SCHOOL OF LAW

L403 – Jurisprudence and legal Theory Assignment

COVER SHEET
Student Number CHOOLWE J. HAMALAMBO

Mode of study (F/T, FULL-TIME

P/T, D)

Due Date 6th OF SEPTEMBER, 2022.

Date and Time

Submitted

Case Assignment No. 1 SEMMY LASCO KAVINGA vs THE PEOPLE APPEAL NO. 15/2018
uploaded on portal

SHADED SECTION FOR LECTURER’S USE ONLY

Mark Allocated out of

100
In the case of Semmy Lasco Kavinga v The People,1 the appellant, a religious apostle was

convicted of rape, attempted rape and several counts of indecent assault. This case brings

about several jurisprudential issues and they are as follows.

Firstly, whether or not the appellant was liable to the offense of rape? Secondly, whether or

not the appellant is liable for attempted rape? Thirdly, whether he is liable for two counts of

indecent assault?

Even though the penal code prescribes what kind of punishments which ought to be given to

the offender, in this case the judge used several schools of thought when arriving at a

sentence to give the appellant.

The first school of thought which was applied in this case is the Natural theory of law. This

theory entails that human being inherently possess intrinsic values that govern their reasoning

and behavior.2 The thinking is that there is a strong connection between law and morals. The

Philosopher Plato asserted that certain morals can be discovered by natural reasons such as

common sence. Natural law is annexed on the idea that man exists in nature and has his own

nature. Henceforth, in this case the appellant failed to reason correctly with in that his actions

are in direct contravention of natural law. Him being an apostle of the church, he is expected

to uphold a certain level of character and morality. An apostle is not expected to have

unwarranted sexual intercourse or indecently assault members of his congregation.

The second theory of law used is the positivist theory of law, which entails that law is law

regardless of whether or not it is just or unjust. In addition, its of the argument that there is no

connection between law and morality. In this case the law provides in the form of the Penal

Code Chapter XV on Offences Against Morality, it forbids rape, 3 attempted rape4 as well as

1 (2018) ZMCA 51
2 www.investopedia.com/terms/n/naturallawexplained accessed on 4th of September, 2022.
3 Section 132
4 Section 134
indecent assault5. The appellants actions being in direct contravention of the provisions of the

law and in light of the corroboration from the other witnesses and victims which was given

rendered him liable for imprisonment.

Another theory which was implemented is the realist Theory of law. According to this theory,

judges consider not only abstract rules but also social interests as well as public policy when

deciding cases, and according to justice Holmes who coined the bad man theory, the life of

law is logic as well as experience. Furthermore, judges are given the discretion to make there

own sence of what is right. In this case the judges used logic in arriving at the judgment in

that the appellant was the only person who knew about Winfridah leaving the door open for

an unknown person to enter and he had the opportunity to do so given that he knew all the

logistics of where everyone would be. Putting into perspective all the other testimonies of

similar fact evidence he was the prime suspect and only one with the opportunity to do so.

Last but not least, the Sociological theory of law was instrumental in influencing the judges

decisions. This theory advocates that the law and society are related to each other. This

theory is based on the idea of balancing conflicting interests. These interests are interests of

citizens and the state. In this case it was a matter of striking a balance between the interests

of the appellants and victims who are represented buy the state. The interests of the victims

which in this case are safety and maintenance of their sexual dignity and purity were violated

by the appellant, thus the judges have to make a decision which will be seen by society at

large as being just.

All in all it can be said that jurisprudence plays a major role when judges make decisions.

Substantive law has its part to play which is just as imperative as jurisprudence.

5 Section 137
 BIBLIOGRAPHY

The Penal Code Chapter 87 of the Laws of Zambia.

Semmy Lasco Kavinga v The People (2018) ZMCA 51

www.investopedia.com/terms/n/naturallawexplained accessed on 4th of September, 2022.