via Amendments to the Criminal Law Code – The Zimbabwean 30 July 2015
The GLA Bill proposes wide-ranging amendments to the Code, many of them minor, some of them far-reaching, most of them technically complex. In this Bill Watch we shall explain the more important of these amendments.
In fact the amendments should have been made in a separate Bill rather than added to an omnibus Bill. This would have enabled parliamentarians to give them the careful consideration they deserve. In any event the long title to the GLA Bill allows only amendments to align laws with the Constitution and the most of the amendments have nothing to do with the Constitution. It is not too late for parliamentarians to request the Minister to remove them from the GLA Bill and present them as a separate Bill.
Sentence for murder
The Bill will amend section 47 of the Code to reintroduce the death penalty for murder. For the most part the new provisions are in accordance with section 48 of the Constitution, which allows a law to prescribe the death penalty for murder committed in aggravating circumstances. There are two difficulties with the new provisions, however:
1. The Bill purports to lay down circumstances which a court must regard as aggravating and so justifying the imposition of the death penalty. The Constitution suggests that courts should decide for themselves what amounts to murder committed in aggravating circumstances, and Parliament should not limit the courts’ discretion on this issue. Furthermore, some of the circumstances the Bill regards as aggravating are not necessarily so. For example it will be an aggravating circumstance if the murderer entered a dwelling illegally in order to kill his victim: so if the victim runs to her hut and the murderer follows her in and kills her, he will commit murder in aggravating circumstances, but if he catches and kills her before she reaches the hut the circumstances will not be aggravating.
2. Even though a court will have a discretion not to impose the death sentence on an offender convicted of murder with aggravating circumstances, under the proposed amendments the court will be obliged to sentence the offender to a minimum of 20 years’ imprisonment. This is almost certainly unconstitutional because the Bill contains no provision allowing the court to impose a lesser sentence in special circumstances.
It should be noted that the Bill is reintroducing the death penalty which has effectively been abolished by the new Constitution [and there have been several court judgements confirming that it is now abolished]. The GLA Bill is not aligning the law with the constitution: it is introducing the death penalty.
Sexual intercourse with young persons
The Bill proposes to insert a provision in the Code to the effect that young persons over 12 but under 16 years of age who engage in sexual intercourse with consent must not be prosecuted for the crime of sexual intercourse with a young person under section 70 of the Code unless a probation officer has recommended prosecution. It should be noted that this provision will not prevent young people being prosecuted altogether, but will simply require a probation officer to recommend it.
The amendment is to be welcomed, but similar amendments should be made to other sections of the Code to stop very young persons being inappropriately prosecuted. For example, if a boy of 12 has intercourse with an 11-year-old girl he must be charged with rape [because she is under the age at which she can legally consent] and there is no provision for a probation officer’s report in such a case.
This example illustrates the point that the law regarding sexual crimes must be looked at as a whole, and amendments to one crime often need to be matched with further amendments elsewhere. The whole law on this topic should be reconsidered to ensure that it meets changing attitudes of society while at the same time, and above all, protects children from abuse.
Attempting to Commit a Crime
Section 189 of the Code states that a person is guilty of attempting to commit a crime if he or she does anything “that has reached at least the commencement of the execution of the intended crime”. It is sometimes difficult to determine when conduct has reached that stage, and the Bill proposes to reword section 189 so that an attempt will be constituted by anything done “in preparation for or in furtherance of the commission of the crime”. Acts of preparation will therefore be regarded as attempts. The new provision will restore the original Roman-Dutch common law on attempt; it will clarify the law and is to be welcomed.
Participation in Crimes
Under our common law, people who participated or were involved in the commission of a crime were classified as follows:
• The perpetrator, who actually commits the crime. In the case of murder, he or she is the one who actually killed the deceased person, whether by hitting the deceased with an axe, pulling the trigger of a gun, or whatever. The perpetrator was sometimes called “the principal offender” or “the principal”. Where there were two or more perpetrators they were called “co-perpetrators”.
• An accomplice, who furthers the commission of the crime, whether by giving the perpetrator advice or supplying him with information or – to use the example of murder again – by holding down the victim while the perpetrator hits him with an axe.
• An accessory after the fact, who helps the perpetrator and any accomplice to escape liability, for example by hiding stolen property or a murder weapon.
The Code in its present form keeps this classification, and goes into elaborate detail of how the different categories of participants are liable for a crime and the punishment to be imposed on them.
New type of participant: principals
The GLA Bill proposes to add another category of participant, the “principal”. This will be a person who has authority over the actual perpetrator and who authorises the perpetrator to commit the crime. At present such persons are regarded as accomplices, and it is not clear why it was considered necessary to take them out of that category. Moreover, the name “principal” may cause confusion because, as pointed out above, actual perpetrators are often referred to as “principal offenders”. A further drawback to the new category is that it is too narrow: it covers only people who authorise the actual perpetrator to commit the crime and does not include those who employ the perpetrator to do so.
The amendment also adds a provision to the effect that a principal will be liable to the same punishment as the actual perpetrator of the crime unless he can satisfy the court that there are special circumstances justifying a different sentence. This is objectionable. It assumes that courts are not capable of working out for themselves what sentences are appropriate to be imposed on principals.
Under the Code at present, co-perpetrators of a crime are persons who intend to commit the crime and are present when the actual perpetrator commits it; they are liable for the crime as if they themselves had committed it. The effect of the GLA Bill will be to extend the definition of co-perpetrator to cover anyone who is accused of committing a crime in association with another person and who is proved to have had the necessary intention to commit the crime. That is the effect of the proposed amendment, but it surely cannot be its real intention, because it means that to convict someone as a co-perpetrator all the State need do is “accuse” him of committing a crime and prove that he intended to commit it: the State need not prove that he did anything to give effect to his intention. As we have said, that cannot be what was meant and the provision will need to be reworded to clarify its real meaning – whatever that may be.
Undue complexity of law on participation
The current provisions of the Code on participation in crimes are complex, lengthy [there are 10 sections extending over four pages] and difficult to understand. The amendments will make them even longer and more difficult.
Before legal writers developed the position outlined at the beginning of this article, the common law was much simpler: anyone who assisted a perpetrator to commit a crime was regarded as a socius criminis [a partner in crime] and could be punished as if he were a perpetrator, according to the extent of his participation. Also, if two or more people associated together in a criminal enterprise, each was responsible for the acts of the others which fell within their common purpose. The law was rough and ready, but it worked. Perhaps the Code should be amended to revert to this position.
Withdrawal from crime by accomplices, principals, etc.
The GLA Bill sets out to alter the provision of the Code which states that accomplices who withdraw from a crime before it is committed will not be liable if they try to frustrate it or give ample warning of it to the police. Once again, the proposed amendment is not satisfactory. It will extend the provision to cover withdrawal by co-perpetrators and principals as well as accomplices, which is fair enough; but it will allow them to escape liability only if they succeed in preventing the crime from being committed. This is illogical: if an accomplice prevents the commission of a crime he cannot be charged with the crime because no crime has been committed.
Avoidance of double punishment
The GLA Bill will insert a new section in the Code explaining how courts are to impose sentence on people who are charged with two or more crimes, when aggravating features that should be taken into account in the sentence on one of the crimes are constituent elements of another of the crimes. For example, when a person is charged with unlawful entry into premises [housebreaking] and theft, it is an aggravating feature of the crime of unlawful entry that the accused stole property, but that aggravating feature constitutes the separate crime of theft.
The new section is elaborate and difficult to understand – so difficult, indeed, that it will probably cause more confusion than exists at present. Furthermore the section does not deal with the situation where an accused person is convicted of only one crime in the course of which he commits another crime with which he is not charged. For example, if a person enters premises unlawfully and steals property, but is charged with and convicted of only unlawful entry into premises. Can the court, in sentencing him, regard the theft as an aggravating feature justifying a heavier sentence even though he has not been charged with the theft? The new section gives no guidance on this.
Amendments that should have been made by the GLA Bill
There are several provisions of the Code that need to be amended, but which the GLA Bill will not touch. For example:
• Section 31, which criminalises publishing false statements prejudicial to the State, has been declared unconstitutional in several respects. The section should be amended or repealed altogether.
• Section 33, which creates the crime of insulting the President. The Constitutional Court has declared this section to be unconstitutional, and it should be repealed.
• Sections 70, 71 and 72, which deal with sexual crimes against young people. The whole question of the age of consent needs to be re-examined.
• Part VIII, which deals with computer-related crimes, needs to be up-dated in the light of modern technology.
• Section 277 which makes directors and employees of a company liable for any crimes committed by the company unless they prove they are innocent. This violates the Constitutional presumption of innocence.
It will be apparent from what has been said in this Bill Watch that the amendments which the GLA Bill proposes to make to the Code are patchy, inadequate and often unsatisfactory. They should be deleted from the Bill pending a complete revision of the Code by experts.