1] Introduction to Criminal Law: Learners’ Module

INTRODUCTION TO Criminal Law in Zambia:

Learners’ ModuLe

© 2013 Adv. Justin Sipho Chitengi1 DAAD Scholar; PhD Candidate- Law & Policy(UNILUS); LLM(UWC/HU); LLB Merit (UNZA); BSc Forestry(CBU); PGC

Public Policy(AU); CPD Conveyancing(LAZ); PGC LPQE(ZIALE); CETP Entrepreneurship(Northlink);

AHCZ(High/Supreme Court)

1 Formerly the Founding Assistant Dean of the Law School- University of Lusaka, Adv. Chitengi is a seasoned teacher of

law and renowned researcher as well as publisher. He has lectured both in public and private universities in Zambia and

abroad including the University of Zambia and the Copperbelt University among others. He also served as Postgraduate

Researcher on Financial/Economic Crimes Law at the German-South African Centre of Excellence, a collaboration between

Humboldt Universität zu Berlin & University of the Western Cape. Chitengi was appointed by the then Republican Vice

President & Minister of Justice in 2011 to serve as a Council Member of the Zambia Institute for Advanced Legal Education

(ZIALE) - the only Bar School in Zambia. He is currently in the employ of John Snow Inc. Ltd (SHAReII Project), a

USAID-funded project where he practices law as Legal and Policy Manager. Adv. Chitengi is a recipient of many

prestigious scholarships and fellowships both locally and internationally in recognition of his contribution to the legal

fraternity.

2] Introduction to Criminal Law: Learners’ Module

Course Introduction

This course is the first in the series of two parts that deal with the branch of prosecuting

alleged crimes committed and other issues incidental thereto in a particular given

society.

Module Objectives

This module aims at laying a foundation for new learners who are being introduced to the

study of key concepts in criminal law for better understanding of the future lectures in this

course.

Expected Outcomes

On completion of studying this module you should be able to:

i. Demonstrate clear understanding and definition of key concepts and principles

governing criminal liability;

ii. Explain the general elements of a crime and how to prove the elements;

iii. Distinguish between actual crimes and inchoate offences;

iv. Identify possible defences to various crimes; and

v. Critically discuss the principles of sentencing.

Duration

You are expected to complete studying this module in one academic semester averaging 5

months.

3] Introduction to Criminal Law: Learners’ Module

Study Tips

i. As you go through this module you will come across margin icons (gavels and scales

of justice) that serve as signposts. These icons are intended to assist you navigate

through the module;

ii. There are several activities interspaced in the learning activities that will allow you to

reflect on the topics in each unit;

iii. At the end of each unit you will find a number of revision questions to self-assess

your level of understanding a particular unit before you proceed to the next unit;

iv. Various case studies are given under each unit for you to familiarise yourself with

how lawyers identify legal issues from a given set of facts and apply the law to the

identified legal issues as they help the courts to pass judgements;

v. Few past examination questions have been reproduced at the end of the module for

you to assess your preparedness for examination in this course; and

vi. A list of prescribed and recommended reading materials has been attached to

supplement your reading. Make efforts to secure for yourself at least a copy of the

prescribed texts

Study Skills

You are responsible for your study- time management as the institution will only manage

your study programme during the residential school period according to the school calendar.

Therefore, you should balance your use of time, learn to cope with academic pressure in

4] Introduction to Criminal Law: Learners’ Module

strictly meeting the deadlines for submission of assignments and familiarise yourself with

rules of writing legal essays.

Do You Need Help?

If you need help, extra information or have any queries concerning this module, kindly get

in touch with the author on +260 965 444 353 or email: cjnsipho@gmail.com

Assessment

Continuous Assessment

o 1st Assignment: 25%

o 2nd Assignment: 25%

Final Examination: 50%

Prescribed Readings

Statutes

i. Constitution Act, Cap 1 of the Laws of Zambia.

ii. Criminal Procedure Code Act, Cap 88 of the Laws of Zambia.

iii. Penal Code Act, Cap 87 of the Laws of Zambia.

Text Books

i. Hatchard, J. and Ndulo, M., A Case Book on Criminal Law (2008), Institute for

Public Policy Research, Lusaka.

ii. Hatchard, J. and Ndulo, M., Readings in Criminal Law and Criminology in

Zambia (1994) Multimedia Publications, Lusaka.

5] Introduction to Criminal Law: Learners’ Module

i. Kulusika, S.E., Text, Cases and Materials on Criminal Law in Zambia (2006)

UNZA Press.

Recommended Readings

i. Card, R., Cross & Jones: Criminal Law (2008)18th ed, Oxford University Press,

London.

ii. Williams, G., Textbook of Criminal Law (1983), Steven & Sons, London.

6] Introduction to Criminal Law: Learners’ Module

Unit 1: Principles of Criminal Liability 1.0 Unit Overview

This unit sets the introduction to the study of criminal law. It gives a legal definition of

criminal law as well as discusses the sources of criminal law in Zambia. The unit also

deals with the classification of offences into misdemeanours and felonies. It equally

introduces the seven core principles of criminal liability which shall be dealt with in

details in their respective units.

Topic 1.1: Principles of Criminal Liability

The seven principles of criminal liability are:

i. Legality. This principle stipulates that there must be a law for there to be a crime.

It is premised on the Latin maxim Nullum crimen sine lege which translates "no

crime without law." Legality is the moral principle in criminal law and

international criminal law that a person cannot or should not face criminal

liability if there was no law criminalising their conduct/act at the time they

committed the act. Simply put, offensive and harmful behaviour is not illegal

unless it has been prohibited by law before it was committed.2 The principle also

extends to the non-retroactivity stipulation of law (nullum crimen sine lege

2 M. B. Gibson, “Seven Principles of Criminal Law”, retrieved from http://quizlet.com/2828651/seven-principles-of-

criminal-law-flash-cards/ on 8 April 2013, 3: 51PM.

7] Introduction to Criminal Law: Learners’ Module

praevia) which prohibits the law operating in retrospect. That is to say, if the act

was not criminalised at the time of commission, it cannot become a crime just

because there is now a new law criminalising such acts. The importance of this

principle is that it ensures certainty and predictability of what would be the

consequences of one’s conduct- if you do no wrong, no guilt will be imputed on

you.

ii. Actus reus. This principle of criminal law deals with human conduct, and

stipulates that for a crime to occur there must be a blameworthy act of either

commission or omission by the accused.

iii. Causation. This principle of criminal law dictates that the blameworthy conduct

of the defendant must cause harm. Therefore, for a crime to have been committed

there should be a casual relation between the blameworthy conduct the harm

suffered.

iv. Harm. The principle stresses that for a crime to occur there should harm caused

by an act to some other/thing. That is to say, for there to be a crime, an act must

cause harm to some legally protected value.

Activity 1.1

Critically think about whether or not there would be a crime if one caused harm only to themselves.

8] Introduction to Criminal Law: Learners’ Module

v. Mens rea. Mens rea simply means "guilty mind." This principle requires that for a

person to be criminally liable they should have a guilty or ill-intent to commit the

blameworthy act.

vi. Concurrence/Coincidence of Actus Reus and Mens Rea. This legal principle of

criminal law requires that for there to be a crime there must be concurrence

between the blameworthy conduct and the guilty state of mind. That is to say,

both the intent and the act must be present at the same time. A crime is

committed only when actus reus and mens rea concur in time. For instance, there

is no burglary if a person breaks into shelter escaping from a storm and only then

steals. Only theft, and not burglary is committed because at the time of entry the

person had no intent to ‘break in and steal.’3

3 http://www.wcl.american.edu/sba/outline_databank/outlines/CriminalLaw_Robbins_Spring2008_2.pdf retrieved on 9

April 2013 at 2:44 PM

9] Introduction to Criminal Law: Learners’ Module

Case Study 1.1: Concurrence/Coincidence- Actus Reus and Mens Rea

Fagan v MPC (1969) 1 QBC 439

Brief Facts:

Fagan accidentally drove his car onto a policeman’s foot who had ordered him to pull-over. When the officer

screamed in pain, Fagan vindictively refused to remove it immediately because an altercation had ensued between

the two.

Legal Issues:

The contentious legal issues arose from the question whether Fagan would be liable for assault considering that he

had no ill-intent (mens rea) at the time he committed the actus reus of accidentally driving onto the officer’s foot.

Holding:

It was held that actus reus of assault was a continuing act which, initially started without mens rea, was still in

progress when mens rea was subsequently formed and so there was coincidence of mens rea and actus reus at

some point sufficient to constitute criminal liability. Consequently, Fagan was convicted.

vii. Nulla poena sine lege. This maxim forms the legal principle discouraging arbitrary

punishment with the meaning being: “no penalty without a law.” Once criminal

liability has been proved, it must be established that there is a provision in the law

calling for punishment of those found guilty.

Topic 1.2: Definition of Criminal Law

Criminal law, also known as penal law, involves prosecution for an act that has been

classified as a crime. As rightly defined by Farlex, it is “[a] body of rules and statutes

that defines conduct prohibited by the government because it threatens and harms

public safety and welfare and that establishes punishment to be imposed for the

commission of such acts.”4

4 Free Law Dictionary, retrieved 9 April 2013 at 1:58PM from http://legal-dictionary.thefreedictionary.com/Criminal+Law

10] Introduction to Criminal Law: Learners’ Module

Strictly speaking, the term criminal law refers to substantive criminal laws. Substantive

criminal laws are those laws that define crimes, set principles of criminal liability,

prescribe general and specific elements of respective crimes, stipulate possible defences

and establish punishments. In contrast, criminal procedure describes the adjudicative

process through which the criminal laws are enforced. For instance, the law prohibiting

arson is substantive criminal law whereas the laws governing the process of enforcing

this criminal investigations and evidence gathering up to prosecution form part of

criminal procedure law.

1.2.1 : Classification of Offences

Crimes are basically classified as either felonies or misdemeanors depending on their

respective nature and the maximum punishment that can be imposed. Felonies are

serious crimes in that they involve serious blameworthy conduct that is usually

punishable by a long term imprisonment of more than one year with hard labour or

death penalty. On the other hand, misdemeanors are minor offences by their nature

thus carry a relatively lighter and short punishment- usually simple imprisonment of

less than a year. Certain misconducts like traffic and parking infractions are considered

to be lesser offences often referred to as contravening and/or violations of criminal law.5

5 Farlex, op cit