When murder is not murder

OUR criminal law resides in the Criminal Law (Codification & Reform) Act, “the Code”. Before the Code became law, our whole criminal law regime formed a branch of law that is known as common law.

When Parliament enacted the Code, it did not say that those crimes and/or principles of the common law that it excluded from the Code either deliberately or inadvertently, were by those omissions, made redundant.

I am here particularly referring to such principles as murder with “actual intent” and murder with “constructive intent”.

By its silence on these aspects, did Parliament not throw into disuse all common law offences or notions that it omitted from the Code? Let’s see!

The last portion of the preamble to the Code reads: “And whereas it is desirable to codify and, where necessary, reform the common criminal law of Zimbabwe ... (b) in order to set out in a concise and accessible form what conduct our criminal justice system forbids and punishes and what defences can be raised to criminal charges.”

Accordingly, it is submitted that as the intention of codifying our criminal law regime was to make it “concise” it would seem that those elements and principles of the common law that were omitted from the Code are no longer law and ought not be relied on anymore.

I now examine the offence of murder in detail, the aim being to test if murder with actual intent and murder with constructive intent should continue to be used.

For a person who is accused of murder to be convicted, both intention and unlawfulness must be present.

“Intention” refers to the state of mind of the accused at the time he allegedly committed the crime. Did the accused person actually intend to do so?

“Unlawfulness” refers to whether or not the killing is one allowed by law.

So if the accused, I will call him Chidhumase, is found by the trial court to have had the intention to cause a death but that when he did so, there was no unlawfulness, that is to say, the killing was the type that is allowed by law, then he cannot be convicted of murder.

Take for instance a case where Chidhumase is attacked by armed robbers. If, in an effort to defend himself, Chidhumase uses a firearm to deadly effect against the intruders, he can easily plead that he was acting in self-defence.

Clearly, although the intention to cause death was present, the killing was lawful in that Chidhumase was safeguarding his own life, which the law permits him to do.

As such, Chidhumase would not be guilty of murder.

However, while action in self-defence is legally acceptable, the law forbids using force or methods that are disproportionate to the threat posed.

Consequently, if Chidhumase, after being insulted or slapped, axes the person, his action will be classified as grossly unreasonable.

In that case, Chidhumase could be convicted of murder with “constructive intent” or culpable homicide, depending on the circumstances of case.

“Constructive intent” is a term derived from common law and is not provided for in the Code.

But in a situation where Chidhumase, while in complete control of all his faculties, just takes out his gun and opens fire, resulting in deaths, he will be guilty of murder because clearly, the intention to kill would be present and the subsequent deaths would be unlawful.

In our jurisdiction, the courts refer to such killings as murder with “actual intent”. Again, that term has no roots in the Code as an offence and I shall also deal with it.

If a court finds that there was no actual intention to cause death, it does not mean Chidhumase is not guilty. He may be convicted of murder with “constructive intent” or culpable homicide.

Culpable homicide is the negligent killing of another person but without the intention of doing so.

If Chidhumase causes death unintentionally although unlawfully, the question of murder does not arise.

So while Chidhumase may have initially been charged with murder, the matter climbs down to either murder with constructive intent or culpable homicide. Both are lesser offences than murder with actual intent.

The main feature of culpable homicide that distinguishes it from murder is the absence of intention. Intention is substituted with negligence.

For example, if Chidhumase drives a kombi full of passengers, at an excessive speed and resulting in an accident that ends in death, Chidhumase is guilty of culpable homicide because he was negligent in his conduct.

The court will assume that a reasonable driver would not drive in such a manner, the so-called objective test.

In short, culpable homicide is premised on the notion of pure negligence.

But if the accident was not caused by driver misconduct, and was caused by — for example — a sudden emergency or a mechanical fault on the vehicle, the driver is not liable.

However, if the driver is aware of the mechanical but continues to use it, and then a fatal crash occurs, he could be convicted of culpable homicide.

Murder with constructive intent resides somewhere between murder with actual intent and culpable homicide. Thin lines separate the three.

The first consists of negligence of a higher degree equating to gross negligence.

In constructive intent, Chidhumase — having realised that his action could result in death — persists with such action.

Murder with actual already been dealt with.

Culpable homicide comprises of what one might call ordinary negligence. It is that conduct which a reasonable person would not have embarked on in the first place.

When it is said that Chidhumase had the intention to cause the death, intent has it means he actually set out to kill.

This applies to an armed robbery in which the criminals end up killing someone.

The assailants cannot hide under the canopy of accidental causation and claim they are not guilty of murder.

At the close of a murder trial, if the accused is not acquitted, he/she may be found guilty of any of the following in order of their seriousness: murder with actual intent, murder with constructive intent or culpable homicide.

It is repeated that the Code only provides for the offences of murder and culpable homicide; there is no provision for murder with “actual intent” or murder with “constructive intent”.

It is accordingly submitted and suggested that once a court comes to the conclusion that there was intention, then Chidhumase ought to be found guilty of murder only, and not murder with “actual” intent.

Where it is found that there was absence of intention but only negligence of an aggravated nature, then Chidhumase should be guilty of culpable homicide and not murder with “constructive intent”.

That the negligence was aggravated should be used as a factor in aggravation on sentencing.

It is noted, however, that the terms “actual” and “constructive” owe their existence to common law.

That the legislature did not pronounce in clear terms, the demise of these principles upon the inception of the Code means that the courts are free to advert to them whenever it is deemed necessary but in my view, the challenge is that there then is no uniformity in the application of these principles owing to the fact that there are no written down guidelines.

There is no scientific formula that is applied to quantify the nature of intention or degree of negligence.

This is precisely the reason our criminal law was codified in the first place. In the result, Parliament is invited to step in and import these two cousins that hail from the common law into the Code so that there is uniformity in their application.

That is my view.

By definition, murder is the unlawful and intentional killing of another person.

Tichawana Nyahuma is a principal partner at Golden Stairs Chambers. He writes in his personal capacity. Feedback: tnyahuma@goldenstairschambers. com