards the Chairman of the parish meeting but was stopped by two
men before he could hit him. His blow would almost immediately have reached the
chairman/plaintiff within a second or two if he had not been stopped. The CJ said: “there
must, in all cases be a means of carrying threat into effect.”

Words may prevent an assault. Actual words negate intention and the unlawful
nature of assault. In the case of Tubervell v. Savage, (1669) 2 Keb. 544; 1 Mod Rep 3; the
Defendant laid his hand on his sword and said:
“If it were not assize time I would not take such language.”

2
It is of essence that the victim is put in fear. The Actus Reus is the act itself or words or a
combination of acts and words. The mens rea is the intention, recklessness or omission.
If the act causes the apprehension of fear of being hit, then intent or recklessness can
be inferred from the conduct.
The offence of common assault is a misdemeanour for which punishment is
imprisonment for one year under the Penal Code CAP 87.

Readings:
DPP v Little (1992) 1 QB 645
Ashworth: chap.8; Clark & Keating: chap. 7; Clarkson C.M.V., Understanding the Law
Chap. 3; Smith & Hogan: Criminal Law (1992 or other editions) chap. 13.
ii. Battery
This is the actual application of force to the person, however slight and without
the consent of victim and without lawful excuse. No apprehension of intending violence
is required. The degree of personal touch however slight will suffice. Such touch must be
threatening the right to personal integrity. Thus nonsexual, non-threatening and non
hostile touch does not warrant protection under criminal law.
In Haystead v DPP Times 2 June 2000; 3 ALL ER 890, a man hit a woman causing her to
drop her child it was held that he assaulted both the woman and her child.

Words can Constitute an Assault

In Fagan v Metropolitan Police Commissioner, (1969) 1 QB 439; [1968] 3 ALL E.R.
442; the appellant was directed to park his car by the kerb side. He stopped far from the
spot. The officer showed him to park at the precise spot. In the process, he stopped with
the offside wheel on the officers left foot. The officer said, “get off my foot,” and the
appellant said “fuck you, you can wait’’. The officer repeatedly said, “Get off my foot”
and the appellant unwillingly said “okay man, okay,” then slowly turned the ignition and
reversed. The question was whether the facts amounted to an assault. James J said:

3
 “An assault is any act which intentionally-or possibly recklessly – causes another person to
apprehend immediate unlawful personal violence. Although assault is an independent crime and is to
be treated as such, for practical purposes today assault is generally synonymous with the term ‘battery’
and is a term used to mean the actual intended use of unlawful force to another person without consent
…. Where an assault involves a battery, it matters not, in our judgment, whether the battery is inflicted
directly by the body of the offender or through the medium of some weapon or instrument controlled by
the action of the offender, assault may be committed by the laying of a hand upon another, and the
action does not cease to be an assault if it is a stick held in the hand and not the hand itself which is laid
on the person of the victim….
“To constitute the offence of assault some intentional act must have been performed: mere
omission to act can not amount to an assault. Without going into the question whether words alone can
constitute an assault, it is clear that the words spoken by the appellant could not alone amount to an
assault: they can only shed light on the appellant’s action. For our part we think the crucial question is
whether in this case the act of the appellant can be complete and spent at the moment of time when
the car wheel came to rest on the foot or whether his act is to be regarded as a continuing act operating
until the wheel was removed. In our judgment a distinction is to be drawn between acts which are
complete–though results may flow –and those acts which are continuing….
“For an assault to be committed both elements of actus reus and mens rea must be present at
the same time The actus reus is the action causing the effect on the victim’s mind …. The mens rea is the
intention to cause that effect. It is not necessary that mens rea should be present at the inception of the
actus Reus; it can be superimposed upon an existing act.
“…. On the facts found the action of the appellant may have been initially unintentional, but
the time came when knowing that the wheel was on the officer’s foot the Appellant: (1 )remained in the
car so that his body through the medium of the car was in contact with the officer, (2) switched off the
ignition of the car, (3) maintained the wheel of the car on the foot, and (4)used words indicating
the intention of keeping the wheel in that position. For our part we cannot regard such conduct as mere
omission or inactivity.”

The appeal was dismissed.

The mens rea is an intention to apply unlawful physical force to another or recklessness
as to the application of force.
R v. Adesanya (1983) Cr. App. R 720; Times, July 16, 1974.
A mother was convicted of aggravated assault for cutting the cheeks of her sons
in accordance with her tribal custom.
Collins v. Wilcock (1984) 3 All ER 374

4
The offence of battery is a misdemeanour punishable by imprisonment for one year the
same section 247 of the Penal Code, CAP 87.

DEFENCES:
(a) Chastisement / Lawful correction
This defence is no longer available. In William v Secretary of State of Education
and Employment, 2002 I FLR 493 the court considered chastisement not justified even
when supported by religious text or parental consent.
Even lawful corporal punishment has been outlawed in Zambia. In John Banda v
TP (1998/9) unreported the offender was charged, convicted and sentenced to strokes
of cane for breaking a windscreen of a police motor vehicle. Chulu J considered corporal
punishment to be contrary to Article 15 of the Constitution of Zambia; and, as inhuman
and degrading punishment.
(b) Consent
volenti non fit injuria
For assault to be proved it must be shown that the act was against the will of the
victim. Consent therefore negatives the crime.
There is however limits to what one can consent to. For instance, one can not consent
to be killed.
(c) Self Defence
Self defence is a defence against violence to ones person. The retaliation offered
must be reasonable and proportionate to violence offered.
(d) Accident

iii. ASSAULT OCCASIONING ACTUAL BODILY HARM, (AOBH): sections 4, 248, 248A
of the Penal Code Cap 87; (as amended by Act No 15 of 2005).
Assault Occasioning Actual Bodily Harm is a misdemeanour punishable with 5
years simple imprisonment.

5
In Section 4 ‘harm’ is defined as:
“Any bodily hurt, disease or disorder whether permanent or temporally.”

One has to prove assault and mens rea in assault or proof of a battery. To occasion
means to cause or to result. If assault is proved then the next thing is to prove causation
of the actual bodily harm. According to the House of Lords in DPP v Smith [1961] AC 290
at page 334 ‘bodily harm’:- “needs no explanation. ‘Grievous’ means no more and no less than
‘really serious.’

In Miller [1954] 2 QB 282, at page 292 Lynskey, J quoted a statement in Archibald as

follows:
“Actual bodily harm includes any hurt or injury calculated to interfere with the health or
comfort of the prosecutor…”

It is now established that words alone constitute an assault. Whether it is words, acts, or
a combination of both to amount to an assault the victim must apprehend the
immediate affliction of violence.
In Ireland, Burstow (1998) AC 147;the house of lords held that even the making
of silent telephone calls can amount to an assault and serious harm can be ‘inflicted’
with or without there being an assault or any personal violence at all, whether direct or
indirect.
In Ireland, (1997) 4 All ER 225, the accused made many unnecessary calls mostly at
night, to three women over short intervals, (although sometimes resorting to heavy
breathing); when they answered there was silence. He was charged with three counts of
assault occasioning actual bodily harm. Expert evidence revealed that the women
suffered significant psychological symptoms of palpitations, cold sweat, anxiety,
insomnia, dizziness and stress. He was convicted on the three counts and appealed to
the House of Lords. It was held that the immediacy requirement was satisfied by the
apprehension or “fear that the caller’s arrival at her door may be imminent. She may
fear the possibility of immediate personal violence”
Burstow refused to accept that a woman wished to end the relationship he had
with her. Over six years he followed her to work, repeatedly visited her house, turned
up at places she went. He sent her hate mail, stole clothing from her washing line and

6
scattered condoms in her garden. She suffered endogenous depression with marked
features of anxiety. He was convicted on a charge of grievous bodily harm and appealed
to the House of Lords.
Both appeals were dismissed and the House of Lords held that:
(i) that bodily harm in ss. 47 and 20 (of the British Penal Code) included a recognisable psychiatric
illness;
(ii) the word inflict in s.20 (of the British Penal Code) was capable of embracing someone inflicting
psychiatric injury upon another-one can inflict grievous bodily harm under s.20 (of the British Penal
Code) without any physical violence being applied to the victim’s body, either directly or indirectly;
(iii) making silent telephone calls causing psychiatric injury whilst not amounting to a battery was
capable of amounting to an assault and therefore could form the basis of a charge under s.47” (of the
British Penal Code).

In Constanza (1977) the accused, a stalker, made repeated silent call and sent
800 letters, which culminated in the last two that the victim interpreted to, be threats. It
was held that she had “fear of violence at some time not excluding the near future”.
The above cases show that the victim apprehends not immediate physical
danger but psychological violence in the sense that the letters or calls will cause trauma
that will result.
R v. Mburugo 22(2) KLR 62
R v. Mbuthia s/o Kaguru (see Ndulo’s Casebook at p261)
R v. St George (1840) 9 C&P 483

iv. UNLAWFUL WOUNDING: Read ss. 4, 232 PC;

Section 232 states that:
“Any person who-
(a) unlawfully wounds another; or
(b) unlawfully, and with intent to injure or annoy any person, causes any poison or
other noxious thing to be administered or taken by, any person;
is guilty of a felony and is liable to imprisonment for three years.”

In Section 4 ‘wound’ is defined as:

7
 “Any incision or puncture which divides or pieces any exterior membrane of the body, and any
membrane of the body, and any membrane is exterior for the purposes of this definition which can be
touched without dividing or piercing any other membrane”

The actus reus for unlawful wounding requires ‘wound’ or the causing of ‘grievous
bodily harm’ as opposed to inflicting it.
Collins v Wilcock (1984) 1WLR 1172;
R v Logden (1976) Crim. LR 121;
In R v Lamb (1967) 2 QB 981; [1967] 2 ALL E. R. 1282; the accused Lamb who was
inexperienced in the use of firearms had a revolver and in a joke to the knowledge of his
best friend, pointed it at him. He pulled the trigger and his friend was shot and killed.
The revolver had two bullets but he did not know that by pulling the trigger, the cylinder
would rotate and one bullet would be brought under the firing pin. He was charged with
and convicted of manslaughter. The Trial Judge directed the jury that he done unlawful
and dangerous act. The trial judge’s direction on criminal negligence did not take into
account the accused’s belief that the pulling of the trigger would have no effect on the
position of the bullets. Sachs LJ observed that:
The trial judge erred when took the view that:
“the pointing of the revolver and the pulling of the trigger was something which could of itself
be unlawful even if there was no attempt to alarm or intent to injure.”

But that the correct view according to Sachs LJ was that:

“… he did not refer to the defence of accident or the need for the prosecution to disapprove
accident before coming to the conclusion that the act was unlawful…’for the facts to be unlawful it must
constitute at least…’a technical assault’.”
“…when the gravamen of a charge is criminal negligence – often referred to as recklessness – of an
accused, the jury have to consider among other matters the state of his mind, and that includes the
question of whether or not he thought that that which he was doing was safe. It would…have been fully
open to a jury if properly directed, to find the accused guilty because they considered his view as to
there being no danger was formed in a criminally negligent way.”

In R v Lamb it was held that:

“i. The unlawful act necessary to render a person guilty of manslaughter on the ground that he
intended to do an unlawful act must involve an assault.

8
 ii. In determining whether he was guilty of criminal negligence, the jury must be told to take into
account the accused’s beliefs with regard to materials facts although, in some circumstances, such
beliefs may have been formed in circumstances amounting to criminal negligence.”

In Zakalia v The People [1978] SCZ Judgment No 23 of 1978, the accused was convicted
of unlawful wounding of the complainant with an iron bar. On appeal the question was
whether the resultant injuries amounted to wounding. Baron DCJ:
“This court had occasion to consider this point more than once in the past … (in) Lengwe v The
People [1976] ZR 127 in which we followed an earlier decision in…N’gambi v The People [1975] ZR 97.
…since it appears that those responsible for prosecution have overlooked these decisions we must, at
the risk of labouring the matter cite the passage again:
“’Wound’ is defined in section 4 of the Penal code as ‘any incision or puncture which divides or
pierces any exterior membrane of the body’. A laceration inflicted by a blow with the stick, which breaks
the skin, is not a wound within this definition. The meaning of the words ‘incision’ and ‘puncture’ make
it clear that (only a weapon with a cutting edge or point can inflict such a wound). Of course, this
cutting edge or point need not be that of a metal object such as a knife or spear, or indeed a bullet; a
wound can equally be inflicted by a sharpened stone or stick.”

R v. Cunningham (1957) 41 Cr. App. R 155

Lengwe v The People (1976) ZR 127
In Ng’ambi v The People (1975) ZR 97, the accused was charged and convicted of
unlawful wounding on an allegation of injuring three people a man and two women with
a panga on his own plea of guilty. In his plea accused said, "the facts are true, I used a
stick". The magistrate entered a plea of guilty and imposed sentences based on the use
of what he described as "a deadly weapon". On appeal, the Supreme Court held that:
“(i) Where an accused person is charged with unlawful wounding caused by the use of a
panga and in answer to the charge he states "the facts are true, I used a stick", this is not a plea of
guilty to unlawful wounding.
(ii) A laceration inflicted by a blow with a stick which breaks the skin is not a wound in
terms of section 4 of the Penal Code, Cap. 146; such a wound can be inflicted only by a weapon with a
cutting edge or point.
(iii) Where a plea of guilty has been entered when in fact a plea of not guilty should have
been entered all the proceedings there after are a nullity and it is not open to an appellate court to
substitute a conviction of a minor offence on the basis of the statement of facts.”

Further reading:

9
Kulusika pp 438-439
Smith & Hogan chapter 13
v. GRIEVOUS BODILY HARM (GBH): ss. 4, 229.
Section 229 states that:
“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to
imprisonment for seven years”

The actus reus is the Inflicting of grievous harm. The Penal Code defines ‘grievous harm’.
Section 4 defines ‘grievous harm’ as:
“any harm which endangers life or which seriously or permanently injures health or which is
likely to injure health or which extends to permanent disfigurement, or to any permanent
disfigurement, or to any permanent or serious injury to any external or internal organ, member or
sense.”

The actus reus is causing grievous harm and the mens rea is an intention to cause
grievous harm.
In DPP v. Smith [1961] AC 290, the House of Lords defined ‘grievous harm’ as ‘really
serious harm’. Such harm includes broken limbs, severe internal injuries, or anything
which significantly disables the victim, whether permanently or temporarily. As stated
earlier, psychiatric injury is also included.
Mens Rea
The prosecution must prove either intention to do grievous harm or
recklessness. The accused person must be shown to intend some harm, be it physical or
psychiatric, serious or otherwise.
In Television Chibuye v. TP (1978) ZR 43 it was held that:
“(i) Loss of teeth does not constitute a "permanent disfigurement" and cannot be considered as
permanent or serious injury to any external or internal organ member or sense as specified in s. 4 of the
Penal Code, Cap. 146.
(ii) The legislature did not intend to give a strained interpretation to the term ‘grievous harm’. The
legislature intended that the harm must be really serious.”

CULLINAN, J., stated that:

“I doubt if the loss of two teeth constitutes "permanent disfigurement" as such: cosmetically the teeth
can be replaced; I doubt if it constitutes "permanent or serious injury to any external or internal organ
member or sense" as specified in s. 4 of the Penal Code: once the teeth have fallen out, I cannot see that

10
there is any permanent injury as such. In any event, I doubt that the legislature ever intended such a
strained interpretation to be given to the term "grievous harm". The term "grievous bodily harm"
contained in s. 18 of the Offences Against The Person Act, 1861, has been defined in England as
meaning really serious bodily harm, but I do not see that that interpretation can necessarily be applied
to s. 4 of the Penal Code, whose terms are quite specific”

(b) OFFENCES AGAINST THE ADMINISTRATION OF JUSTICE

i. PERJURY
ii. CONTEMPT OF COURT

(c) OFFENCES AGAINST PUBLIC ORDER

i. TREASON, MISPRISION OF TREASON, TREASON FELONY: ss. 43-45, 52
(Overt act)
Shamwana v The People, (1985) ZR 41.
The offence is created by section 43 of the Penal Code. It is punishable by a
mandatory death sentence. A failed revolution amounts to treason. Therefore, the law
of treason seeks to forestall revolution. Paragraphs (a) to (d) of the above section make
unlawful attempts in the legal sense as well as preparations that are not generally
criminal.

To prove treason the prosecution must establish by evidence that the accused
committed one or more of the following acts:
a) Preparations to overthrow the Government by unlawful means;
b) Preparations to alter the law or policies of the Government by force;
c) Preparations to set up an independent State in Zambia;
d) Preparations to usurp executive power of the State by force in any matter of
both a public and a general nature;
e) Inciting or assisting any person to invade Zambia by armed force;
f) Assisting an enemy in time of war.

11
Shamwana and Others v. The People (1985) ZR 41
Joyce v. D.P.P. (1946) AC 347

Section 44 of the Penal Code misprision of treason for which the maximum sentence
that can be imposed is life imprisonment. The offence is committed when a person
becomes an accessory after the fact to treason or knowing that somebody intends to
commit treason fails to report the same with reasonable dispatch to the authorities.

Treason-felony is created by section 45 of the Penal Code and is punishable by

imprisonment for twenty years. The sentence is mandatory.

1 SEDITION
The Penal Code provides for seditious intention. In other words, the offence of sedition
cannot exist without a seditious intention. Seditious intention is defined in section 60 of
the Penal Code and the same section provides for instances that amount to seditious
intention. The proviso to the said section does not make seditious an intention to:
a) Show that the Government has been misled or mistaken in any of its measures;
b) Point out errors or defects in the Government or Constitution or in legislation or
administration of justice with a view to the reformation of such errors or defects;
c) Persuade the people to attempt to procure by lawful means the alteration of any
matter as by law established; or
d) Point out, with a view to their removal, any matters which are producing or
tending to produce feelings of ill will or hostility between different classes of the
population of Zambia.

Thus constructive criticism of errors or defects of Government is not seditious

intention. Persons have the right to discuss any grievance or criticize, canvass and
censure the acts of Government and their public policy. They may even do this with a

12
view to call attention to the weakness of a Government provided they keep within the
limits of fair criticism.
R v. Chona (1962) R&N 344
DPP v. Ngandu and Others (1975) ZR 253 (SC)
DPP v. Chike Obi (1961) All NLR 186
ii. SEDITION
Seditious Acts: ss 57-58, 60-61 of the Penal Code CAP.87.
Boucher (1951) SCR 265;
R v Chona (1962) R & N 344;
Holland (1914) 33 NZLR 931;
Ambrode
Hickey (1922) NZLR 96;
R v Card (1970) 54 Cr. App. R. 499;
Smith & Hogan: Chapter 20.
iii. UNLAWFUL ASSEMBLY, RIOTS, AFFRAY AND OTHER FORMS OF VIOLENCE: ss 74-77,
85, 88, 90, 46, 48 of the Penal Code CAP.87.
Section 74(1) of the Penal Code creates this offence of unlawful assembly and section 75
prescribes the punishment therefor. For this offence to be established the prosecution
must prove the following elements:
a) Three or more persons must be present;
b) They must intend to commit an offence or to carry out some common purpose;
c) They must conduct themselves in a manner that causes persons in the
neighbourhood to fear that the assembled persons will commit a breach of the peace,
or will by such assembly needlessly and without reasonable occasion provoke other
persons to commit a breach of the peace.

It must be noted that an assembly, which was initially lawful, becomes unlawful when
the persons assembled conduct themselves in the manner hitherto described. The

13
offence of unlawful assembly is a misdemeanour for which the maximum sentence that
can be imposed is five years imprisonment.

iv. THREATENING VIOLENCE

(d) OFFENCES RELATING TO MARRIAGE AND DOMESTIC RELATIONS
i. BIGAMY
The ingredients of the offence of bigamy include ‘being married ’and contracting
‘second marriage’, There are three statutory provisions to this effect. The three statutes
have expressly stated that the presumption of death can only be relied upon as a
defence to bigamy if a period of seven years has elapsed.
Under section 166 of the Penal Code, the proviso provides for a defence as follows:
“Provided that this section shall not extend to any person whose marriage with such husband
or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a
marriage during the life of a former husband or wife, if such husband or wife, at the time of the
subsequent marriage, shall have been continually absent from such person for the space of seven years,

and shall not have been heard of by such person as being alive within that time ”.

Proviso, gives a continuous absence for seven years as a defence to the offence of
bigamy.
Section 38 of the Marriage Act CAP 50 of the laws of Zambia also has a proviso that
provides a defence for liability of an offence under this section stating that,
“Provided that this section shall not extend to any person who contracts a marriage during the
life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall
have been continually absent from such person for the space of seven years, and shall not have been
heard of by such person as being alive within that time.”

Similarly, in section 19 of the Matrimonial Causes Act 1973 the proviso indicates
that continuous absence for seven year is a defence to the offence of bigamy.
All three statutory provisions require a person to have been continually absent
for a period of seven years. Hence, the presumption of death also arises where there is
no acceptable affirmative evidence that a person was alive at some time during a
continuous period of seven years or more, then if it can be proved first, that there are
persons who would likely to have heard of him over that period.

14
 In the case of Chard v Chard (1955) P 259 the brief facts were that the a wife
who was a party to a marriage in 1909 was last heard of in 1917 as a normally healthy
woman would, in 1933,have attained the age of 44. She had reasons for not wishing to
be heard of by the husband and his family and it was possible to trace anyone who,
since 1917, would normally have heard of her. No trace of the registration of her death
could be found so the husband remarried in 1933. He and the 1933 wife sought decrees
of nullity. In this case Sachs J indicated that upon the facts stated, the case was one
where the court cannot accept the 1933 marriage certificate as necessarily binding, but
must examine the possibility of the 1909 wife still being alive. At the time this case was
decided, the Matrimonial Causes Act 1973 had not yet been enacted. Sachs J held that:
“My view is thus that in matters where no statute lays down an applicable rule, the issue of
whether a person is, or is not to be presumed dead, is generally one of fact and not subject to the

presumption of law.” The court held that the correct inference in the case from the facts is
that the 1909 wife was living on 15 May, 1933, and not dead.
Not hearing of a person for a continuous period of seven years or more, by the
people who would likely have heard of him, and due inquiry by those people is a basic
requirement for the presumption of death to operate. R v. Tolson (1889) R & N 504
A petitioner has to prove that he had no reason to believe that the other spouse
had survived the past seven years.
The second marriage is bigamous if the first marriage is valid and the validity of
the first marriage in this case can be proved by the fact that they were married under
the Marriage Act.
TP v Katongo (1974) Z. R. 280
In Chitambala v. TP(1969) Z.R.142
Or when the first marriage is equally a valid marriage under section 38 of the marriage
act for purposes of considering a second one as bigamous, as in TP v Nkhoma (1978) Z.
R. 4
In the case of R v Cullen, (1840) 9 C & P 681; the defendant was charged with
bigamy contrary to section 57 of the Offences Against the Person Act 1861 as amended

15
by section 1 (1) Criminal Justice Act 1948 which is similar to section 166 of the Penal
Code CAP 87. It was held that for the defence of presumption of death to succeed, the
defendant must not have known the spouse to be alive at any time during the seven
years period.
In Chitambala v. TP(969) Z.R.142
ii. Neglecting to provide necessaries of life

(b) OFFENCES AGAINST MORALITY

- VIOLENCE AGAINST WOMEN:
i. RAPE
Under section 132 of the Penal Code stipulates that:
“any person who has unlawful carnal knowledge of a woman or girl, without her consent, or
with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind,
or fear of bodily harm, or by means of false representation as to the nature of the act, or, in the case of

a married woman, by personating her husband, is guilty of a felony termed ‘rape’ .”

The actus reus of rape consists of the following:

(a) Unlawful carnal knowledge of a woman;
(b) without her consent or with consent obtained by force.
The mens rea relates to both elements. It is not enough that accused had intention to
have carnal knowledge; he must know that the woman does not consent.
To prove rape it is necessary to prove penetration or partial penetration by the penis
into the vagina. Therefore, penetration of the vagina using any object other than the
penis is not rape but is indecent assault.
There must be penetration of the vagina fully or partially by the penis. However,
rubbing against the vagina entrance does not amount to penetration even if the
emission of semen results there from; and there is no rape in such a case but indecent
assault could suffice.
Absence of consent at the time of the sexual intercourse is the element that
transforms the sexual intercourse into rape. The woman must show signs of resistance
to the act. There is no real consent if the woman yields to sexual intercourse under

16
physical coercion or due to fear. Consent obtained by false representations as to the
nature of the act is no consent. Similarly, there is no consent where a man gets into bed
with a married woman who gives in under the mistaken belief that the man is her
husband. There is also no consent where a man has or attempts to have sexual
intercourse with a woman while she is asleep and it is no defence that she did not resist.
R v. Williams (1925) 1 KB 340
Mulira v. R, 20 EACA 223
R v. Myers (1872) 12 Cox C C 311
Defence of mistake of fact to a charge of rape
Section 10 of the penal Code CAP 87
The mistaken belief should be reasonable
The claim of reasonable mistake is no longer available in England.
DPP v. Morgan (1976) AC 182
The Court of Appeal in Elbekkay (1995) Crim. L R 163 dismissed the appeal where the
accused was convicted of rape after he had sexual intercourse with a lady by
impersonating her boyfriend. Furthermore, it has been noted that “[t]here was no
difference between the case where D obtained [sexual] intercourse by personating the
husband or where it was by personating of a boyfriend or partner” (Smith & Hogan
(1996): 494 - 5).
Under the Zambian law, a husband cannot commit rape on his wife. The rationale
appears to be that arising out of her marital obligations; the woman is deemed to
consent to sexual intercourse with her husband provided they are not separated by a
Court order or a separation agreement.
However, under English law a husband can rape his wife.
R v. Clarke (1949) 2 All ER 448
R (1992) 1 AC 593
a) Mens Rea
The prosecution must prove that the accused intended to have sexual intercourse
without the victim’s consent, and that he knew the victim was not consenting or was

17
reckless as to whether she was consenting or not. The case of DPP v. Morgan (1976) AC
182 is a leading authority on recklessness whether the victim is consenting or not. Note
also that medical evidence and corroboration are insisted on in the law of rape.
R v. Cox (1832), 1 Lew. 292
R v. Mporokoso 2 NRLR 152
DPP v Morgan (1976) AC 182
It is no longer law that a wife is taken to have consented to sexual intercourse simply by
virtue of being the defendant’s wife.
Under Section 135which states that:
“Any person who with intent to marry or carnally know a woman of any age, or to cause her to
be married or carnally known by any other person, takes her away, or detains her, against her will, is
guilty of a felony and is liable to imprisonment for seven years.”

It seems that the husband can also be indicted for rape if he causes be carnally known
by any other person.
R (1992) 1 AC 593
R (1991) 2 ALL E.R. 257;
Mulenga v TP (1972) ZR 271
Emmauel Phiri v TP [1982] ZR 77(SC)
R v Mporokoso 2 NRLR 152 on proof of penetration and medical examination
R v Williams 1925 1 KB 340
Mulira v R 20 EACA 223
Clarkson & Keating pp 600- 625
Smith & Hogan Chapter 14

ii. ABDUCTION
Section 136:
“Any person who unlawfully takes an unmarried girl under the age of sixteen years out of the
custody or protection of her father or mother or other person having the lawful care or charge of her,

and against the will of such father or mother or other person, is guilty of a misdemeanour .”

a) The unlawful taking

18
 b) of an unmarried girl
c) under sixteen years of age
d) out of the custody of her parents
e) against their will
iii. DEFILEMENT: ss. 137A, 138-139, 141-142, 150 Penal Code as amended by Act
No. 15 of 2005. Analysis of Act No 15 of 2005 is contained in Zambia Law Journal.
Section 138 the constituents of the offence of defilement are:
- Unlawfully and carnally knowing a girl;
- Who is under the age of sixteen
Defence
Under the section is a proviso that provides that it is a defence that the accused
had reasonable cause to believe that the girl was over sixteen.
In the year 2005, Parliament passed Act No. 15 of 2005, which amended the
Penal Code by repeal, and substitution of certain sections. Sections 138 and 139 of the
Penal Code create two types of defilement. Section 138 creates and prescribes the
punishment for defilement of a child. ‘Child’ is defined under the Penal Code
(Amendment) Act 2005 as any person below the age of sixteen years.
Prior to the amendment, only a girl child was capable of being defiled; a boy child could
only be indecently assaulted.
The minimum sentence for defilement of child is fifteen years imprisonment and the
maximum is life imprisonment. Proof of age of the victim is vital and of utmost
importance to a conviction on a charge of defilement. Age must be strictly proved. The
question of age may be proved by production of a birth certificate or evidence of a
person present at birth. It is not sufficient for the magistrate to rely on his own
observation of the girl’s age, nor may he take judicial notice of purely local events. The
proviso to section 138 which availed the defence of reasonable belief that the girl is
over was sixteen years was removed by the said amendment. The effect of the
amendment is that the offence is now one of strict liability
Phiri (Macheka) v. The People (1973) ZR 145

19
It is dangerous to convict for defilement without the magistrate directing himself on the
danger of convicting on uncorroborated evidence. Failure to do so will usually result in
the conviction being quashed on appeal.
R v. Sabenzu 4 NRLR 45
Tembo v. The People (1966) ZR 126
Katebe v. The People (1975) ZR 13

Defilement of imbeciles
Under Section 139 any person who has unlawful carnal knowledge (in circumstances not
amounting to rape) of a child or other person knowing such child or person to be an
idiot or imbecile is guilty of a felony and liable to imprisonment of not less than fourteen
years. The prosecution must prove beyond all reasonable doubt that the accused person
knew the victim to be an idiot or imbecile at the time of the defilement

In Zambia it is lawful for a man to have carnal knowledge of a girl under the prescribed
age if he is lawfully married to her.
R v. Chinjamba 5 NRLR 384
Sibande v. The People (1975) ZR 101

iv. INDECENT ASSAULT: ss. 137, 158 PC as amended by Act No. 15 of 2005.
An indecent assault is an assault accompanied by circumstances of indecency. Consent
of the victim to the assault is a defence. However, consent to the assault is no defence
where the victim is a child; Section 137(2) of the Penal Code as (Amendment) Act No…
of 2005.
The minimum sentence for this offence is fifteen years imprisonment and the maximum
is life imprisonment.
Indecent practices between persons of the same sex are criminalized by section 158 of
the Penal Code (Amendment) Act 2005 and the punishment prescribed therefore is a
minimum of seven years imprisonment and a maximum of fourteen years imprisonment

20
where the offender(s) is/are sixteen years old or older; where the offender(s) is/are
child(ren) the punishment is either community service or counseling.
For a child offender the punishment is community service or counseling.

The Penal Code (Amendment) Act 2005 has created an offence called Sexual
harassment of a child. See section 137A.

Read:
Mwanza v The People (1976) ZR 154;
Sigh Marwa (1995) 16 Cr. App. R. (S) 537;
Lyons (1994) 15 Cr, App. R. (S) 460;
Court (1989) AC 28;
Smith & Hogan: Chapter 14
v. INCEST
Chitambala v The People
vi CHILD ABUSE

THE PROTECTION OF RIGHTS TO PROPERTY

(c) OFFENCES AGAINST PROPERTY
For a thing to be stolen it has to be property. The right to property is an exclusive
right but not an absolute right. Others must desist from interfering with somebody
else’s property. They are under a legal prohibition not to use property contrary to the
owner’s rights and the owner can use the property as he/she wants and can even
destroy it. The right to property presupposes ownership. The important aspect of
ownership is possession. An owner has a right to use, manage and right to receive
income from it. There should be distinction between personal and real property.
Personal property is movable and Real property is immovable. Property also includes
things in action e.g., cheques.

21
 Money in the bank does not belong to the account holder as the account holder
is merely a creditor.
i. THEFT – ss. 264,265, 270-272,275,277,278,281 of the Penal Code CAP. 87.
(i) Definition, S. 265 (1)
“A person who fraudulently and without claim of right takes anything capable of being stolen,
or fraudulently converts to the use of any person other than the general or special owner thereof
anything capable of being stolen, is said to steal that thing.”

(ii) Elements of Theft Section 265

In order to constitute theft there must be proof of all ingredients of the
offence under Section 265 (1) as follows:

1. taking – fraudulently/without claim of right;

2. of property,
3. capable of being stolen;
4. belonging to another – general or special owner; must be owned, and,
5. with an intent to permanently deprive the owner of the property.

‘Special owner’ under section 265 (6) includes a person holding a lien or any right
arising from or dependent upon the possession of the thing.
1. Taking/ Appropriation
Section 265 (5) stipulates that:
“A person shall not be deemed to take a thing unless he moves the thing or causes it to move.”
The commonest is taking property away but it includes destroying property, treating
property as one’s own and pledging or selling it without the consent of the owner. If
property is initially taken with the consent of the owner it can be appropriated if it is
kept after it should have been returned. It is sufficient that one assumes one or more of
the rights of the owner. It amounts to theft when the taking is accompanied by
dishonesty and other ingredients of the offence.

22
R v James Walsh- larceny – lifted bag from bottom of the boot of a coach. it was held
that it was complete asportation.

R v Wilkinson 1 hale 508

Keys tied to string of his purse in his pocket – string of the purse still hung to the
owner’s pocket by means of the keys. This was ruled to be no asportation. The purse
could not be said to be carried away.

R v Lapier – The Defendant took earring from the ear but it got stark in the hair – it was
robbery of earring but not sufficient carrying away.

R v Cherry Got to a wagon where a bale of goods lay in a horizontal

The property must be fraudulently taken or taken without a claim of right.

Fraudulently/without, claim of right

In Gosh (1982), the court of appeal set a two-stage test for fraudulence or dishonesty:
(i) The jury must decide if Defendant’s behaviour was dishonest by the standard of the
ordinary decent person. If it was not, he is not guilty.

(ii) if his behaviour was dishonest by those ordinary standards defendant is nevertheless
not dishonest unless he realised that people would so regard his behaviour

In Muzyamba v T P (1975) ZR 83;

A stray bull was found amongst the appellants herd and he kept it. He was charged with
stock theft and at the trial he first claimed the bull was his but later qualified this by
saying it had destroyed his maize and he was keeping it until the owner compensated
him. He appealed on the defence that he had a bona fide claim of right to keep the bull
until he got compensation for destruction of his maize.

23
Baron DCJ alluded what the Supreme Court had said in the case of Mwanachingwala and
The People and concluded that:
“In the first place counsel very properly conceded he made no suggestion in cross-examination
of the prosecution witnesses that he was retaining the bull until his claims had been paid; instead that
the bull was his and even went to the extent of producing one of his cows alleging that she was the
mother of the bull. The magistrate believed this evidence given by the prosecution witnesses and he
was fully entitled to believe it. This evidence, as we have said, negatives the defence of bona fide claim

of right and the appeal against conviction must therefore be dismissed.” Sentence had changed
from no minimum to minimum on a date four days before the sentence was passed and
the court held that the new sentence applied.

In Mwachilama v The People (1972) ZR 287; the Supreme Court in this case said:
“The defence of a bona fide claim of right made in good faith is not confined to those cases
where an accused person believes that the property in question was his or had become his; it is
applicable also in those cases when the accused had bona fide belief that he has a right to keep or deal
with somebody else’s property.”
“…. It is not necessary for the claim of to be valid or indeed, as the authorities make clear, is it
necessary for it to be reasonable; all that is required is that the belief in the validity of the claim be
honestly held. But of course if the alleged claim is unreasonable this may well be a factor to be taken
into account by the court in deciding whether it was honestly held.”

One must have an honest belief that he had a claim of right to the property. In
Malamula (1962) R & N 553 The accused owned an ox cart which he hired to the
complainant at a fee. When complainant brought back the ox cart he paid the fee but
the pump was lost. The accused demanded compensation that was not forth coming so
he went to complainant’s house and collected a bicycle belonging to the complainant.
He was convicted of theft and on appeal to the High Court; the Court quashed the
conviction that the public prosecutor had failed to negative the accused’s claim of right
to keep the bicycle to enforce payment.
2. Property
Theft is against property. A thing must be of values in order to be considered as
property.

24
‘Property’ is defined under section 4 to “include:
“any description of real and personal property, money, debts, and legacies, and all deeds and
instruments relating to or evidencing the title or right to any property, or giving right to recover or
receive any money or goods, and also includes not only such property as has been originally in the
possession or under the control of any person, but also any property into or for which the same has
been converted or exchanged, and anything acquired by such conversion or exchange, whether
immediately or otherwise.”

3. Capable of being stolen

If it is inanimate, it is not living. A live tree is severed in order to be capable of being
taken i.e fruit, tree, and flowers not grown in a pot.
Capable of being stolen - section 264:
In order for a thing to be capable of being stolen a thing must be:
a. inanimate,
b. movable, section 264 (2) and 265(5)
c. severed in order to be/made movable;
d. animals, wild/not ordinarily found in a condition of natural liberty in
Zambia, property of any person, & confined or have escaped from
confinement;
e. animals, wild/ ordinarily found in a condition of natural liberty in Zambia,
property of any person, & confined or pursued while escaping from
confinement;
f. animals, wild in state of confinement i.e. in a den, cage, sty, tank or
small enclosure to stop escape and owner can take possession at his
pleasure;
g. Wild animals in a condition of natural liberty not capable of being stolen,
but dead bodies can be stolen;
h. Products or parts of animals are capable of being stolen.
Thus
(i) Land cannot be generally stolen

25
 (ii) Picking of wild plants, mushrooms for sale or reward is not theft
(iii) Wild animals cannot be stolen unless they are or are about to be reduced
into the possession of another or when dead are capable of being stolen.
However, to cause a reduction in a person’s account is to appropriate his intangible
property for which he has a right to sue the bank by the amount the account is reduced.

4 belonging to another – general or special owner; and,

Property must be owned
Property is regarded as belonging to the person having possession or control or having a
proprietary right or interest in it.
Theft is against possession so that the general owner can steal his own property from
the special owner/someone with a lesser interest provided he has the necessary mens
rea.
Section 265 (6) defines ‘special owner’ as “any person who has charge or lien upon a thing in
question, or any right arising from or dependent upon holding possession of the thing in question .”

In Rose v Matt (1951) 1 Q B. 810, Matt deposited a clock for a model aircraft
engine that he would pay the money later and he retrieved the clock for fear that it
might be sold. It was held that he had stolen from the bailee and it did not matter that
he would not have claimed payment for its loss.
R v Turner (No.2) (1971) 1 WLR 901;
Turner took his car to the garage for repairs. After it was repaired he took it from where
had been parked to avoid paying for the repairs. The Court held that at the time it was
taken for repairs the car ‘belonged to the repairer’ that had control over it.

5. Intent to permanently deprive the owner of the property

Under Section 265 (2) (a) to (e) the following intents:
(a) an intent to permanently deprive the owner of the property;
(b) an intent to use it as a pledge or security;

26
(c) an intent to part with it on a condition as to its return which the person taking or
converting it may be unable to perform;
(d) an intent to deal with it in such a manner that it cannot be in a condition it was
at the time of taking/conversion;
(e) In case of money, intent to use it at will though he intends to replace or repay
the money.
Under Section 265 (4) of the penal code
“When a thing converted has been lost by the owner and found by the person who converts it,
the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or
converting the thing does not know who is the owner, and believes on reasonable grounds that the
owner can not be discovered.”

THEFT BY FINDING
If its owner abandons property then he relinquishes ownership in it, a person
subsequently taking it acquires the property rights, and consequently there is no theft.
However, theft by finding occurs when the owner had lost the property and therefore
not relinquished his rights in it.
In Soko v R, (1961) R & N 847, (F.S.C.):
The appellant found a copper wire in the bush. He left it there and returned a
few days later to find it still there. He believed it had been there for some time
abandoned and without an owner. The appellant arranged for another person to pick
up the coil in a tractor and they took it to a scrap yard to sell it. When questioned the
appellant thought the wire was not abandoned and he took to his heels. There was no
indication on the wire of origin or ownership; and the place where it was found had no
clues that could lead to the owner. No owner was traced. He was charged with theft by
finding and convicted. On appeal, the Federal Supreme Court considered three defences
as follows:
- That the coil was in fact abandoned and had no owner therefore no theft to
take it.
- That the appellant believed that the coil was abandoned

27
Section 265 (4) quoted in the case.
The Court said, “the magistrate correctly stated that there were two elements –
(i) belief that the owner cannot be found and
(ii) reasonable grounds for such belief.”

The Federal Supreme Court allowed the appeal.

For theft by finding the goods have to be lost and the defendant must believe that the
owner cannot be found.
The People v Olivo (1981) 420 N. E 2nd 40
Lawrence v MPC (1972) AC 626 (HL);
R v Gomez (1993) AC 442 (HL);
R v Hicks (2001) 2 AC 241 (HL);
‘CONSTRUCTIVE’ THEFT
Under the English Larceny Act of 1916 which is applicable to Zambia by
virtue of CAP 5 (i) (2) states that “ (i) the ‘takes’ included obtaining possession (a) by
trick; (b) by intimidation; (c) under a mistake on the part of the owner with knowledge
on the part of the taker that possession has been so obtained; (d) by finding, where at
the time of finding the finder believes that the owner can be discovered by taking
reasonable steps;”. For clarity here, ‘constructive theft’ relates to ‘constructive taking’.
It should be remembered that taking is only one part of the complete crime of theft.
(a) Theft by trick
Where the victim intended to part with possession only because of the trick then
the offence is theft. Here the cases concerned owners.
In R v Pear (1779) 2 East P.C. 685, the accused hired a horse from the
complainant for one day. He gave false address. He said he would return the horse that
evening but he went and sold the horse. Since the complainant had only passed
possession, the crime was theft by trick.
In R v Patel 22 (1) K.L.R. 30 The Complainant went to accused’s shop to buy a
lamp. The defendant had no lamps but persuaded her to give him 9/- so that he could
have a lamp when the new stocks arrived. A few days later when he asked for a lamp
the accused said he did not have. The Court held that the complainant passed

28
ownership of the specific coins and not the value, so he had relinquished ownership
therefore there was no theft.
In R v Chungu, V NRLR 681 The accused agreed to buy the complainant’s fish for
£7. He falsely told the complainant that he had a £10 note in his hut and the
complainant asked him to produce change. The complainant thought he had given the
accused £3 pounds change but by mistake he gave him £3 10/- 0d. The accused went
outside pretending that to count the money and ran away with it. Here the complainant
expected to get £10 and not to see £3 and the accused was convicted of theft of the
10/-.

(b) Theft by intimidation

This is a situation where the accused had caused the owner to pass possession of
property out of fear of consequences on failure to do so.
McGrath (1870) LR 1 CC R 205, the prisoner acting as an auctioneer at a mock
auction knocked down a piece of cloth to the prosecutrix for 26/-, she not Having bid, as
he knew. She denied that she had bid; the prisoner asserted that she had, and must pay
before she could leave the auction room. She tried to leave but was prevented from
doing so. Finally she paid the 26/- and left with the role of cloth. It was held to be theft
by intimidation.
(c) Theft by mistake
Theft under a mistake on the part of the owner with knowledge on the part of
the taker that possession has been so obtained
(d) Theft by finding is as discussed before.
Sections 266- 272
Sections 266,267, 268 and 269 deals with a variety of thefts in relation to an
agent and the ownership of property he is dealing with. In the following cases, concern
the ability of a servant or agent to pass ownership:
Under section 266 (1) when an agent pledges (raises money) on his masters
goods he is not guilty of theft if the money he raises is equal to or below what is legally

29
owed to him by his master. If no money is owed to him he is guilty of theft; Section 265
(2) (b).
Under section 266 (2) where a servant contrary to his master’s orders feeds his
master’s food to the master’s animals it is not theft
Under section 267 a person who receives money with a direction to apply it to
any purpose, such money is deemed to remain the property of the person from whom
the money was received until the direction has been complied with. If it is used,
otherwise it becomes theft.
Wainina v R (1959) E.A. 601 (K)
Under section, 268 where a person receives property with instructions requiring
him to sell it and the proceeds are to come back to the principal or to be delivered to
another person then the proceeds are deemed the property of the principal or until the
direction has been complied with. If the property or proceeds have been
misappropriated, it is theft.
Williams & Phillips (1957) 41 Cr. App. R. 5, the agreement with the dustmen’s union that
was prominently displayed was to sell the refuse and share between the Corporation
and dustmen. The appellants sold some refuse and kept the money. Lord Goddard, LCJ
stated that:
“The first point that is taken here, that he property was abandoned, is on the face of it
untenable. Of course, that is not so. If I put refuse in my dustbin outside my house, I am not abandoning
it in the sense that I am leaving it for anybody to take it away. I am putting it out so that it may be
collected and taken away by the local authority, and until it has been taken away by the local authority
it is my property. It is my property and I can take it back and prevent anyone else from taking it away. It
is simply put there for the Corporation or the local authority, as the case may be, to come and clear it
away. Once the Corporation come and clears it away, it seems to me that because I intended it to pass
from myself to them, it becomes their property. Therefore there is no ground for saying that this is
abandoned property. As long as the property remains on the owner’s premises, it cannot be abandoned
property.
“It is wholly untenable proposition to say that the refuse which a house holder puts out to be
taken away is abandoned. Very likely he does not want it himself and that he puts it in the dustbin. He
puts it in the dustbin, not so that anybody can come along and take it, but so that the Corporation can
come along and take it. Once the servants of the local authority have come and taken it and put it in the

30
Corporation carts, it seems to me beyond any question that it is in the constructive possession of the
Corporation.”
“The question is: Were they acting honestly? That is the test. Of course, they were not acting
honestly. They knew perfectly well what their duty was, what they had to do with this refuse, and that
if they appropriated it to their own use they were stealing it”

The Court found that they had the right intent and dismissed the appeal.
Under section 269 when a person received money on behalf of another, the
money is deemed the property on whose behalf it is received. It the money is
misappropriated it is theft.
Under section 270 deal with people having part ownership in an article and if
they deal with the article in such a manner as to destroy the other part owners rights
without their permission then they can be guilty of theft not withstanding that they
have a right to some part of the article.
Under section 271 a husband and wife cannot steal from each other unless they
are ling apart. However if someone else induced either spouse to give him the known
property of the other provided the mens rea exists it is theft.
Under Section 272 This is the only section that states that theft is a crime. The
other sections either describe theft or state certain circumstances under which the
offender is liable. This section states that theft is a felony and is punishable with 5 years
imprisonment. For instance, section 277 is a punishment section for theft by pubic
servant to 15 years and section 272 is the section constituting the crime.

AGGRAVATED THEFTS ss.273-281 of the Penal Code Cap 87

These thefts are serious because of the special circumstances connected to the stealing.
These circumstances include the type of article stolen, the place from where it is stolen,
the manner in which it was stolen or the type of person stealing.
The Article stolen
a) Wills

31
Under section 273, there is a ten-year sentence for theft of testamentary documents,
which are, wills drawn up by an individual stating how he/she wishes his property to be
distributed after he died.
b) Postal Matters
Under section 274 theft of a postal matter is also punishable by ten years amplified by
section 34 of the Postal Services Act CAP 470.
c) Domesticated Animals
Stock theft carries a minimum of seven years for a second offender and a maximum of
15 years. The list of animals does not include camel, chickens or other fowls. Look at
section 286 on’ killing with intent to steal’. If the accused kills one of the animals listed,
he is liable to the aggravated theft but if he kills an animal not listed, he is liable to 5
years under section 272 under simple theft.
c) The offender is liable to 15 years imprisonment and forfeiture of the property for
stealing of copper cathodes, copper bars, cobalt, lead, zinc or vanadium not
withstanding that no one is convicted. However, what is used for conveyance will only
be forfeited if it is proved to the Court that the owner did consent and had knowledge
or was negligent or lacked care.

The Place from Where Goods Are Stolen

These offences carry a higher sentence because of the place from where it has been
stolen. Section 276 states that:
“If a theft is committed under any of the circumstances following, that is to say:
(a) if the thing is stolen from the person of another;
(b) if the thing is stolen in a dwelling-house and its value exceeds one hundred and fifty fee units or
the offender, at or immediately before or after the time of stealing uses or threatens to use violence to
any person in the dwelling-house;
(c) if the thing is stolen from any kind of vessel or vehicle or place of deposit used for the
conveyance or custody of goods in transit from one place to another;
(d) if the thing stolen is attached to or forms part of a railway;
(e) if the thing is stolen from a vessel which is in distress or wrecked or stranded;
(f) if the thing is stolen from a public office in which it is deposited or kept;

32
(g) if the offender, in order to commit the offence, opens any locked room, box, or other
receptacle, by means of a key or other instrument;
the offender is liable to imprisonment for seven years.”

Subsections (c) to (g) are self-explanatory but there is need to expand on (a) and (b).
a) Theft from Person
This is different from robbery and aggravated robbery because of the absence of
violence. It is however important that the thing must be stolen from the person. For the
theft to be complete, the thing stolen must be completely removed from the person.
Once the thing is completely detached from the person, the slightest removal will
suffice. R v Taylor (1911) 1 KB 674
b) Theft from a Dwelling House
This offence is similar to Housebreaking, burglary and robbery when committed
in a dwelling house.
Dwelling house is defined in s. 4 and that it is not as wide as ‘building, tent or vessel
used as a human dwelling’. However, for the crime to be complete there must be one
of the two conditions fulfilled:
i) The value of the article stolen from the dwelling house exceeds one hundred and fifty
fee units or K 27,000. A fee unit is equal to K180.00, or
ii) Violence is used or threatened immediately before, during, or immediately after the
time of stealing to ANY person in the house.
In this case the article is under the ‘protection of the house’. Goods stolen at same time
must total K27, 000.00 or violence is used in order for the actus reus to be complete.
The violence is applied to anyone in the house and is wider than robbery, which requires
and ulterior or specific intent.
c) Theft from a locked place
Where evidence is insufficient to support a charge of housebreaking or entry, it may
support a charge under this section.
The Type of Person Stealing

33
Originally, these cases dealt with custody but under our penal code, it is taken care of
by the word ‘converts’. They require that the thief be employed by the owner of the
property he steals
a) Theft by Public Servant s. 277 of the Penal Code CAP 87
The offender must be a person employed in the Public Service, and
The thing stolen is the property of the Government.
b) Theft by Servant
If the offender is a clerk or servant, and
The thing stolen is the property of the employer.
Kasosa v R (1960) 6 NRLR 86 the appellant was convicted of two counts of general
deficiency of cash and goods.
. Where a person receives property on behalf of his employer and keeps it sections 267,
268 and 269 applies as follows:
a) Theft by Public Servant s. 277 of the Penal Code CAP 87
The offender must be a person employed in the Public Service, and
The thing stolen came into his possession by virtue of his employment.
b) Theft by Servant
If the offender is a clerk or servant, and
The thing stolen came into his possession on account of his employment.
Kasosa v R (1960) 6 NRLR 86 the appellant was convicted of two counts of general
deficiency of cash and goods.
In The People v Nasilele (1968) ZR 167, the accused was a court clerk who accepted
monies, from defeated parties, for delivery to successful parties in disputes heard by the
court. He kept the monies. The sums involved did not belong to his employer. In
accepting the monies, he was acting contrary to his employer’s regulation. The Court
found him guilty of theft by servant: the only criterion was whether the parties gave him
the monies because of his job. The money came into his possession by virtue of his job.
c) Theft by Director s. 279

34
Under this section, a director is a person in a position of trust for this reason the penalty
imposed is higher when the trust is abused by theft of company property.

Section 280 should be read with sections 266 to 269.

d) Theft by Tenant or Lodger s, 281
A tenant or lodger who steals chattels or fixtures worth one hundred and fifty fee units
or the value of K27, 000.00 is liable to seven years imprisonment.

THEFT OF MOTOR VEHICLE S.281A

Theft of a motor vehicle is aggravated by due to the nature of the thing stolen. A
motor vehicle is defined under section 2 of the Roads and Road Traffic Act CAP, 464 as:
“Motor vehicle" means any mechanically propelled vehicle intended for use, or capable of being used,
on roads unless such vehicle shall have been specifically excluded by regulation from this definition.”

The offence carries a maximum sentence of and a minimum sentence of 5 years for a
first offender.
Section 281B is the section that deals with forfeiture of motor vehicle by the
police and the procedure to be followed for it to be disposed off.
Hatchard & Ndulo: pp 61-66;
Clarkson & Keating: p. 739-804;
Smith & Hogan: Chapter 16;

THE DOCTRINE OF RECENT POSESSION

The doctrine of recent possession is merely a discretionary presumption of fact.
Sometimes the only evidence against the accused is that he is found in possession of
stolen goods shortly after they were stolen. So where the accused is found in possession
or recently stolen property the court may infer that either:
(a) the accused is a thief, or
(b) the accused is a guilty receiver.
According to Archibald 36th edition, 1535:

35
(a) “Where it is proved that property has been stolen and that very soon after the theft the accused
has been found in possession of the property it is open the [court] to convict him of breaking and
entering”

(b) “where the premises have been broken into and property stolen there from and very soon after
the breaking the accused has been found in possession of the property it is open to the [court] to

convict him of breaking and entering”, Archibald 36th edition, 1830.

His possession raises a slightly strong inference of his guilty connection with any further
offence, which accompanied the theft, i. e. burglary, arson, murder.
In Fanwell v R [1959] 1 R & N 81, the appellant with Musonda were found in possession
of property stolen from room in a mine compound. Facts were that on the night of the
theft and house breaking the two had visited a friend with clothes worth £25. The
following day Musonda was found wearing articles of stolen property while the
appellant had sold a stolen shirt. The rest of the property was found at appellant’s
house. In defence, the appellant accused Musonda of the theft. They were both
convicted of Housebreaking and theft. Clayden FJ quoted Diplock in DPP v Nieser [1955]
“It may, we think, be misleading to speak of the ‘doctrine’ of recent possession in cases of
receiving. It is a convenient way of referring compendiously to the inferences of fact which, in the
absence of any satisfactory explanation by the accused, may be drawn as matters of common sense
from other facts, including , in particular, the fact that the accused had in his possession property which
it is proved had been unlawfully obtained shortly before he was found in possession of it.”

In order for the presumption to arise

- the property which is the subject of the offence must be proved actually
stolen;
- on the facts, it is the only reasonable inference possible to be drawn.
Here are some instances in which the doctrine has been applied.
FOUND TO BE RECENT
Time Item Case Authority
12 hours generator R v Macharia 22 K.L.R. 50
10 am on day after theft property R v Mayhon 13 Cox. C.C. 275
4 days blankets and arson R v Bakari 16 E.A.C.A. 84
10 days Sheep R v Langmead L & C 427

36
3 months Motorcar
4 months Bonds R v Livock (1914) 10 Cr. App. R. 264

FOUND NOT TO BE RECENT

Time Item Case Authority
6 months horse R v Cooper (1852) 3 C & K 318
7 months tyre pump Ibrahim v R (1960) E.A. 43 (T)
8 months bale of silk R v Marcus (1923) 17 Cr. App. R. 191
16 months Anything Anon (1826) 2 C & P 459

ii. FORGERY

iii FALSE PRETENCE

For false pretences or deception there must be a false representation/deception,
a causal link between the obtaining and the false pretence and dishonesty
Section 308 defines false pretences as:
“Any representation made by words, writing or conduct, of a matter of fact or of law, either past or
present, including a representation as to the present intentions of the person making the
representation or of any other person, which representation is false in fact, and which the person
making it knows to be false or does not believe to be true, is a false pretence.”

So the false representation or deception is by words, writing or conduct as to facts or as

to law. This includes false representation as to the present intentions of any person. For
mens rea either deliberate or recklessness representation will suffice.
In M.P. C v Charles (1976) the defendant used a cheque and a cheque card to
obtain gaming chips knowing that he had exceeded his authorised overdraft limit. He
was charged with obtaining by pecuniary advantage (an overdraft) by deception
contrary to section 16 (2) (b) of the Theft Act 1968. The House of Lords held that the

37
defendant had, by issuing the check backed by a cheque card, portrayed by implication
that he was allowed to use the card, and his conduct was a sufficient deception.
In Firth (1989) a doctor who failed to inform the NHS hospital concerned that certain of
his patients were private patients was not charged hospital services in respect of those
patients was held to have made a false representation by omission to act or speak.
False pretence is not the same as cheating or obtaining by pecuniary advantage.
The distinguishing feature between theft and false pretences is that under theft you get
only possession and under false pretences you get both possession and ownership.
The deception must be the cause of the obtaining. The false representation must
have operated on the victim mind and inducing the victim to accept the representation
as true.
In M.P.C. v Charles Despite the fact that the casino manager checked that the
defendant’s card was backed by the amount in his cheque guarantee card and ensured
that the number on the guarantee tallied with that on the cheque. Even though the
defendant signed the cheque in his presence which, ensured that the defendant’s bank
will honour it, the House of Lords still held that, the representation that he was
authorised to use the guarantee card on that transaction caused the obtaining of the
overdraft, since if the casino manger had known the truth he would have refused to
accept the cheque.
Continuing representation
In DPP v Rai (1999), the defendant applied to the Council to make renovations to
his house for the benefit of his aged mother. The council granted the application and
agreed to provide the renovations. In July 1997, his mother passed away. The Defendant
remained silent about the death of the mother while the council carried out the
adaptations from August 1977. The court applying the decision in DPP v Ray (1974) AC
370; held that the defendants conduct amounted to a continuing representation that his
mother was alive and that the renovations works were intended to benefit her. The
remaining silent and allowing the council to proceed with the work was a clear
dishonesty.

38
In addition the prosecution prove dishonesty as in Gosh‘s case

Obtaining Goods by False Pretences

Under section 309, a person commits a debt by false pretences.
Section 309 provides that:
“Any person who, by any false pretence and with intent to defraud, obtains from any other
person anything capable of being stolen, or induces any other person to deliver to any person anything
capable of being stolen, is guilty of a misdemeanour and is liable to imprisonment for three years.

Obtaining Pecuniary advantage by False Pretences

Under 309A (2) (a) which states that:
“(2) The cases in which a pecuniary advantage within the meaning of this section is to be regarded as
obtained for a person are cases where-
(a) any debt or charge for which he makes himself liable or is or may become liable (including one
not legally enforceable) is reduced or in whole or in part evaded or deferred; or”

The section can be divided into nine possible variations. All of them require proof of
dishonesty and false pretence of deception. These are:
A debt for which a person is liable by false pretences
i) is deferred,
ii) is reduced,
iii) is evaded,
A debt for which a person makes himself liable by false pretences
iv) is deferred,
v) is reduced,
vi) is evaded.
A debt for which a person may become liable by false pretences
vii) is deferred,
viii) is reduced,
ix) is evaded.

39
 DPP v Turner expands the evasion of a debt to cover for the common criminal
who gives a dud cheque in order to evade payment. The court decided in Turner’s case
that deferring and reducing of debt is bilateral as you need consent of the victim to
defer for reduce a debt. Foe evasion it is unilateral, that is, you do not require consent
to evade a debt. For example you do not need consent to issue a dud cheque to a
creditor as you decide to do so on your own and he finds out later that it is a dud
cheque. You equally do not need consent to run away to another place to avoid
payment, Allen (1984). Evasion of a debt does not need consent. One must know that
payment is required or expected he must be dishonest and he intends to avoid payment
permanently.
R v Watson (1997) WL 342497;
R v Silverman (1988), 86 Cr. App. R., 213;
Holt (1981) – plan to evade paying for a meal at a restaurant swatted by an off duty
policeman eating at another table who heard them convicted of attempt to commit an
offence under section 2 (1) (b) of the Theft Act, 1978.
M.P. C v Charles (1976) - evading
R v Doukas (1978) 1 WLR 372;
R V Chungu (1954) 5 NRLR 681;
Clarkson & Keating: p. 805-835;
Smith & Hogan: Chapter 16; (distinguish between ‘false pretence’ and ‘deception’)
Obtaining goods by False Pretences
The actus reus of this offence is the accused person acted fraudulently with intent to
permanently deprive the owner, or that he deliberately or recklessly made a false
representation.
It is essential to prove that:
- the accused person made a false representation to the victim and the latter
believed it to be true; and
- as a result of such belief the accused obtained goods, or the victim was induced
to deliver goods;

40
- the accused person obtained ownership or possession or control by false
pretences

ROBBERY AND EXTORTION Chapter XXVIII - ss. 292-295

Robbery and extortion are extensions of theft. The taking or conversion of the property
is accompanied by use of violence or threats of use of violence or menaces
iv. Robbery: s. 292 of the Penal Code CAP. 87.
Section 292 stipulates that:
“Any person who steals anything, and, at or immediately before or immediately after the time of
stealing it, uses or threatens to use actual violence to any person or property to obtain or retain the
thing stolen or prevent or overcome resistance to its being stolen or retained, is guilty of a felony of
robbery and is liable on conviction to imprisonment for fourteen years.”

Robbery is a felony and is created by section 292 of the Penal Code. Its essence is
that there must be a theft and threatened or actual use of violence at the time of the
theft, or immediately before or immediately after the theft. It is more serious than theft.
Therefore the actus reus of robbery is theft and threatened or actual use of force. The
mens rea for theft applies to robbery but the element of an intention to use force is
added.

There must be theft and violence. The actus reus of theft applies. The defence of ‘claim
of right will only excuse theft but not violence. R v Hemmings (1884) 4 F. & F. 50;
R v Skivington (1967) 1 ALL E. R. 483
Violence
The Act talks of actual violence. Since it is not defined check dictionary for the meaning.
The common factor in any dictionary is the use or threatened us of force that suggests
injury.
The violence
- can be directed towards any person or property;

41
 - must be used for purpose of obtaining or retaining the thing stolen, or to
overcome resistance to its being stolen.

Mugala v the People (1975) ZR 282 (SC)

Aggravated Robbery
Aggravated robbery is created by section 294 of the Penal Code is more serious
than robbery; in fact the law regards it as the most serious offence relating to property.
A minimum punishment of fifteen years imprisonment is prescribed for this offence; but
where a firearm was used in the robbery there is a mandatory death sentence to be
imposed.

There must be a theft obviously but this time around the threat or force required
for robbery must be accompanied by the accused being armed with an offensive
weapon. The mens rea for theft applies but intention to use force is added.
Mwape v. The People (1976) ZR 160
Haonga v. The People (1976) ZR 200

Haonga & Ors. v The People (1976) ZR 200

Mwape v The People (1976) ZR 160, Baron DCJ delivering Judgment said
“It is unnecessary for the person (against whom the violence is used) to be the immediate
custodian of the thing stolen; it is sufficient if in the words of [section 294 of the Penal Code], the
violence is used or threatened to obtain or retain the thing stolen or to prevent or overcome resistance
to its being stolen or retained.”

Jonas Nkumba v The People (1983) ZR 103 (SC)

F. Chongo
P.N. Makola v Curley (1997) WL SCZ Judgment No 10 of 1998

42
v. BURGLARY, HOUSE BREAKING & SIMILAR OFFENCES Sections 300-307 of the
Penal Code CAP. 87
For the offence of burglary or house breaking there must be:
a. breaking,
b. entry,
c. building tent or vessel used as a human dwelling
d. the ulterior or specific intent.
A. BREAKING
Section 300 defines breaking and entering.
Section 300(1) defines breaking to include “opening by unlocking, pulling, pushing, lifting, or
any other means whatsoever, any door, window, shutter, cellar flap, or other thing intended to close or
cover an opening in a building, or an opening giving passage from one part of a building to another.”
And Section 300 (3) adds “entry by chimney or other aperture of the building permanently left open for
necessary purpose, but not intended to be ordinarily used as a means of entrance.”

So in this case there is entry or attempted entry when:

f) a person moved anything intended to cover an opening.
Opening an interior door is also breaking, see R v Wenmouth (1860) 8 Cox C.
C. 248
g) A person enters by an aperture left permanently open and not intended as a
means of entrance.
Thus, entry by a temporary hole in a wall while repairs are being carried out
would not be breaking; but entry though a hole in the roof left permanently
open for purposes of light is breaking and entering within the section. R v
Springs and Handcock (1334) 174 E.R. 122
Is a window a permanent aperture? See also R v Smith (1821) 1 Mood C.C.
178.
h) Section 300 (3) also includes entry by threats or collusion.
B. ENTRY

43
The definition of entry is found in section 300 (2) which states that “a person is
deemed to enter a building as soon as any part of his body or any part of any
instrument used by him is within the building. Thus a forepart of a finger was held to be
sufficient entry in R v Davies R & R 449. However, an instrument used to bore a hole
through a panel of a door was held not to constitute entry.

C. BUILDING TENT OR VESSEL USED AS A HUMAN DWELLING

Dwelling house is defined under section 4 as” a building or structure… kept by the
owner for residence… for himself, his family or servants…; a building… if there is communication

between the building… and the dwelling house”. In Musa v R, (1959) 1 R & N 1 (NY.), suggested
that a human dwelling is no the same as dwelling house because the former is wider
than the later as it included hotels and rest-houses.
Tent is not defined but the Oxford English Dictionary describes it as “a portable
shelter of canvas, cloth etcetera, supported by poles and secured to tent pegs driven into the ground”.

In Mumba v The People (1971) ZR 125; Silungwe A.J. in this case confirmed the
English law that burglary can not be committed in a tent because it is a temporary as
opposed to permanent edifice and that the “same view would prevail in Zambia.”

Vessel is defined as including “a ship, boat and every other kind of vessel used in navigation either
on the sea of inland waters and includes aircraft.”

School House/Shop:
These are specified building and regard is had to the type of room. These were
left out e.g. garage, pavilion, workshop, and club. A braking into a club store house
becomes store breaking.
D. THE ULTERIOR OR SPECIFIC INTENT
There must be an intention to commit a felony. This felony is usually theft but
rape and arson may suffice. If it is a misdemeanour it would be probably a civil wrong or
criminal trespass under section 306 of the Penal Code, chapter 87. The intent must
either:
o Exist at the time of the entry; or

44
 o Formed after entry.
BURGLARY, HOUSE BREAKING
Under Section 301 a person who
“(a) breaks and enters any dwelling house to commit a felon therein.
(b) Having entered any dwelling house with intent to commit a felony therein, or having
committed a felony in such a dwelling house, breaks out thereof;

commits a felony called house breaking if it is during the day and burglary if it at night .

Night is defined in section 4 as the interval between seven o’clock in the evening and six
o’clock in the morning or 19.00 and 06.00 hours.
Thus the elements of Burglary and theft under section 301 (a) are:
Breaking
1. Breaking into a human dwelling
Therefore, there must be breaking and entering of any building tent or vessel used
as a human dwelling
Mumba v The People (1971) ZR 125; convicted of burglary in a kitchen used by
where a number of persons were sleeping.
2. at night
3. with the intention to commit a felony
Entry into a dwelling house or the building with intent to commit a felony
Under Section 302 there must be:
o An entry,
o And the intent to commit a felony must exist at the time of entry
o or the person is in the building with an intent to commit a felony.
These are public buildings so there is no entry with intent.
Mohammed s/o Issa (1962) E.A. 392;

Breaking into a building and committing a felony

Under Section 303
The building entered into is a specified building i.e. Storeroom and therefore
commits Store Breaking. In this case there must be:

45
 a. a Breaking out,
b. the commission of a felony.
Under Section 304
The type of building involved is a specified building.
There must be:
a. a breaking in and an entry.
b. The intent to commit a felony must exist at the time of entry.
Fanwell v R. (1959) R & N 81;
Winford Kaleo v The People (1978) ZR 250 (SC);
State v Curley (1997) WL 242 286

RECEIVING STOLEN PROPERTY BELIEVED TO BE STOLEN OR UNLAWFULLY OBTAINED

ss. 318-320 of Penal Code CAP. 87
Offences involving receiving and disposal of stolen or unlawfully obtained
property are regarded as being more serious than theft because the recipient of such
property provides the thieves with incentives to continue the practice.

The Penal Code does not define ‘stolen goods’. However, to secure a conviction it must
be proved that the goods were stolen and that this fact was known to the accused
person or he must have had reason to believe that they were stolen. It would appear
that stolen goods include those obtained by false pretences, among others. It must be
noted that goods cease being stolen goods when they are restored to the owner or are
taken over by the police or when they are bought by a bona fide purchaser for value
without notice (as where one buys a stolen car in a market overt). The actus reus of the
offence consists of receiving and retaining stolen goods or goods unlawfully obtained.
Retention means keeping possession of the property; it is a continuing activity.

The mens rea consists of receiving or retaining the goods fraudulently and knowing or
believing them to have been stolen or unlawfully obtained. The test is a subjective one

46
and the accused must have actually known or believed the goods to have been stolen or
unlawfully obtained. It may not be sufficient to say that it would have been obvious to
any reasonable person that the goods were stolen or unlawfully obtained. Mere
suspicion that the goods were stolen or unlawfully obtained is not enough.
R v. Griffith (1974) 66 Cr. App. R 14
R v. Belleni (1980) Crim. L. R 437
R v. Hall (1985) 81 Cr. App. R 260
R v. Kanwar (1982) 2 All ER 528

To know when property stolen was received

To know when stolen property ceases to be stolen
The People v Chabala (1969) ZR 66;
Chezema v The People (1972) ZR 7;
Stephen Manda v The People (1980) ZR 116;
R v Kenwar (1982) 2 ALL E. R. 529;
Att-General’s Reference [No. 1 of 1974] (1974) QB 744.

h. FATAL OFFENCES AGAINST THE PERSON

a) HOMICIDE: ss. 199, 200, 203, 205, 221 of Penal Code CAP. 87
Section 200 of the Penal Code provides;
“Any person who of malice aforethought causes the death of another person by an
unlawful act or omission is guilty of murder”.

Clarkson & Keating: p. 631- 631;

Smith & Hogan: Chapter 12;
Ashworth: pp 263-317;
Thabo Meli v R. (1954) 1 ALL E.R. 889 (CA)
i. Murder (causation, malice aforethought, intention, recklessness, element
of murder includes causation during a year and a day rule) ss. 200, 207, 204, 201, 209 of
the Penal Code.
MURDER

47
Murder is defined in section 200 of the Penal Code. It is punishable by a sentence of
death or any other sentence where there are extenuating circumstances (section 201 of
the Penal Code). Under the common law murder is defined as:
“The unlawful killing of a human being under the queen’s peace with malice afore thought .”
The killing must be of a human being. A child becomes a person or human being
when it leaves the mothers womb alive that is when the child becomes capable of being
killed; Section 208 of the Penal Code Cap 87.
A person is dead when a person is rigid and no part of the body is alive. The time
within which a person causes the death of another is limited to a year and a day under
section 207.
The prosecution must prove three elements to establish the offence of murder:
i. Causing of death;
ii. By an unlawful act or omission;
iii. With malice aforethought.

a) Actus Reus of Murder

The actus reus of murder therefore is that the accused person caused the death of the
deceased by an unlawful act or omission. Section 207 of the Penal Code defines causing
death. Some of the circumstances when one is deemed to have caused the death of
another include:
(i) Inflicting injury in consequence of which the deceased undergoes surgical or
medical treatment which results in his death: R v Holland (1941) 2 Mood & R
351; section 207 (a).
(ii) It is immaterial that the medical treatment was proper or mistaken because
you take your victim as you find him. R v Jordan (1956) 40 Cr. App. Rep. 152
section 207 (b).
(iii) inflicting an injury which would not have resulted in death if the deceased
took proper care of it but due to careless handling of the injury he dies; R v
Hayward [1908} 1 Cox C C 692 section 207 (c).

48
 (iv) If an act, injury, or threatened violence hastens the death, section 207 (d). R
v Adams [1957} 1 Cox C C 692.
(v) Act or omission resulting in his death was accompanied by an act or omission
of the deceased; section 207 (e). R v Beige (1865) 4 F & F 504
Within a Year and a Day
The prosecution must prove that the accused caused the death of a human being
and the victim died within a year and a day. The act or omission of the accused person
must be voluntary and unlawful, but the cause of death need not be immediate even
though it must be direct. Where an accused person acts together with other persons he
may still be held liable or jointly liable with the others if his own act relates to the
murder. The requirement of a year and a day of the accused action was abolished by in
Britain by the Law Reform (Year and Day Rule ) Act 1996 so that proceedings no may be
commenced against a person who has previously convicted of ay other offence
connected with the resultant death. This has not been the case in Zambia.
In deciding whether the act of the accused person caused the death, the Courts
normally apply the ‘but for’ test, that is to say the victim would not have died but for the
accused person’s attack on him. In other words there must be a relationship between
the unlawful act and its consequences.
As has already been seen above, the causing of death by a lawful act is not
murder; it is justifiable. It has been noted that killing in self-defence or defence of
property, advancement of justice, or by accident or misadventure is lawful. Any killing
by an act or omission outside what the law justifies or excuses is unlawful.
b). Mens Rea of Murder
The mens rea of murder is malice aforethought. Section 204 of the Penal Code defines
this term. It refers to the mental element of the accused person at the time of the killing
(see the case of The People v. Njovu (1968) ZR 132). Malice may be express, implied or
constructive. Express malice describes an intention to kill or to do grievous harm; and
provided such an intention is proved, it is immaterial that the person killed is the one

49
intended or another person. Thus where a husband gives a poisoned fruit to his wife
with the intention of killing her, and the wife gives the fruit to the child who dies as a
result of eating that fruit, the husband is guilty of murder (see the case of R v. Kalebaila
2 NRLR 253).

It is as much murder to intend to cause grievous harm as it is murder to intend to

kill.
In The People v Njovu (1968) ZR 132 (HC), Blagden CJ stated that the prosecution must
prove the following elements beyond reasonable doubt:
i) That the accused caused the death of the deceased;
ii) by an unlawful act; and
iii) with malice aforethought.
Section 204 of the Penal Code outlines the various circumstances in which malice
aforethought will be deemed established.

Section 204:

“Malice aforethought shall be deemed to be established by evidence proving any one or more
of the following circumstances:

a) an intention to cause the death of or to do grievous harm to any person, whether such a person
is the person actually killed or not;

In Mathew Nyirenda v T P (1977) ZR 245 (SC) The appellant was convicted of murder for
causing the death of his grandfather by striking him in the back of his head with an axe.
Smith and Hogan Criminal Law 11th Edition at page 94, says: “intention” as mens rea for
murder means:
1. A result is intended when it is the actor’s purpose to cause it.
2. A court may also find that a result is intended, though it is not the actor’s purpose
to cause it when;
a) the result is virtually a certain consequence of the act, and;
b) the actor knows that it is virtually a certain consequence.

50
Section 204:
b) “knowledge that the act or omission causing death will probably cause the death of or grievous
harm to some person, whether such a person is the person actually killed or not, although such
knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or
by a wish that it may not be caused;’

In Dickson Siambukwa Changwa and Ifellow Hamuchanje v The People, (1989) ZR 144:
Ngulube C.J.
The appellants were convicted murder for causing the death of one Martin Chilimboyi
by throwing him out of a moving train. On appeal they contested their conviction on the
charge of murder on the ground that the court had convicted them without establishing
that they had acted with malice aforethought. The appeal was dismissed on ground
that from the facts at hand, it was clear that the appellants should have known that
their actions were going to cause death or grievous bodily harm to the deceased, thus
bringing them within the ambit of the malice aforethought prescribed by section 204 (b)
of the Penal Code.

Section 204:
c) an intent to commit a felony;
d) an intention by the act or omission to facilitate the flight or escape from custody of any person

who has committed or attempted to commit a felony.

1. Legal Justification:
a. self defence
i. the use of reasonable force to prevent a crime,
Defence of others,
Defence of property and
Mistake of fact.
Clarkson & Keating: p. 631;
Att-Gen. of Hong Kong v Tse Hung –Lit (1986) 1 AC 876;
Thabo Meli v R (1954) 1 ALL E.R. 889 (CA)
Smith & Hogan: Chapter 12;

51
 Grievous harm is defined as “any harm which endangers life or which amounts to
a maim or which seriously or permanently injures health or which is likely so to injure
health, or which extends to permanent disfigurement, or to any permanent or serious
injury to any external or internal organ, member or sense” (section 4 of the Penal Code).
On the interpretation of section 4 above, see the case of Television Chibuye v The People
(1978) ZR 43. Chibuye was charged and convicted of doing grievous harm. He butted a
woman on her face as a result of which she lost two teeth.
Where there is an intention to kill or cause grievous harm that intention may be
presumed to continue throughout the course of the actus reus. And if on the evidence
before court it is doubtful as to whether there was an intention to cause grievous harm,
the accused may be convicted of manslaughter instead of murder.
R v. Ojambo s/o Nambio 11 EACA 97
R v. Singh (1962) AC 188

It should be noted that in the majority of cases the intention to kill or cause
grievous harm may be inferred from the facts of the case. A court is at liberty to infer
express malice from the use of a lethal weapon by the accused, but there is no general
rule that the use of such a weapon conclusively proves an intention to kill or cause
grievous harm.

Implied Malice
Malice may also be implied as opposed to being express. This is so where a
person does an act causing death, which is intrinsically likely to kill, and which he knows
is likely to kill or cause grievous harm even though there is no evidence of express
malice.
Mongola v. R (1963) R&N 291

Constructive Malice

52
 Malice aforethought is deemed to exist where the accused acts with intent to
commit a felony, or with intent to facilitate the flight or escape from custody of any
person who has committed or who has attempted to commit a felony. There is
constructive malice in these two situations because it is not necessary to prove an
intention to kill or to cause grievous harm (express malice), nor the doing of an act
known to be likely to kill or to cause grievous harm (implied malice).
Chitenge v. T P (1966) ZR 37
R v. Tomasi s/o Oguruto and Elasu s/o Ejuru (1945) EACA

ii. MANSLAUGHTER: ss. 199, 202, 203 of Penal Code CAP. 87

Section 199 of the Penal Code created this offence and the punishment for it is in
section 202 of the said code. Manslaughter is distinguished from murder by the absence
of malice aforethought. It is therefore a residual offence to murder, which makes it
difficult to analyze. It may be committed in several ways but there are two main types of
the offence, namely voluntary manslaughter and involuntary manslaughter.
In voluntary manslaughter, the accused kills with the mens rea for murder but is
not guilty of murder due to certain extenuating circumstances, which the law deems as
reducing his criminal liability to manslaughter.
In Involuntary manslaughter, the accused person kills a person without malice
aforethought. The individual has done an unlawful Act likely to cause harm.
Alternatively, the individual was grossly negligent resulting in the death. The individual
has no mens rea but culpable of the cause of death. There is therefore an objective test,
that is, would a reasonable man have foreseen the consequences.
The killing in the following two situations is unlawful and amounts to
manslaughter, that is to say, where there is such provocation as reduces murder to
manslaughter, and where there is excessive use of force in defence of person or
property. However, these are not the only instances of manslaughter and the student
would do well to look up for more. Of particular interest and for present purposes is the
killing of another under provocation.

53
 PROVOCATION
Section 206 of the Penal Code defines provocation. Since section 206 appears to be
incomplete. Thus, it should be read in conjunction with section 205. The defence of
provocation is only available to murder, not to any other charge, although it may
mitigate sentence.
Provocation, where pleaded successfully, operates to reduce murder to
manslaughter. The essence of provocation is that the accused person kills another in the
heat of passion before there is time for the passion to cool. There is momentary loss of
self-control and the test applied by the courts in Zambia is that of an ordinary person in
the accused person’s community. It is not for the accused to establish provocation as a
defence. If there is any evidence of provocation, the court cannot convict of murder
unless it is satisfied that the prosecution has proved beyond all reasonable doubt
because either that there was no provocation as defined in the code, or if there was
provocation, that what was done in the assault could not be regarded as what an
ordinary person of the community to which the accused belonged, who had lost self-
control, might have done on the provocation given. (See the case of Chibeka v. R (1959)
1 R & N 476).

Elements of Provocation
The elements of provocation are as follows:
i. Killing in the heat of passion and without time to cool;
ii. The provocation must be sudden;
iii. There must be a wrongful act or insult;
iv. There must be loss of self-control which is what would happen to an ordinary
member of the community to which the accused belongs; and
v. The retaliation must bear a reasonable relationship to the provocation.

54
The court is entitled to take all the circumstances of the case into account in
determining whether there is sufficient provocation.
a) Wrongful Act or Insult
There must be a wrongful act or insult. This refers to provocative conduct (see section
206(1) of the Penal Code). In terms of the above section as read with its sub-section 2,
the provocative conduct may either be directed to the accused person or to any person
related to the accused in his presence.
The wrongful conduct must be sudden and must cause actual loss of self-control
in the accused person. The test to be applied is an entirely subjective one. The
requirement of loss of self-control entails that the accused person must suddenly and
temporarily lose his self-control, rendering him subject to intense passion as to make
him at that moment not master of his mind. Mere loss of temper will not suffice; and
those who easily get annoyed by the slightest oversight are excluded. The imperative
thing is that the accused person was unable to restrain himself from doing what he did.
Thus, a carefully planned revenge against an aggressor after lapse of considerable time
from the time of the provocative conduct negatives the defence of provocation.
R v. Ahluwalia (1993) 96 Cr. App. 133; (1992) 4 ALL E. R. 889

b) Loss of Self-control by Ordinary Person

It is necessary not only to show that the accused person lost his self-control but also
that an ordinary person in the accused person’s community would have lost his self-
control in the circumstances. The test applied is an objective one under section 206 (1)
of the Penal Code where “an ordinary person” is defined as an ordinary person of the
community to which the accused belongs.

This concept of the ordinary person under the Penal Code encompasses the diverse
backgrounds of the people of Zambia (see Ndulo: 1994). Therefore, local traditions,
beliefs and conditions can be taken into account in assessing the reaction of the

55
ordinary person to the particular situation. It is for the above reason wider than the
English law concept of the reasonable man.
James Chibangu v. The People (1978) ZR 37
Nyambe Mubukwanu Liyambi v. The People (1978) ZR 25
Morhall (1995) 3 All ER 659
DPP v. Camplin (1978) 2 All ER 168

c) Reasonable Relationship Between Retaliation and Provocation

The Penal Code does not define this concept. However, it means that the act which
caused death must have borne a reasonable relationship to the provocation. The
retaliation must not be excessive. Thus a man who killed his former mistress by inflicting
four blows on her head with a panga on the ground that she slapped him and spat at
him when he suspected her of having made off with a considerable sum of money was
convicted of murder as his mode of resentment was out of all proportion to the
provocation (see the case of Obiero v. R 16 EACA 139).
DPP v. Camplin (1978) AC 705; (1978) 2 All ER 168
R v. Amuli (1953) 4 NRLR 243
Duffy (1949) 1 ALL E. R. 932;
Clarkson & Keating: p. 651;
Hatchard & Ndulo: pp. 50-60;
Smith & Hogan: Chapter 12;
iii. Infanticide: s. 221 of Penal Code CAP. 87
iv. Child destruction: s. 208 of Penal Code CAP. 87
Definition of Child
i. Attempts and conspiracies
a) Attempts

b) conspirancies

56
 OFFENCES UNDER OTHER STATUTES
j. computer misuse and crimes
a) definition of computer
Section 2 of the Computer Misuse Act No 13 of 2004 defines computer as:
“an electronic, optical, electrochemical or a magnetic, or other data processing device,
or a group of such interconnected or related devices, performing logical, arithmetic, or
storage functions, and includes any data storage facility or communications facility
directly related to or operating in conjunction with such device or group of such
interconnection or related devices, or such other equipment or devices as the Minister
may, by statutory instrument prescribe, taking into consideration developments in
technology, but does not include-
(a) an automated typewriter or typesetter;
(b) a portable hand held calculator; or
(c) a similar device which is non-programmable or which does not contain any data
storage facility;
b) the elements of computer offences
Under section

c) Proscribed punishment
Smith J. C. & Hogan, B., Criminal law, Chapter 19.
k. corruption practices
The Anti Corruption Act No. 42 of 1996
i. Money Laundering
ii. Drugs

57
58