Bande

CONTENTS
PREFACE
ACKNOWLEDGEMENTS
TABLE OF CASES
TABLE OF STATUTES
PART ONE INTRODUCTORY TOPICS

CHAPTER 1 THE NATURE OF CRIMINAL LAW
CHAPTER 2 HISTORICAL DEVELOPMENT OF MALAWIAN
CRIMINAL LAW AND CRIMINAL JUSTICE POLICY
CHAPTER 3 THE DEFINITION OF A CRIME AND CLASSIFICATION
OF OFFENCES
CHAPTER 4 THE AIM AND FUNCTION OF CRIMINAL LAW
CHAPTER 5 THE IMPACT OF THE CONSTITUTION ON CRIMINAL
LAW
CHAPTER 6 INTERPRETING CRIMINAL STATUTES
PART TWO PRINCIPLES OF CRIMINAL LIABILITY

CHAPTER 6 THE REQUIREMENT OF A PROHIBITED CONDUCT
CHAPTER 7 THE MENTAL ELEMENT OF A CRIME MENS REUS
CHAPTER 8 PARTICIPATION IN A CRIME
CHAPTER 9 DEFENCES
PART THREE SPECIFIC CRIMES

CHAPTER 10 OFFENCES AGAINST PUBLIC ORDER
CHAPTER 11 OFFENCES AGAINST THE ADMINISTRATION OF
LAWFUL AUTHORITY
CHAPTER 12 OFFENCES AGAINST MORALITY
CHAPTER 13 OFFENCES AGAINST THE PERSON
CHAPTER 14 OFFENCES AGAINST PROPERTY
CHAPTER 15 OFFENCES UNDER THE ROAD TRAFFIC ACT
CHAPTER 16 OFFENCES UNDER THE CORRUPT PRACTICES ACT
CHAPTER 17 MONEY LAUNDERING AND ANTI-TERRORISM
1
OFFENCES
CHAPTER 18 OFFENCES UNDER THE WITCHCRAFT ACT
CHAPTER 19 INCHOATE OFFENCES
2
PREFACE
This work is an exposition of the substantive rules and principles of Malawian
criminal law. But apart from discussing the rules that make up the bulk of Malawian
criminal law and as contained in different penal statutes, one of the chief aims of this
work is the identification and discussion of issues of principle and policy involved in
the shaping of criminal law by the legislature, the courts, the law reforms bodies,
academic commentators and different interest groups that have sprung up in Malawi
following the democratization of Malawi‘s political and constitutional systems in the
early years of the 90s. It is hopes that this modest work will revive interest in criminal
law scholarship in Malawi.
This book is intended to be used by students of Malawian criminal law, legal

practitioners, magistrates, human rights activist and members of the general public in
general. For that purpose, it was not easy to decide what exactly should be contained
in it. By the end of the day, it will be realized that the book contains more citations and
discussion of statutes and case law, in the hope that it will be suitable for use by
persons who want to learn Malawian criminal law but don‘t have access to all the
statutes and case law on the same. (It is common knowledge that accessibility to legal
materials in Malawi has never been easy to date.)
In addition, this book intends to provide a comprehensive account of the

development of Malawian criminal law from the colonial period to date. This is
important at this point in time in the history of Malawian criminal law when the
Malawi Law Commission is in the process of conducting a comprehensive review of
Malawi‘s penal statutes.

The first part of the book identifies and discusses the principles and policies
which appear to play a significant part, albeit not always openly avowed in the
reasoning of the courts, in the development of Malawian criminal law and which are
likely to guide the future development of criminal law in Malawi. In this part, the book
discusses matters pertaining to the nature and purpose of criminal law in Malawi, the
historical development of criminal law in Malawi and how political developments
have impacted on criminal law and criminal justice policies, the impact of the 1994
Constitution on Malawian criminal law and a call for the adoption of a rights-based
approach to criminal law in Malawi and, lastly, the definition of crime and
3
classification of crimes in Malawi. At the end, questions are raised about each of these
issues.
Once the historical context, functions of criminal law and policy issues have
been outlined in Part , the foundations of criminal liability are laid out in Part 2. This
Part contain a comprehensive examination of all the rules and principles on criminal
liability and criminal responsibility ranging from the prohibited conduct, the mental
element of crimes, participation in a crime and, lastly, defenses (justifications, excuses
and exemptions). The last part is devoted to a discussion of major offences in Malawi.
The selection of the offences to be discussed in this part has been influenced by two
things: firstly, the frequency of the occurrence of the offences and, secondly, the
relevance of an offence to contemporary social and economic processes. Selected
offences are: Chapter 10 deals with offences against public order, Chapter 11 with
offences against morality, Chapter 12 with offences against the person, Chapter 13
with offences against property, Chapter 14 with malicious injury to property, Chapter
15 with offences under the Road Traffic Act, Chapter 16 with corruption and related
offences, Chapter 17 with offences under the Witchcraft Act, Chapter 18 with other
regulatory offences, Chapter 19 will discuss the key issues in the Prevention of
Domestic Violence Act, and Chapter 20 with inchoate offences.
In the course of preparing this book I incurred many debts of gratitude to friends
and colleagues. I am particularly grateful to those who provided me with cases from
the High Court and Supreme Court of Appeal, those who read and commented on
drafts…At Chancellor College Publication,…who had tried his best to smooth the path
for the publication of this book.
I hope that statements about the law were accurate on …; there is always a
possibility that some statements of the law might be overtaken by subsequent
developments.
Lewis Chezan Bande

INTRODUCTION
This book deals with Malawian criminal law. Providing a comprehensive

discussion of all the rules and principles that make up our criminal law should be a
4
simple exercise. It would require a discussion of the statutes and decided cases. But
such an exercise would be of little help to students of criminal law, different officers
charged with the enforcement of penal statutes and members of the general public who
are in dire need for a deeper understanding of the principles. There is a need for a
deeper evaluation of the principles against the backdrop of the 1994 Constitution 1,
fundamental principles and theories on crime and punishment currently followed in
different parts of the world and, most importantly, the social, economic and political
needs of our country. This is more important today for Malawi as the country is
undergoing a comprehensive review of our penal statutes. This book will therefore
seek to contribute to the numerous debates on which direction our criminal law should
take.
For that purpose, the objectives of this book can be stated as the following: (a) to
outline the rules and principles that make up Malawian criminal law (b) to outline the
sociological and political background to the rules and principles stated in (a) and, (c)
to initiate debate on our criminal law by highlighting some of the contentious issues
and propose the direction for reform.
But in order to achieve all this in a sensible manner, there is a need to establish a
framework. This will be done by examining central thematic issues. First, there is a
need to locate criminal law within the broader context of the Malawian legal system
and, most importantly, discuss the relationship between criminal law in general and
our constitutional law. Secondly, there is a need for a discussion of the history of
Malawian criminal law. Thirdly, we will answer the fundamental question: what
conduct ought to be criminalized. Fourthly, we will answer the question: why should
those convicted of a crime should be punished. After this, we will discuss general
principles of criminal liability in Malawi. Lastly, we will discuss rules and principles
on specific offences.
PART ONE – INTRODUCTORY TOPICS
CHAPTER 1 THE NATURE OF CRIMINAL LAW

CHAPTER 2 HISTORICAL DEVELOPMENT OF MALAWIAN CRIMINAL LAW
AND CRIMINAL JUSTICE POLICY
CHAPTER 3 THE DEFINITION OF A CRIME AND CLASSIFICATION OF
1 Act No. 20 of 1994
5
OFFENCES
CHAPTER 4 THE AIM AND FUNCTION OF CRIMINAL LAW
CHAPTER 5 THE IMPACT OF THE 1995 CONSTITUTION ON CRIMINAL LAW
CHAPTER 6 INTERPRETING CRIMINAL STATUTES
CHAPTER ONE
THE NATURE OF CRIMINAL LAW
1.0. INTRODUCTION
6
Almost every legal system in the world has a place for criminal law. It is hard
to imagine a legal system that has no idea of criminal law and criminal justice. As will
be seen below, pre-colonial communities that thrived in the territories now called
Malawi had criminal laws and criminal justice systems that operated side by side what
can be called civil laws and civil justice system. It is, therefore, in the wrong to
consider criminal law as a gift that African communities received from their erstwhile
colonial masters.
But saying that every society has an idea of criminal law is one thing and what
actually criminal law means to every society is another. Even in modern societies, the
nature of criminal law is a question with differing and divergent answers to different
societies. It is therefore not an idle exercise to explore at the very beginning of a book
on criminal law the nature of criminal law and criminal liability. In that light, this
Chapter will explore and seek to provide answers to the following questions: what
does criminal law do? What distinguishes criminal law from civil law? Why should
Malawi have criminal law?
These questions are of increasing importance to Malawi today for a number of

reasons: firstly, Malawi is in the process of reviewing its criminal statutes. During that
exercise, it is essential that those involved must consider what criminal law means as a
tool for social engineering. It is only when the true nature of criminal law has been
understood that the appropriateness of using it to deal with social and economic
problems besetting the country can be considered. Secondly, and in a way related to
the first point above, criminal law is being deployed to deal with social and economic
problems of HIV/Aids and harmful cultural practices. But despite these recent
developments, up to date, the place of criminal law in the Malawian legal system has
been a matter of little controversy.
1.1. CRIMINAL LAW AS A BRANCH OF PUBLIC LAW

Law is traditionally subdivided into two main categories, namely public law
and private law. If considered from the perspective of the nature of relationships
regulated by these two major categories, public law deals with the relationship
between the state as an authoritative power and its citizens as subjects of state power.
The common denominator underlying relationships regulated by public law is the
presence of the state authority as such. This excludes those relationships between the
state and its citizens but where the state does not exercise its public authority. A
7
classic example of cases where the State relates with the citizen outside the purview of
public law is in the area of contract law. In countless times every day, the state through
its different agencies, enters the market contracting for services and goods. In all these
transactions, the state acts not as a public power but, rather, as any other individual
who enters the market. The most important consequence of the distinction between
cases where the state relates with its citizens whilst exercising its public law powers
and those where it does not, is that in the former its actions are amenable to judicial
review whilst in the latter they are not. Further, public law also regulates the
relationship between different branches of the state (i.e., ministries, departments,
authorities, offices, statutory corporations etc) by prescribing their respective powers,
duties and functions and how they should relate with each other. Three most notable
branches of public law are constitutional law, administrative law and criminal law.
Conversely, private law regulates the relationships between individuals as

subjects of the legal order. As noted above, the State may be a part to relationships
regulated by private law and this happens when it enter into relationships with private
individuals and cannot be said to be exercising its public powers. Subdivisions of
private law include law of contract, family law, law of trust, commercial law etc.
Criminal law belongs to the public law divide in that it involves the State…
1.2. CRIMINAL LAW AS SUBSTANTIVE LAW

Law may also be subdivided in other ways, for instance, by distinguishing
between procedural law and substantive law. The first is made up of rules and
principles setting out the procedure to be followed when enforcing rights and duties in
a court of law. On the other hand, substantive law sets out rights and duties of parties
to different relationships. In this categorization, criminal law belongs to the
substantive law category in the sense that it sets out the rights and duties of different
parties and prescribes principles determinative of when criminal obligations may be
enforced and which rights are to be enforced at the pain of penal sanctions. Its
procedural counterpart would be criminal procedure and evidence.
Having said this, it is clear that the discussion above does not tell us what
criminal law is really all about. One therefore has to go further in order to unravel the
true nature of criminal law in the Malawian society. And such a probe will have to be
launched by noting that linguistically, criminal law is an amalgam of two terms
―criminal‖ and ―law.‖
8
1.3. THE NATURE FOR CRIMINAL LAW: A CONSTITUTIONAL
PERSPECTIVE
In 1994 Malawi adopted a new Constitution 1 that established in Malawi a

constitutional and legal order based on radically different principles and values from
the one that prevailed before it: principles that include constitutional supremacy 2,
people-centeredness3, trust4, openness, accountability and transparency, democracy5,
1
The 1994 Constitution of Malawi was enacted by Parliament on 16 May 1994. It provisionally
came into force on 18 May 1994. In accordance with the terms of Chapter XXIII there would be a
one year period during which it would be reviewed by the Constitution Committee, and amended
or replaced in accordance with its terms. There have been a number of amendments to the
Constitution and, at the time of writing this book, there is in process a constitutional review
exercise being undertaken with the guidance of the Malawi Law Commission.
2 Sections 5 and of the Constitution provides as follows:
Any act of Government or any law that is inconsistent with the provisions of this
Constitution shall, to the extent of such inconsistency, be invalid.
3 Section 12 (i) of the Constitution provides as follows:
All legal and political authority of the State derives from the people of Malawi and
shall be exercised in accordance with this Constitution solely to serve and protect their
interests.
4 Section 12 (ii) of the Constitution read:
All persons responsible for the exercise of powers of State do so on trust and shall only
exercise such power to the extent of their lawful authority and in accordance with their
responsibilities to the people of Malawi.
5 Section 12 (iii) of the Constitution reads:
The authority to exercise power of State is conditional upon the sustained trust of the
people of Malawi and that trust can only be maintained through open, accountable and
transparent Government and informed democratic choice.
9
inherent dignity and worth of each human being, respect of human rights,6 rule of law7
and equality8. There is no doubt that some of these principles signify a radical
reconfiguration of Malawi‘s legal system, procedures and substantive rules. In the area
of criminal law, these principles call for a radical reexamination of much of the rules,
principles and values that have been taken for granted for a period extending for
almost a hundred years.
Considering the importance of the Constitution to Malawi‘s legal system, one is

justified to ask whether the Constitution says something about the nature of criminal
law. At the moment, there is no constitutional provision that directly talks about the
nature of criminal law or regulates the State‘s criminalization powers. The
Constitution as the supreme law of the land is a proper statute that must contain a
substantive criterion for criminality. Further, since by its very nature the Constitution
of Malawi tries to strike a balance between individual interests and those of the State
as a whole by, among other things, providing for fundamental human rights and
freedoms of individual citizens bequeathing different powers and authorities to
different branches of the government, one would reasonably expect the Constitution to
have a provision stating when criminal sanctions ought to be deployed as a form of
dealing with a particular conduct.
The Canadian constitution does so by including the following criteria for the
criminalization of conduct:
6 Section 12 (iv) of the Constitution reads:
The inherent dignity and worth of each human being requires that the State and all
persons shall recognize and protect fundamental human rights and afford the fullest
protection to the rights and views of all individuals, groups and minorities whether or not
they are entitled to vote.
7 Section 12 (vi) of the Constitution provides as follows:
All institutions and persons shall observe and uphold the Constitution and the rule of
law and no institution or person shall stand above the law.
8 Section 12 (v) of the Constitution provides as follows:
As all persons have equal status before the law, the only justifiable limitations to lawful
rights are those necessary to ensure peaceful human interaction in an open and democratic
society.
10
(a) No act should be criminally proscribed unless its incidence, actual or
potential, is substantially damaging to society;
(b) No act should be criminally prohibited where its incidence may be

adequately controlled by forces other than the criminal process…
(c) No law should give rise to social or personal damage greater than it was
designed to prevent.‖
Underlying a formulation of principle such as this is a deeper and principled

understanding not only of criminal law but law in general in the Canadian society.
There is a clear message that considering the coercive nature of criminal sanctions and
their effects of the rights of the citizen and the uniquely high social, human and
financial costs for invoking the criminal sanctions.
All in all, what I am proposing is that there is a need for a principled approach to
matters of criminal law in Malawi and a call legislators not to be obsessed with
criminalizing every conduct that is deemed anti-social when other forces would be
deployed with equal or more success than if criminal law were used. Alternative and
non-punitive sanctions may well exist and ought preferably to be applied. Criminal
law should therefore be reserved for what really matters.
This proposal is linked to the quest for a constitutionally endorsed purpose of

criminal law in Malawi. This question is important today as Malawi is experiencing a
surge of legislation controlling different social and economic activities of the citizens.
Malawi is experiencing a surge in legislation in the area of health (for instance in the
wake of HIV/AIDS,) environment, the protection of minority and historically
marginalized groups, in the economic activity, domestic violence, and many others. At
the same time, there are serious questions being raised pertaining to past
criminalization particular in the area of the belief in witchcraft, legislation that
protected national figures or personnel. In light of all these movements, Malawi needs
to consider the wider question of whether there should be substantive criteria for
determining when and what conduct ought to be proscribed by criminal law and what
conduct, already criminalized, and ought to be decriminalized. This is important
because of the very nature of criminal law. Criminal law and criminal sanctions
represent the highest form of condemnation and employs authorizes the state to apply
coercive measures (including death) against its own citizens. This is besides the stigma
attendant to a criminal conviction in general. Seen in these terms the question whether
11
a particular conduct ought to be proscribed as a crime becomes a matter of balancing
the interests of individual citizens and those of the society as a whole, something that
the Constitution should have provided for.
CHAPTER TWO
HISTORICAL DEVELOPMENT OF MALAWIAN CRIMINAL LAW
2.0. INTRODUCTION
Generally speaking, legal and political histories of Malawi are intractably linked.
Both histories follow the same traditional demarcations of pre-colonial, colonial, post-
colonial and post-democratic periods. The law in Malawi has developed in leaps and
bounds in correspondence to the dictates of politics and politicians. This is more
marked in the areas of constitutional law, criminal law and land law. Any discussion
of the development of any of the three branches of the law will therefore follow the
same pattern. For the three branches of law mentioned above, the study of colonial and
post-colonial developments is important as it fosters an adequate understanding of
contemporary laws and how the law is to develop.
In this Chapter, I seek to highlight the landmark changes that have taken place in
Malawian criminal law from the formation of the colonial state, during independence
and after the adoption of the 1994 Constitution. The inquiry is pertinent since the way
colonial criminal justice system was conceived and organized has contributed to shape
both the post-independence systems and continues to exert direct and indirect
influence on our criminal justice today.
For clarity‘s sake, the discussion of developments in the three periods will
follows three themes, viz., criminal justice policy, developments in the substantive law
and, lastly, criminal law and politics.
2.1. THE PRE-COLONIAL PERIOD

The territories now called Malawi were settled by different tribes at different
periods from the fourteenth to the seventh centuries. By the beginning of the
12
eighteenth century, the northern territories had been settled by the Tumbuka, Nkonde
and other smaller tribes; the central territories had been occupied by the Chewa and
Ngoni tribes; whilst the south was occupied by the Yao, Mang‘anja (and later sena and
lomwe) tribes. Politically, these groups of people … Legally,
2.2. THE COLONIAL PERIOD

(i) Introduction
Britain and Portugal were the only colonial powers that expressed initial interest
(and nearly fought) for the territories now called Malawi. It is not the aim of this
Chapter to present in detail the events that led to the declaration of Nyasaland as a
British Protectorate. D.D. Phiri in his illuminating book ―History of Malawi: From
Earliest Times to the Year 1915‖ should be recommended for that purpose 9. However,
suffice to mention that the territories now called Malawi officially became a British
protectorate on the 14th May 1891 when the British foreign office formally declared
―the Nyasaland Districts‖ a British Protectorate. The legal (constitutional) framework
for the declaration of the protectorate status and the subsequent administration was
provided by the Africa Order in Council of 1889. By virtue of that declaration, Malawi
became the ―British Protectorate of Nyasaland.‖ Following the declaration, an
administrative office was set up on the slopes of Zomba Mountain. Sir Harry Hamilton
Johnston arrived in the Protectorate on the 10th September 1891 to assume office as the
Protectorate‘s first Commissioner and Consul General. The name of the protectorate
was subsequently changed to British Central Africa Protectorate in 1893.
The declaration of a territory as a protectorate meant a complete overhaul of the

affected territory‘s political, economic and legal systems. Politically, the declaration
brought together erstwhile warring tribes under one system of administration with his
Majesty King George II becoming the head of state and government but represented in
the protectorate by the Commissioner. All the people in the territory became his
Majesty‘s subjects. Legally, the declaration resulted into a complete displacement of
the pre-colonial legal and judicial systems and replaced them with the English
common law. More specifically to criminal law, the declaration had the following
consequences: firstly, all criminal offences under the customary legal system were
replaced by the offences under the English common law. This might have had little
effect on certain offences for example theft, murder and some offences against the
9 See pages 200 ff.
13
person, but it also introduced into the territory a whole range of offence unknown in
the pre-colonial legal order for example… Further, since colonialism also introduced a
new economic order based on the cash economy and brought in the concept of
individual ownership of land, there were introduced into the territory offences aimed at
protection of the new forms of object of property for example theft and trespass. In
short, side by side the political and economic changes that were brought by
colonialism were a criminal law regime geared to preserve the new acquisitions.
Secondly, apart from the introduction of new offences, the colonial project also meant
that the pre-colonial judicial structures were replaced by a new set of courts presided
over by colonial officials. The 1889 Order in Council stated that… Thirdly, the
colonial administration brought in new forms of punishments unknown in the
precolonial societies. Whilst in pre-colonial criminal justice systems the most common
forms of punishments were compensation and ostracism from the society, the colonial
criminal justice introduced into the protectorate the idea of prison, a central feature in
the English criminal justice system at the time but completely alien to the native
Africans. Section 3 of the Punishments Ordinance, 1908 (P.O. 1908) listed the
following as forms of punishments that could be inflicted by a Court:
1. Death;
2. Imprisonment;
3. Flogging;
4. Whipping;
5. Fine;
6. Payment of compensation;
7. Finding security to keep the peace and be of good behavior;
8. Liability to police supervision.
Except for death and payment of compensation, the rest of the listed forms of
punishments were completely unknown to the pre-colonial criminal justice system.
The 1889 Order-in-Council was subsequently replaced by the British Central

Africa Order-in-Council of 1902 (B.C.A. 1902), and which can be regarded as the first
written constitution for Malawi. The B.C.A. 1902, among other things, established a
High Court which was a ―Court of Record‖ which was bequeathed with ―full
jurisdiction, civil and criminal, over all persons and over all matters in the
Protectorate.‖1 It also allowed the establishment of ―Courts subordinate to the High
Court and Courts of special jurisdiction...‖ 2 On the question what laws will be applied
14
in the protectorate, the B.C.A. 1902 declared that common law and statutes in force in
England on the 11th August 1902 would apply to the protectorate. Article 20 of the
Order contained the famous ―repugnancy clause‖3 that authorized every court to apply
―native law‖ in cases to which Africans were parties as long as such native law was
not ―repugnant to justice and morality or inconsistent with any Order in Council or
Ordinance‖ and further that a court ―shall decide all such cases according to
substantial justice without undue regard to technicalities of procedure and without
undue delay.‖
The B.C.A. 1902 vested the legislative powers of the protectorate in the
Commissioner who was authorized to ―make Ordinances for the administration of
justice, the raising of revenue, and generally for the peace, order and good
1
Section 15 of the BCA Order-in-Council reads, in part, as follows:
(1) There shall be a Court of Record styled “His Majesty ‟s High Court of British Central
Africa…with full jurisdiction, civil and criminal, over all person and over all matters in
the Protectorate.
(2) Such civil and criminal jurisdiction shall, so far as circumstances admit, be exercised in
conformity with the substance of the common law, doctrines of equity, and statutes of
general application in force in England on the eleventh day of August 1902, and the
powers vested in and according to the procedure and practice observed by and before
Courts of Justice and Justices of the Peace in England according to their respective
jurisdictions and authorities at that date, save in so far as the same may at any times
before the commencement of this Order have been, or hereafter may be, modified or
amended by or under the authority of any Order of His Majesty in Council, or by any
Ordinance or Ordinances passed in and for the Protectorate.
2
Article 18 of the Order in Council of 1902
3
Article 20 of the Order in Council read as follows:
In all cases, civil and criminal, to which natives are parties, every court –
(a) shall be guided by native law so far as it is applicable and is not repugnant to justice and
morality or inconsistent with any Order in Council or Ordinance, or any Regulation or
Rule made under any Order in Council or Ordinance
15
(b) shall decide all such cases according to substantial justice without undue regard to
technicalities of procedure and without undue delay.
government of all persons in British Central Africa.‖ 10 However, the B.C.A. 1902
fettered the powers of the Commissioner by requiring that, inter alia, in making the
Ordnances the Commissioner was to ―respect existing native laws and customs
except so far as the same may be opposed to justice and morality.‖11
The 1902 Order-in-Council did not establish a separate legislative institution. All
legislative powers of the protectorate were vested in the Commissioner who was
authorized to ―make Ordinances for the administration of justice, the raising of
revenue, and generally for the peace, order and good government of all persons in
British Central Africa.‖12 However, the B.C.A. 1902 fettered the powers of the
Commissioner by requiring that, inter alia, in making the Ordnances the
Commissioner was to ―respect existing native laws and customs except so far as the
same may be opposed to justice and morality.‖ 13 The English criminal law regime
continued to apply.
One Ordinance that the Commissioner passed and which is of great importance
to the legal history of Malawi is the Subordinate Courts Ordinance, 1906 (S.C.O.,
1906). The S.C.O., 1906 established in the protectorate courts subordinate to the High
Court. The first such court was the District Courts which had ―jurisdiction over all
Europeans and Asiatics in the district‖ and was presided over by District Residents. 14
These courts had criminal jurisdiction and were authorized to pass any sentence as
provided by law except the sentence of death or of imprisonment for a term exceeding
seven years.15 Its sentences were subject to the High Court‘s confirmation.16 The
second type of courts was the Sub-District Courts which were presided over by
10 Section 12 (1) of the B.C.A. 1902
14 Section 3 of the Subordinate Courts Ordinance, 1906
15 Section 6 of the Subordinate Courts Act
16 Ibid
16
Assistant Residents or any other person as may be appointed by the Governor. 17
Subdistrict Courts had limited criminal jurisdiction and were not permitted to pass a
sentence of imprisonment that exceeded one month or of a fine exceeding 5 pound. 18
One would appeal to the High Court against the decisions of both the District Court
and the Sub-district Court.19
Paralleling the District Courts were the District Native Courts which had
jurisdiction over all natives within the district and was held by the District Residents. 20
Residents.3 It had criminal jurisdiction and could pass any sentence which was subject
to the High Court‘s confirmation. There was in effect a difference in terms of
jurisdiction between the District Courts and the Native District Courts. Whilst the
former could not pass a sentence of death or of imprisonment exceeding seven years,
the later could. There were also Sub-District Native Courts with similar jurisdiction to
Sub-District Native Courts. Section 27 of the Subordinate Courts Ordinance allowed
the assessors ―in all native cases, civil and criminal‖ whose duty was to advise the
court upon native law and custom.
The period between 1902 and 1907 can be regarded as the third stage in the
constitutional development of the country. The year 1907 saw the adoption of the
Nyasaland Order in Council, 1907. That Order-in-Council changed the name of the
protectorate from British Central Africa Protectorate to Nyasaland Protectorate. 21 It
also created a Legislative Council with ―full power and authority …to establish
Ordinances, and to constitute such Courts, and Officers, and to make such provisions
and regulations for the proceedings in such courts and for the administration of justice,
as may be necessary for the peace, order and good government of the Protectorate.‖ 22
The establishment of the Legislative Council in effect introduced the idea of
separation of powers to the protectorate. However, the Governor had the right of veto
in the making and passing of Ordinances.
17 Section 4 of the Subordinate Courts Ordinance, 1906

18 Section 7 of the Subordinate Courts Ordinance
21 Article II of the Nyasaland 1907
22 Article X of the Nyasaland, 1907
17
In terms of the law applicable to the Protectorate, the Nyasaland Order in
Council 1907 (No. 2) (or the Nyasaland 1907 (No. 2) repealed sub-section (2) of
Section 15 of the B.C.A. 1902 by substituting it with the following section:
Such civil and criminal jurisdiction shall, so far as circumstances admit, be

exercised in conformity with the substance of the common law, doctrines of
equity, and statutes of general application in force in England on the eleventh
day of august, 1902, and with the powers vested in and according to the
procedure and practice observed by and before Courts of justice and Justices of
the Peace in England according to their respective jurisdictions and authorities at
that date, save in so far as the same nay at any time before the commencement of
this Order have been, or hereafter may be, modified or amended by or under the
authority of any Order of His Majesty in Council, or by any Ordinance or
Ordinances passed in and for the Protectorate.
The Courts of Appeal Ordinance, 190… established the protectorate‘s first court
of appeal. Until the passage of the Eastern African Protectorates (Court of Appeal)
Order in Council in 1909 (E.A.P. (Court of Appeal) 1909, the Court of Appeal was the
highest court of law in the protectorate. The E.A.P. (Court of Appeal) 1909 established
a ―His Majesty‘s Court of Appeal for Eastern Africa‖ with appellate jurisdiction over
British protectorates of East Africa, Uganda and Nyasaland. But the East African
Protectorate Court of Appeal was not the final court of appeal. Enacted side by side
the E.A.P. (Court of Appeal) 1909 was the Eastern African Protectorates (Appeal to
Privy Council) Order in Council, 1909 that allowed the appeal against the decision of
the Eastern African Court of Appeal to the Privy Council.
Until the formation of the Federation of Rhodesia and Nyasaland in 1958, the
above-described judicial structure remained unchanged for the next fifty years.
In the years that followed, a number of regulatory statutes were enacted creating
a plethora of criminal offences which dealt with specific matters in the social and
economic spheres of life. These areas ranged from personal and domestic hygiene,
agriculture, movement, wildlife conservation, marriage, employment, settlement and
many others. Notable of these statutes are the Witchcraft Ordinance, 1911, the Motor
Traffic Ordinance, 1920… It has been noted that ―it was the strict enforcement of
these laws that most affected Africans in their everyday lives and represented for them
the harshest aspect of colonial rule.‖23 Tension between the colonial administration and
23 Simon Coldham, Criminal Justice Policies in Commonwealth Africa: Trends and Prospects
18
the natives was increased by criminal laws because some legislation, like that relating
to intoxicating liquors, firearms and the protection of natural resources in effect
criminalized traditional practices and way of life. To make matters worse, in 1911 the
Witchcraft Ordinance was introduced which in effect rendered criminal certain
manifestations of the belief in witchcraft. The avowed policy objective of the statute
was to eradicate both the belief in and the practice of "witchcraft". The Ordinance
created a number of offences carrying severe penalties with imprisonment for life as
the severest punishment for the offence of profession of witchcraft.
It should be mentioned that throughout the colonial period, the majority of

convictions were secured under these regulatory offences rather than under the Penal
Code. According to Martin Chanock in the 1950s criminal cases based on the Penal
Code represented only fifteen percent of criminal cases in Nyasaland: the remainder
involved infringement of tax and regulatory offences.
One major change in the protectorate‘s criminal law regime in the years between
1907 and 1929 was the passage of a penal statute in 1929. It is worthy noting that the
1929 Penal Code remains in force to date. The drafting of the 1930 Penal Code was
championed by the local legislative Council. It however had at its core the English
criminal law panel-beaten to meet the local conditions. It was was, certainly, based
closely on nineteenth-century English criminal law. The principles of criminal
liability, the definition and classification of offences and the type and scale of
punishments that they imposed reflected was a direct replica of the English criminal
law and it unashamedly made no concession to the African context. These penal
statutes were also supported by a criminal justice system that reflected the
criminological thinking of the nineteenth century England.
The Penal Code of 1929 had a provision that referred directly to English law. As
a general rule of construction of the Code, section 3 provided that:
This Code shall be interpreted in accordance with the principles of legal

interpretation obtaining in England, and expressions used in it shall be presumed,
so far as is consistent with their context, and except as may be otherwise
expressly provided, to be used with the meaning attaching to them in English
criminal law and shall be construed in accordance therewith.
Journal of African Law, Vol. 44, No. 2 (2000), pp. 218-238
19
The influence of English law extended beyond the concepts of criminality and
rules of procedure and evidence, the colonial criminal justice system also incorporated
wholesale the English penal theory itself. The colonial penal system emphasized on
deterrence and retribution and accorded little weight to rehabilitative role of
punishment. The reason for this was that the colonial state was basically authoritarian
with the primary purpose of maintenance of law and order. Criminal punishments were
therefore tailored to achieve that. Even the customary ideas of compensation and
restitution were ignored. Interestingly, even the native courts were more than ready to
impose harshly the English derived forms of punishment: imprisonment and a fine.
The protectorate‘s prison system was created and managed under the Prisons
Ordinance of 1905 and which was later repealed by the Prisons Ordinance of 1922.
For this reason, at the core of the colonial criminal justice system, therefore, was
the prison. Overcrowding in the prisons was a common feature in Nyasaland. The
imposition of a fine was probably the most common penalty in British colonial Africa
since the courts considered a fine as an effective deterrent as well as being an
inexpensive sanction to administer. However, the imposition of a fine on a poor
offender could cause hardship and, when s/he was unable to pay, could result in
imprisonment. Indeed, a sizeable proportion of the prison population consisted of fine-
defaulters.
It was not until after the Second World War that much thought was given to the
rehabilitation of offenders, and the introduction of probation, in particular, provided
the courts with a method of dealing with offenders in cases where punitive sentences
were inappropriate, notably with the increasing number of juvenile offenders coming
before the urban courts. The system of probation was based on the English model and
it seems never to have been asked whether that model was particularly suited to the
African context. The courts continued to show a general preference for penal
sanctionsz3 and, in any case, a shortage of resources both limited the operation of the
service to the main urban centers and undermined the effectiveness of such juvenile
courts as was set up. Mention should finally be made of the Collective Punishment
Laws whose primary objective was to fix responsibility on a group which had failed to
preserve order or had been a "party" to the breaking of the law by one (or more) of its
members who could not be traced. It was a type of crime control particularly suited to
the remoter areas where police services were inadequate, and to an extent it reflected
the customary concept of group responsibility for the wrongs of its members.24
20
However, the laws could operate very harshly, punishing innocent people for the
crimes of a member of their "group". The punishment, ordered as the result of an
administrative enquiry, would take the form of a fine (either in cash or cattle), all or
part of which might be used to compensate any victims.
As early as 1933, the 1930 Penal Code was criticized both in terms of its
formulation and content. Clifton Roberts 24, commenting on similar codes in eastern
Africa, noted that in the drafting of these Penal Codes, in as much as there were
attempts to make the law responsive to African social and political conditions, no real
expert opinion on native customs and mentality was obtained. He attributed this to the
Colonial legislators‘ lack of knowledge of African native knowledge and opinion. He

noted that:
The legal official who too often is inexperienced in native matters and has only
recently taken up work abroad is asked and expected to draft a law or regulation
without expert assistance which may seriously affect the future of the native
community within his sphere of work. In dealing with the question of what laws
are desirable where primitive people are concerned, no system appears to be
followed; each law seems to be applied as the necessity arises to meet some
difficulty, some increase in crime, or some special form of control which may
appear necessary at the moment.
On the actual content of the Penal Codes themselves, he attacked the provisions
dealing with ―rogue and vagabond.‖ It is disheartening to note that the criticism that
Clarkson made to these provisions stand to date. He noted the definition of ―Idle and
Disorderly Persons,‖ ―Rogues and Vagabonds,‖ leaves far too much room for abuse.
This point is being made home today, almost seventy years after it was first made.
From the year 1934 onwards, the administration of the protectorate shifted from
direct rule to indirect rule. Indirect rule involved administration of the protectorate
through the very African institutions. Politically, this involved the use of traditional
institutions to enforce colonial laws. In other words, African political structures were
incorporated into the colonial administrative system. Legally, under indirect rule,
native law was incorporated into the legal system as long as it met the repugnancy test.
As far as criminal law was concerned… whilst legally and judiciary indirect rule took
24 Clifton Roberts, “African Natives under the English System of Penal Law”, Journal of
Comparative Legislation and International Law, Third Series, Vol. 15, No. 4 (1933), pp. 169-175
21
the form of using African judicial structures to enforce the law. In other words, The
colonial government‘s policies on criminal justice in Malawi is of fundamental
importance to the history of criminal law in Malawi because almost all the penal
statutes in force in Malawi at the time of the adoption of the current Constitution, in
1994 and the majority of which are still in force, are exact replicas of the equivalent
English statutes or English common law. This is true not only with regard to the codes
of substantive criminal law i.e., general principles of liability as well as specific
offences and penalties for offences but even with regard to criminal procedure and
evidence. Over the years, there has been little or no attempt to amend the statutes in
order to make them in line with social, economic and political changes that the country
has experienced since the British rule was declared. To make matters worse, there has
been little effort to change or develop our criminal statutes in line with changes in the
substantive law and in the criminological thinking that has occurred in other parts of
the world for the past half a century.
After the imposition of the colonial rule, one area that presented complex
jurisprudential question to the new administration was in the area of customary law.
Generally speaking, customary criminal law was recognized by the colonial authorities
as long as it met two conditions: it was not repugnant to natural justice, equity and
good conscience; and it was not inconsistent with the written law. The formal scope of
customary criminal law during the colonial period was thus relatively limited. By
"customary criminal law" is meant customary rules and principles that regarded certain
forms of misconduct as ―public wrongs‖ deserving of punishment. Whilst some forms
of conduct considered as criminal under customary law was also an offence under the
colonial statutory law, for some it wasn‘t.
One of the most important consequences of the recognition, rather than

incorporation, of customary law was that it brought about a dual system of laws:
written/western versus customary law. This has a corresponding effect of a duality in
the courts in Malawi. On the one hand there was a hierarchy of magistrate courts and
High Court with the Privy Council in the metropolitan London sitting as a court of
final appeal. These courts presided over the more serious offences. The practice and
procedure of these courts were governed by a Criminal Procedure Code which
provided modes of trial closely based on those in England. One major renovation in
these courts was that assessors were used to advise the magistrates/judges. Paralleling
these courts were a system of Native Courts presided over by "traditional" authorities.
22
It has been noted that these courts constituted the enforcement wing of the local
administration. They not only had jurisdiction over customary law matters, including
customary criminal law, but they were also empowered to try minor offences under the
Penal Code, statutory offences and offences under local byelaws. These courts were
not bound by rules of evidence and procedure; they were expected to follow customary
practice. Appeals would lie, directly or indirectly, to the English-style courts.
2.3. POST-COLONIAL PERIOD

(i) Introduction
As seen above, criminal law and the criminal justice system during the colonial
period represented a blunt and harshest instrument of social, economic and political
control of the colonialists. As a matter of fact, one of the rallying posts for the
campaign for independence by nationalist leaders was the immediate abolishment of
the resented regulatory crimes in the areas of hygiene, agriculture and other areas.
Riding on the wave of massive popular support, post-colonial government of Dr
Hastings Banda and Malawi Congress Party assumed office promising to undo the sins
of the colonial administration. And soon after independence the government did
consider the question whether the criminal justice system that was inherited at
independence was appropriate for the social and economic needs of the people of
Malawi. And the government answered the question in the negative. The period 1964
to 1971 has been described as ―one of the most controversial in the country‘s
postcolonial legislative history.‖25
(ii) The duality of the court system

As far as the dual system of the courts structure was concerned, the initial step
the independence government took was to reorganizing the court system into a single
court structure. The former Native Courts were abolished and a single hierarchy was
established with magistrate courts occupying the lower rungs of the judicial ladder and
the Supreme Court of Malawi occupying the highest. But this initiative was short
lived. And it all owes to the infamous Chilobwe Murder Cases. A brief narration of the
events leading to this change in policy should be given here. The events that led to the
25 See Clement Ng‟ong‟ola, “Controlling Theft in the Public Service: Penal Law and Judicial
Responses in Malawi” Journal of African Law, Vol. 32, No. 1. (Spring, 1988), pp. 72-94
23
passage of the Local Courts (Amendment) which constituted Traditional Courts
require a specific mention here as are as controversial as the Traditional Courts
themselves. In 1968 and 69, many gruesome murders occurred in Blantyre‘s suburb
areas of Chilobwe. The murders occurred at night and in some cases involved a
gruesome killing of all members of the household. The manner in which the murders
were committed and the fact that all efforts to apprehend those responsible for these
acts of barbarity both by the police or vigilante groups organized by citizens gave rise
to panic and tension. The panic and tension gave rise to rumors the prominent of
which was that the Malawi government had a hand in the murders and that the blood
of the victims was being used to repay a loan from the South African government.
Considering that the then government had just assumed power a few years before and
with the Cabinet crisis a few years behind, the government tried to assert its authority
and five people were subsequently arrested. They were aligned at the High Court
charged with murder, attempted murder and assault. At the end of a trial, the High
Court acquitted all the accused person of all the charges citing lack of evidence as the
reason. The acquittal presented the government with a dilemma. Firstly, it vindicated
the rumor that it had a hand in the murders and, secondly, it had to act in order to bring
back a sense of security that had been shuttered by the murders.
The official reaction of the government took the form of condemnation of

Received Courts and their abstractedness from ―Malawians‖ sense of justice. The
battle found its way into Parliament where Members of Parliament condemned the
Received Courts as frustrating the efforts of the government in maintaining law and
order. In the words of one Member of Parliament:
"Sir, if there was any loophole at all in our government in the eyes of the
ordinary villager…it was in this field of the judiciary system where something
was still required to be done to prove to the villagers that the government was
there for their protection…Many, many criminals have been let free for the mere
reason that there was not sufficient evidence to prove the guilt. Whilst
traditionally, circumstances surrounding the cases would be and are conclusive
evidence to prove that the criminal was guilty…People are being murdered and
no action is taken‖26
26 Honourable Khofi-Phiri, MP “Hansard, Proceedings from the National Assembly of November 7,
1969 p.59
24
It was the reaction to the acquittals that led to the passage of the Local Courts
(Amendment) Act of 1969 which was hastily drafted, debated and passed. The
acquitted persons were re-arrested, re-charged, convicted and sentenced to death by
the Traditional Courts constituted under the new law.27 Following the passage of the
new law, judges of the High Court resigned en masse.
But the Local Courts (Amendment) Act did not just institute the Traditional
Court: it also expanded the criminal jurisdiction of the Traditional Court; it abolished
the right to appeal to the High Court and it barred any legal representation in the
Traditional Courts.28 The President and the Chief Traditional Courts Commissioner
were given vast powers which included the powers to amend the law relating to
traditional courts, to supervise the courts and even to revise cases. The Minister was
accorded a lot of powers under the law which included powers to establish traditional
courts and define their respective jurisdictions determine offences to be tried by these
courts and the powers to regulate procedure and evidence, bail and sentencing. 29 More
importantly, under its section 36, the Local Courts Act provided as follows:
No proceedings in a Traditional Court…shall be varied or declared void upon

appeal…solely by reason of any defect in procedure or want of form. [The Court
or Chief Traditional Courts Commissioner] shall decide all matters according to
substantial justice without undue regard to technicalities.
The establishment of the Traditional Courts re-introduced in Malawi a dual

system of court: on the one hand there was the Judicial Branch of Government which
was structured as follows: at the bottom were magistrates‘ courts with original and
limited civil and criminal jurisdiction. They were followed by the High Court with
unlimited original and appellate civil and criminal jurisdiction. At the apex was the
Supreme Court of Appeal which was the final appellate court. These courts applied all
statutory laws and the common law of England. By reason of the fact that they applied
the common law which was received from England, they were called
―Received Courts‖ as a way of distinguishing them from their traditional

counterparts.30
27 For an appraisal of the trial, see Paul Brietzke, “The Chilobwe Murders Trial” African Studies
Review, Vol. 17, No. 2, (Sep., 1974), pp. 361-379
28 Section 24 of the Traditional Courts Act
29 Section 40 of the Traditional Courts (Procedure) Rules
25
Paralleling this set of courts were the Traditional Courts. Controversially,
Traditional Courts did not form part of the Judicial Branch of Government but were a
section of the Ministry of Justice. They consisted of Traditional Courts A and B, the
Traditional Appeal Courts and heard appeals from the Traditional Courts A and B,
District Traditional Appeal Courts which heard appeals from Traditional Appeal
Courts; Regional Appeal Courts which heard appeals from the District Appeal Courts
and, at the top of this structure, the National Traditional Appeal Court with final
appellate jurisdiction within this structure. The criminal jurisdiction of these courts
was set in the Traditional Courts Act and was supplemented by published ministerial
orders. With the overall overseer of the Minister of Justice, there was not even an
attempt to respect the principle of separation of powers in the second court structure.
Amongst the powers of the Minister of Justice was the power to determine where a
case should be tried. As a matter of fact, traditional courts were almost an extension of
the executive branch of government.
Traditional Courts were given separate and independent jurisdiction from those
of the High Court that were still applied the English law based procedural and
evidential rules. Traditional Courts had extensive criminal jurisdiction to try all
offences including those that carried the death penalty, i.e., murder, manslaughter,
treason and sedition. The official justification for the re-introduction of Traditional
Courts was that the strict rules of procedure and evidence used in the English styled
High Court resulted in numerous acquittals. In the very words of Dr Hastings Banda,
then Malawi‘s Prime Minister:
If the judges who came from Lincoln‘s Inn and Gray‘s Inn and what not…
quibble just because according to English Law a man is innocent [until proved
guilty] and all that, well, this is not England, Mr. Speaker…English Law
developed and evolved under very, very different conditions from which we live
in this country. Therefore we cannot judge cases here by the standards of English
Common Law…And if those judges and magistrates quibble because they are
trained in Gray's Inn, then I will remove cases of this kind; when they fail to
convict, I will send [the cases] to the local courts [and] the local Courts will do
something.31
30 See Matembo Mzunda “Criminal Law in Internal Conflict of Laws in Malawi” JAL Vol. 29 No 2.
129
31 Dr. Hastings Kamuzu Banda (then Prime Minister of Malawi) Hansard, Proceedings of the
26
As a matter of fact, if a person was acquitted in the High Court he would be
rearrested and taken to the traditional court where a conviction was more than certain.
All prominent political prisoners in Malawi who were so fortunate at least to be tried
were tried in the traditional courts. The very name, ―Traditional Court‖ was a
misnomer: there was virtually nothing traditional in them. It was a case of distorting
customary principles to achieve political ends.
There are other interesting issues that should be mentioned as to the relationship
between the two court structures. Firstly, the High Court (a Received Court) had
coordinate jurisdiction with the Regional Traditional Court in cases of felonies under
the Penal Code i.e., treason, sedition, murder, manslaughter, rape, treason, arson theft
and many more. Secondly, the two courts applied the same substantive law. 32 For that
reason, the same Penal Code was used although for Traditional Courts the offences
they could try had to be determined by the Minister of Justice first. Thirdly, the two
sets applied different rules of procedure and evidence: the first applied the Criminal
Procedure and Evidence Code which was modeled on English law of evidence and
procedure. On the other hand, as far as criminal procedure was concerned, traditional
courts applied Traditional Court (Procedure) Rules, 1962 as was supplemented by
sections of the Code would be determined by the Minister. As far as the rules of
evidence were concerned, there were no clear rules of evidence that was applied. Each
case was decided on the facts as presented and selected rules of evidence from the
CPEC as the Minister could determine. Lastly, the law was not clear as to which set of
courts criminal proceedings could be instituted. In practice, cases in which the
government had an interest, for instance those involving treason, sedition or theft of
government property and other serious offences and committed by Malawian were
instituted in the Regional Traditional Courts. On the other hand, cases involving
nonMalawians were mostly tried in the Received Courts.
(iii) The substantive law

Following independence, most of the regulatory offences were repealed.
However, other statutes remained in intact or there were slight changes in certain
offences in these statutes. For instance, the Witchcraft Ordinance remained unchanged
Malawi Parliament, 3rd Session, 7 October, 1965, Government Printer, Zomba, pp. 190- 191)
32 Section 12 of the Traditional Courts Act
27
and remains so at the time of writing this book although there it is being reviewed at
the moment. The Road Traffic Ordinance was amended to make it in line with the
English statute on the point. The Penal Code remained in force although some
offences were changed. Such sections include the offence relation to theft by public
servant which was changed to create reverse burden on proof. Whilst before the Penal
Code inherited from the colonial period treated the offence of theft by public servant
as another instance of aggravated theft akin to other aggravated thefts and which was
punishable with a maximum sentence of seven years imprisonment, in 1965 a change
was made to the law which aimed at making sure that public servants to
misappropriate public property should be easier prosecuted and imprisoned. The
amendment was based on a perception that in not infrequent cases, public servants
who misappropriate public funds escape conviction because of the technicalities
associated with burden of proof. To remedy the problem, the law was changed to make
the accused person have the burden show that public property which was in his
custody or control and which is missing was not actually stolen by him. All that the
prosecution has to prove to the satisfaction of the court is that a public servant has, by
virtue of his employment, received or has in his custody or control any property, and
such public servant has failed produce or made due account of the same. Upon
discharging its evidential burden, a rebuttable presumption is raised that the accused
person has stolen the missing or unaccounted property and he can rebut the
presumption by showing that he did not steal the property. Courts of law have
explained that the section does not create a new offence but rather merely stipulate
circumstances where a presumption of theft is raised and which require the accused
person to give an explanation that s/he did not steal the property.33
(iv) Criminal justice system and political oppression in Malawi

But as the post-independence leadership learnt soon enough, securing political
hegemony was the most important thing to achieve first rather than a radical
restructuring of the criminal justice system in Malawi. As a matter of fact, there was
no any deliberate policy on criminal justice system in general that can be said guided
criminal justice system in Malawi. There were no corresponding far-reaching reforms
as was the case in land law and constitutional law. But this does not mean that the
33 For a critical discussion of the section, read Clement Ng'ong'ola, “Controlling Theft in the Public
Service: Penal Law and Judicial Responses in Malawi”, Journal of African Law, Vol. 32, No. 1.
p. 72
28
sense of urgency to do something about the criminal justice system was not felt by the
post-independence government. The question is in what direction did it take?
The period covering the first seven years of Malawi‘s independence saw most
of the legislative changes in the area of criminal law and that represents the criminal
justice policy of the new government.
Soon after independence, the new government initiated a number of legislative

changes in the area of criminal law, criminal policy and criminal procedure and
evidence. But unfortunately the effort to change the system never went far beyond a
few changes to the criminal procedure and evidence code. And the driving force
behind the few changes to the code was to make it easier to prosecute those
unfortunate to be considered as enemies of the system. Up to 1993, 52 amendments
were effected to the Penal Code. These amendments cannot be said to have resulted
into fundamental changes in the Code. It is equally difficult to judge whether these
amendments were informed by any concerted and informative research on crime and
the administration of criminal justice or political expediency.
Some of the major projects in penal legislation during the Banda regime were
informed by political needs of the time. It should be remembered that for 31 years, Dr.
Hastings Banda and his Malawi Congress Party (MCP) presided over what has been
rightly referred to as ―probably the most repressive, corrupt, predatory and violent
political system in Africa.‖34 And just as was the case with the colonial administration,
one of the instruments for social, economic and political control was through the
criminal law. And since the chief end of both administrations was absolute social,
economic and political control, there was quite a lot of continuity from the policies and
laws of the colonial predecessors to those of the postindependence government.
Despite the rhetoric about African values and African traditions by the independence
government, there was little attempt to incorporate these values to the betterment of
the penal system. And where they were incorporated they worked to the disadvantage
of the people and with the aim of securing quick convictions of those considered
political dissidents. The Malawian criminal law continued to be characterized by its
harshness and sheer brutality. The prison remained at the core of the whole process.
Emphasis was still placed on retribution and general deterrence with corporal
34 Ihonvbere, J.O., “From Despotism to Democracy: the Rise of Multiparty Politics in Malawi” at p.
225
29
punishment made the norm of the system. The idea of rehabilitation was completely
ignored. Even the language that was employed was harsh and condemnatory. As a
matter of fact as far as the criminal justice system was concerned it was a case of
business as usual.
To make matters even worse, there was no effort to invest resources in the
criminal justice system. The general condition of Malawian prisons were legendary
harsh. Even though Malawi was party to the Universal Declaration of Independence,
African Charter on Human and Peoples' Rights, the International Covenant on Civil
and Political Rights, all these were completely thrown abandoned in favor of the most
brutal, inhuman and degrading treatment and practices in Malawian prisons. With
domestic criticism muted and having shut its ears to international criticism coupled by
the complexities of the cold war, there existed in Malawi one of the harshest criminal
justice system in the Sub-Saharan Africa.
Whilst the Penal Code remained intact (if not made harsher in some respect),
some of the colonial penal legislation that aimed at social control remained intact: a
good example of these is the Witchcraft Act.
The Post-1994 Period

(i) Introduction
The democratization process to Malawi was triggered and influenced by global,
continental, regional and local factors. A detailed examination of all these factors and
events would require a book of their own and have been well discussed elsewhere.
However, on the ground, these factors took the form of specific issues against the
Malawi Congress Party under the authoritarian leadership of Dr. Hastings Banda.
Again it is beyond this book to discuss all the political, social, economic and
constitutional/legal issues that become the rallying point for change in Malawi. It was
a period that saw a people that had been silenced and held down for three decades rise
up and says what they thought was wrong with Malawi Congress Party and Dr.
Hastings Kamuzu Banda.
In the context of our discussion of historical developments of Malawian criminal law,

four things were specially highlighted: firstly, there was the issue of political prisoners
that were being held in Malawi‘s prisons and detention centers without charge or that
were charged and convicted in Traditional Courts in circumstances that were an
affront to the very idea of justice. It should be pointed out that in March 1992 Amnesty
30
International released a report on Malawi which revealed in graphic terms the
barbarity and brutality of the Dr. Hastings Kamuzu Banda‘s regime. The report
revealed to the world that there was overcrowding in Malawian prisons to such an
extent that about 258 persons were being kept in cells built to accommodate one
person and that prisoners were being fed just above the level of starvation. That torture
was routine involving all forms of methods in the torture calendar. Death due to denial
of medical treatment, starvation, torture was a norm. In short, the report represented a
vindication of all of Malawi‘s criminal justice institutions: the police, courts
(particularly the infamous Traditional Courts) and the prisons. It revealed how the
criminal justice system had been corrupted and deformed by the ruling regime in order
to make it an instrument of oppression and terror instead of justice.
Some of these people had been held for almost three decades. The second was
the issue of the very conditions of prisons in Malawi. Malawian prisons and detention
centers are one of the worst in Africa and represent a cruel side of Malawi‘s penal
policy: a continuation of the colonial policy in that area. Thirdly, there was the issue of
corporal punishment. Lastly, there was the issue of the Dress Code.
(ii) The criminal justice policy in Malawi

Since the adoption of the new Constitution there have been deliberate efforts to
reform Malawi‘s criminal justice system in line with the principles and values in the
Constitution. Unfortunately, these efforts have not been accompanied by any specific
policy statement that can be said to guide different reforms in our criminal justice
system. So far, there have been efforts to reform the police and prisons. It is sad to
note that there are few points of linkage between these initiatives.
(iii) Changes to the substantive law

Throughout the 30 years of his rule, Dr Hastings Banda and his Malawi Congress
Party established an efficient and effective legal structure of oppression in Malawi. At
the centre of that oppressive structure was criminal law. Three of the most cited
statutes that represented the harshest side of the regimes criminal justice system are the
Decency in Dress Act, the Preservation of Public Security Act 35, and some provisions
in the Penal Code.36 Even before the advent of the 1994 Constitution, delegates to the
35 The preservation of Public Security (Amendment) Act 1993
36 The Penal Code (Amendment) Act of 1993
31
National Consultative Council and the National Executive Council37 thought it proper
to repeal these laws if at all the transition to democracy was to be carried out in a free
environment. It was thought then that the legal environment created by these laws
could not allow free environment for the discussion and adoption of a new
constitution.
Since the adoption on the new Constitution there have been few major changes to
Malawian substantive criminal law. The first change to the substantive criminal law
was achieved by the Constitution itself. There are a number of constitutional
provisions that affect the substantive criminal law of Malawi. The first such provision
is the one that abolishes corporal punishment.
What ever the changes that have been effected they have not affected the general
principles criminal liability and the definition of all criminal offences in the Penal
Code or any other existing penal statute in force at the time of the adoption of the new
Constitution apart from the Road Traffic Act.
If at all there have been changes then it has been in the area of expansion of
criminal statutes in Malawi. The passage of the Corrupt Practices Act represents a
major breakthrough in this area. Other statutes that have been passed include the
Money Laundering Act and the Prevention of Domestic Violence Act. This is beside a
number of regulatory statutes that set different offences.
(iv) The duality of the court system
37 The National Consultative Council and the National Executive Committee were the two
bodies that were charged with the responsibility to oversee the transition from one-party system of
government to multi-party system of government. They were to oversee general elections and the
assumption of power by the government that would win the general elections of 1994. The NCC
and the NEC acted as legislative and executive bodies respectively with representation from all
political parties registered under the Political Parties (Registration and Regulation) Act.
32
CHAPTER THREE
THE DEFINITION OF A CRIME
I. DEFINITION OF A CRIME
A. Terminology: „crime‟ and „offence‟
33
To both laymen and lawyers the words ‗crime‘ and ‗criminal‘ have quite strong
emotive and condemnatory components. To call someone a criminal connotes the
worst form of personality under the law. At the same time, to say that someone has
committed a crime provokes an expectation that such a person should receive some
sort of punishment than a person who has committed other violations of the law.
Unfortunately, the word ‗crime‘ is used indiscriminately to denote crimes that target
seriously anti-social behavior, such as murder, rape, robbery, corruption etc as well as
what can be called petty statutory contraventions such as failure to fasten one‘s car
belt etc. For most of laymen, the term ‗crime‘ is considered inappropriate for the
relatively trivial administrative or regulatory prohibitions.
It should occasion surprise to many to note that the Penal Code, the principle
penal statute in Malawi, does not use the term ‗crime‘ in any of its provisions. On the
contrary, the Penal Code uses the term ‗offence.‘ This is also the case in many other
jurisdictions for instance England, Scotland and South Africa. As for the Federal
Republic of Germany, a distinction is clearly drawn between crimes proper and
administrative violations. The former are dealt with in the penal code and the later are
treated under a separate administrative criminal law.
However desirable such a development may be, the present legal position in
Malawi (and England) is that the term ‗offence‘ is used to refer to crimes. Section 4 of
the Penal Code defines an ‗offence‘ as ―an act, attempt or omission punishable by
law.‖ [Emphasis supplied.) The emphasis is on the term ‗punishable‘ employed by the
definition. What this means is that at the core of crimes or offences is the idea of
punishment and, as will be seen below, is one of the distinguishing factor between a
crime and other violations of the law. In effect, under the Malawian law the terms
‗crime‘ and ‗offence‘ have the same meaning.
B. The “Formal” Definition of a Crime

The definition of ‗offence‘ contained in section 4 of the Penal Code is
formalistic in nature. In effect it tells us that the hallmark of criminality is that it is a
violation of criminal law and such a violation attracts criminal punishment. The
emphasis on punishment in the definition of a crime is not unique to the definition in
our Penal Code. Different commentators have also emphasized on punishment as the
distinctive mark of crimes. Granville Williams stated that ―if a single test of crime
has to be taken, [the notion of punishment] is undoubtedly the best.‖ Granville
34
Williams further points out the inadequacy of the definition for English law because
―there is no way of distinguishing between the punitive fine and the civil penalty
except in terms of procedure.‖
English courts emphasize liability to punishment at the hand of the State as the
ultimate test of a crime. The matter has not been considered by our courts but I would
propose the same approach for Malawi.
One possible objection to a definition of criminal law that purely turns on the
punitive aspect of the sanctions of criminal law is that other branches of the law,
particularly the law of tort, impose sanctions that are punitive in nature. Exemplary
and punitive damages involve some punitive elements. However credible this
argument is, it is undeniably true that the primary object of damages awarded in the
law of tort is to compensate the plaintiff for the harm incurred. On the other hand,
there are many victimless crimes where punishment is exacted not to compensate
anyone but rather as an end in itself. It is therefore proper to emphasize on the
punishment as long as one qualifies this with a criteria that are not shared by the law of
tort.
Punishment is not the only distinctive mark of crimes. One other mark is that
proceedings for violations of criminal law are instituted at the instance of the State.
The centrality of the role of the State in criminal proceedings in Malawi is
unmistakable. Without official statistics, one can safely say that more than ninety nine
percent of criminal proceedings are brought by the State agencies, i.e., the Office of
the Director of Public Prosecutions, the prosecution branch of the Malawi Police
Service and the Anti-Corruption Bureau. However, of late, cases where private
prosecutors have been involved have been on the rise. However, under the law this can
only be done after the Director of Public Prosecutions has been duly notified.
It is accordingly submitted that, the distinguishing features of a crime can be

described as follows: (a) it is conduct which is legally prohibited; (b) the prohibition
must expressly or impliedly be declared as criminal; (c) the state has a central role in
the commencement of proceedings and the subsequent prosecution of those
proceedings and, (d) the punishment is exacted by the State and neither the convict by
his/her act alone or the victim of the crime can lawfully avoid.
C. The “Material” Definition of a Crime
35
(a) Introduction
Some writers have expressed great dissatisfaction with the ‗formal‘ definitions
of crimes. They have argued that to define a crime as a crime because the state has
declared it so does not tell one much about the real nature of crimes and, ultimately,
criminal law. They argue further that the law in declaring certain conduct as ‗crime‘ or
‗offence‘ gives them a quality from without. It has been thought that there must be
some intrinsic benchmark from criminality apart from the formal declaration by the
state that a particular form of conduct or forms of behavior are criminal. In short, is it
possible to come up with a material criterion for criminality: one that looks tells one
more about what conduct ought to be criminalized?
The question has never before been considered for Malawi. But in other
jurisdictions the question has been pondered upon for some time. And whilst there are
different opinions on the matter, if all what has been said on the matter is considered
within the context of our constitutional order, two conditions have to be satisfied
before conduct is made criminal: it must be wrongful and, secondly, the
criminalization must be permissible under the 1994 Constitution.
1. Wrongful conduct
Conduct should not be prohibited, either by criminal law or civil law, unless such
conduct can be regarded as wrongful. This is a statement that can be accepted by
almost everyone without much controversy. The problem comes in when one starts to
define the criteria for wrongfulness. When is conduct wrongful to warrant legal
prohibition? It is not enough to say that conduct is wrongful when just because it has
been so declared by an Act of Parliament. Surely there must be some intrinsic quality
in the conduct which explains why Parliament thought it proper to label such conduct
as criminal. Literature on the matter identifies three criteria for wrongfulness of
conduct that should warrant criminalization:
(a) Morally wrong conduct

There is a substantial coincidence between some crimes and moral wrongs. It has
never been so simple to define what morality is. But the statement above would still be
true whether morality is viewed as equivalent to religion in which case moral wrongs
are equivalent of sins or where morality is viewed as equivalent of that which is
generally accepted as a better way of interacting in a community. Willful and
36
unjustifiable killing of another person is prohibited by the law. All world‘s religions
prohibit such type of conduct as well and it would be wrong even to most people who
don‘t subscribe to any religious order. And the same is true of most of major crimes
that comprise the core of penal code of modern times: offences like theft, offences of
violence, and offences against the bodily integrity of persons i.e., rape, wounding, etc.
But beyond these crimes, there exist a body of crimes that do not coincide with
moral wrongs. In other words not all crimes are moral wrongs.
To say that there is a coincidence between some crimes and some moral wrongs
is not to mean that the conduct was criminalized because it was a moral wrong. At the
same time, not all moral wrongs are crimes. And there has been the question whether
criminal law should criminalize moral wrongs in the first place. One should therefore
tread with care when considering the issue morality and criminal law. As Lord Atkin
well said in Proprietary Articles Trade Association v Attorney-General for Canada:38
The criminal quality of an act cannot be discerned by intuition; nor can it be

discovered by reference to any standard but one: Is the act prohibited with penal
consequences? Morality and criminality are far from co-existence; nor is the
sphere of criminality necessarily part of a more extensive field covered by
morality–unless the moral code necessarily disapproves all acts prohibited by the
State, in which case the argument moves in a circle.39
(b) The harm (offence) principle

The essence of the harm principle is that the State is justified in criminalizing any
conduct that causes harm to others or creates unacceptable risk of harm to others.
As John Stuart Mill famously stated:
The only purpose for which power can be rightly exercised over any member of
a civilized community, against his will, is to prevent harm to others.40
Joel Feinberg expanded the argument by stating that conduct that causes an offence to
others should be criminalized, the ―offence principle.‖ The harm principle states a
sensible approach to delineating the boundaries of criminal law.
38 [1931] AC 310
39 At p. 324
40 J.S. Mill, On Liberty
37
But saying that conduct that causes harm to others should be criminalized is one
thing and defining harm is another.
One limitation to the harm principle is the principle that the law should not
criminalize trifling wrongs: the ‗de minimis principle.‘
It has also been said that the harm principle does not tell one the reason why
criminal sanctions rather than civil sanctions should be used.
(c) Legal paternalism

The harm principle allows criminalization of conduct that causes harm to others
or creates an unacceptable risk to others. But our criminal law, as well as criminal laws
from other jurisdictions, goes further to criminalize conduct that causes harm to
oneself. Legal paternalism is the principle that allows such an approach. Even though
the principle of individual autonomy is central to our constitutional and legal order, the
principle of legal paternalism justifies the interference of the law on individual
autonomy in such an interference will prevent harm to oneself. Under this principle,
the law criminalizes attempted suicide, precludes consent as a defence to offence
against the person, criminalizes the consumption (and possession) of drugs that are
harmful to the person consuming them etc.
2. Constitutionally permissible to criminalize

Even where the conduct is wrongful and that it is ‗necessary‘ to use criminal law
instead of civil law to deal with that conduct, it still has to be decided whether the
criminalization does is constitutionally permissible. Criminalization would be declared
to be unconstitutional if it contravenes any of the principles, values or provisions of
the Constitution. Much of the discussion on this point will be left to the discussion on
the relationship between criminal law and constitutional law.
38
CHAPTER FOUR
THE DEFINITION OF A CRIME
39
4.1. Introduction
Criminal laws from different jurisdictions classify crimes. In most cases,
jurisdictions employ more than one way of classifying offences depending on the
purpose of the classification. The manner in which legal systems classify crimes is
mostly a combination of different factors, which may be historical, political or
theoretical. In some jurisdictions, the classification of crimes may be a result of careful
and deliberate planning when a penal code is being formulated. In such jurisdictions,
the exercise is informed by deeper understanding of the crimes and the rationale
behind the criminalization. In others, the classification is nothing but a replication of
other jurisdictions‘ (mostly former colonists) classifications.
For Malawian criminal law, the manner in which offences are classified is mostly
a copycat of classification that was employed in England at the time when the Penal
Code was enacted in 1929. For the past nine decades, there has been no attempt to
revisit these classifications even though some of them have long been abandoned in
England. It is surprising that the just ended review of the Penal Code did not even
consider reviewing the classification. But if Parliament believes that the law should
classify offences, it was imperative of it to consider the rationale and criteria for the
classification otherwise it is hard to believe that Parliament understands what
classifying offences entail.
4.2. Classification of offences under the Malawian criminal law

Malawian criminal law employs four ways of classifying offences. These are:
(i) by seriousness of the offences, i.e., felony v. misdemeanor
(ii) by police powers, i.e., arrestable offences and non-arrestable offences
(iii) by moral turpitude
(iv) by the interest protected
Though these classifications have little effect on liability, they are nonetheless of
importance to different stakeholders in the criminal justice system when making
certain decisions. For instance, the class into which an offence falls is a relevant factor
to the police in deciding whether to investigate further or not or whether to prosecute
or not. The classification is also important to courts of law when considering what
punishment to impose. For instance, courts are reluctant to impose non-custodial
sentences on persons convicted of felons than on misdemeanant. Courts of law
furthermore consider these classifications when deciding whether to grant bail or not,
40
this is particularly true with the classification between felony and misdemeanor. The
Bail (Guidelines) Act, 2000 lists as one of the factors to be taken into account the
seriousness of the offence.
4.2.1. Classification by seriousness of the offence: felony and misdemeanor

The most important classification employed by Malawian criminal law and one
which has quite a number of practical as well as jurisprudential consequences is the
one that is made between felonies and misdemeanors. Until 1967, this was one of the
best-known classifications in English law. This classification was abolished in
England by section 1 of the Criminal Law Act of 1967. During the review of the Penal
Code, the Malawi Law Commission did consider whether the classification should be
retained. It was observed that …
Section 4 of the Penal Code defines a felony as meaning ―an offence which is
declared by law to be a felony or, if not declared to be a misdemeanor, is punishable,
without proof of previous conviction, with death, or with imprisonment with hard
labor for three years or more.‖ From this definition, an offence is a felony if, firstly, it
is expressly declared by law to be a felony and, secondly, it is not explicitly stated as a
misdemeanor and even on the first conviction is either punishable with death or with
imprisonment with hard labor for three years or more. There are many offences in the
Penal Code that are expressly labeled as felonies and these include rape 41, abduction42,
manslaughter43, robbery44 and housebreaking and burglary45, just to mention a few. On
the other hand, there are certain offences that are not expressly declared as felonies or
misdemeanors but which are felonies because they attract a punishment of more than
three years even on first conviction. One such offence is treason.46
The Penal Code defines a misdemeanor as ―any offence which is not a felony.‖ 47
There are many offences in the Penal Code which are declared as misdemeanors, for
instance, unlawful assembly48. Ironically, some of these offences attract sentences
41 See section 132 of the Penal Code
41
which are more than those stipulated for felonies. The classification of an offence,
therefore, as a felony or a misdemeanor is not based on the seriousness of the offence
but rather on the decision by Parliament to place it in either of the classes. Otherwise it
beats common sense to see that a misdemeanor, for instance, a riot c/s 73 of PC,
attracts a sentence of five years imprisonment 49 whilst a felony, for example, forgery
c/s 356 of PC attracts 3 years.
The Penal Code does not say more in the consequences of this classification.
Nevertheless, the classification is of practical importance to law enforcers. Police
officers mostly take into consideration the question whether an offence is a felony or
not in deciding whether to prosecute a person or not. In most cases, the fact that an
offence is a misdemeanor may be a reason not to prosecute someone in which case
they may release a person after a warning is issued sometimes with a promise from the
person not to commit the offence again. This is understandable considering the fact
that the police may not prosecute each and every person who is caught committing
even petty crimes owing to limitation of resources. Courts of law also take into
consideration the classification in deciding what punishment to be meted out on a
convict. Not infrequently, courts impose non-custodial sentences on person committed
of misdemeanors and are reluctant to do the same where the offence committed is
classified as a felony.
4.2.2. Crimes may also be classified in terms of moral turpitude

The classification between crimes involving moral turpitude and those that do
not involve moral turpitude was introduced into the Malawian legal system by the
1995 Constitution. According to the 1995 Constitution, a person convicted of a crime
involving moral turpitude is not eligible for election as a Member of Parliament 50 or as
a President of the Republic51 if he or she is so convicted within the last seven years
preceding the date of the presidential and parliamentary elections. The High Court has
acknowledged that this classification though first promulgated by the Constitution
applies to the offences in the Penal Code.52

50 See section 51(2)(c) of the Constitution
51 See section 80(7)(c) of the Constitution
52 In the case of Republic vs. Missi Manyozo Confirmation Case No. 431 of 2002 the High Court
noted that the offence of simple theft is not an offence involving moral turpitude in effect conceding
that the classification applies to the offences in the Penal Code. See also Republic vs. Symon Kamuna
42
But what are the crimes that involve moral turpitude and those that don‘t? The
High Court had the occasion to explain the classification in the case of Hon. J.Z.U.
Tembo and Hon. Kate Kainja vs. The Attorney General53. In that case, one of the
central questions before the court was whether criminal contempt is a crime involving
moral turpitude and hence a conviction of that offence can result into a Member of
Parliament losing his or her seat in parliament under section 63(1)(e) of the
Constitution. In answering the question, the court accepted a statement from the
United States of America Court of Appeal in the case of Phuc Minh Nguyen vs. Janet
Reno, Attorney General of the United States of America and others54 that:
[T]he focus of the moral turpitude analysis is on the inherent nature of the crime
of conviction, as opposed to the particular circumstances of the actual crime
committed…Moral turpitude refers generally to conduct…contrary to the accepted
rules of morality and the duties owed between persons or to society in general…an act
which is per se morally reprehensible and intrinsically wrong. The court further quoted
other definitions from which one can conclude that crimes of moral turpitude involve
conduct that is base, vile, depraved and immoral. 55 The prohibited acts for these
offences are inherently wrong, or mala in se. Crimes that do not involve moral
turpitude involve conduct that is wrong because the law says it so, they are mala
prohibita. When the matter went to the Supreme Court of Appeal, the court found that
the contempt of court in the case was one of civil nature and, hence, there was no need
to embark on the exercise of determining whether the offence was one involving moral
turpitude or not.1
If one considers the definitions noted above, then the majority of offences in the
Penal Code qualify as crimes involving moral turpitude. Most offences in the Penal
Code involve conduct that involves a violation of ―social duties which man owes to
Confirmation Case No. 669 of 2002

53 Civil Case No. 50 of 2003 (Mzuzu Registry)
54 Case No 99–1656
55 The Court referred to the definition contained in the Pennsylvania Code which defines crimes of
moral turpitude as meaning:
that element of personal misconduct in the private and social duties which a person
owes to his fellow human beings or to society in general, which characterizes the act done as
an act of baseness, vileness or depravity, and contrary to the accepted and customary rule of
right
43
fellow man, or to society in general‖ of that are ―contrary to accepted and customary
rule of right and duty between man and man.‖ This would include offences in
Chapters … of the Code.
A. Classification of crimes in relation to the interest protected

The second method of classification adopted by the Penal Code refers to the
interest protected by the relevant crime. Under this classification, crimes that protect
the same or similar interest are put in the same group. This approach has two
advantages: firstly, it helps one to focus attention on the reason for the criminalization.
By clearly specifying the interest sought to be protected by a
and duty between two human beings. Conduct done knowingly contrary to justice, honesty
or good morals.
It also referred to the following definition from Black‟s Law as:
the act of baseness, vileness, or the depravity in private and social duties which man owes to
fellow man, or to society in general, contrary to accepted and customary rule of right and duty
between man and man.
Act or behavior that gravely violates moral sentiment or accepted moral standards of community
and is a morally culpable quality held to be present in some criminal offences as distinguished
from others.
The quality of a crime involving grave infringement of the moral sentiments of the community as
opposed to statutory mala prohibita.
And from Merriam-Webster‘s New International Dictionary(2nd ed) that:

The quality of a crime involving grave infringement of the moral sentiment of the community as
distinguished from statutory mala prohibita.
1
See Hon. J.Z.U. Tembo and Hon Kate Kainja v. Attorney General, M.S.C.A. Civil Appeal No. 27 of
2003
particular class of crimes, and if this is clearly understood, it would become easier for
the court to decide the actual punishment which ought to be meted on an accused
person. Secondly, this method of classification enables one to define the essential
elements of a crime and to develop the law in a rational manner.
The structure of classification of crimes adopted by the Penal Code is thus as

follows:
44
Division I – Offences against public order
Division II – Offence against the Administration of lawful authority
Division III – Offence injurious to the public in general
Division IV – Offences against the person
Division V – Offences relating to property
Division VI – Offences involving malicious injury to property
Division VII – Forgery, coining and counterfeiting
It must not of course be inferred that offences against public order or against the
person or those against property rights are not injurious to the general public as well.
Every crime is one against the public and that‘s why the State takes a central role in
the prosecution of all these offences. What this classification tells one is that in the
case of all these other classes of crimes apart from those in class III, the wrong
immediately and directly harms a particular interest, i.e., public order or administration
or lawful authority or the person or property rights. Whereas in the case of crimes
against the public in general there is no direct victim of the crime and that the interests
of the public in general are harmed. It is also not suggested that, by placing crimes
against public order first in order that the interests of the State are more important than
those of the individuals. It is simply a convenient and also perhaps the traditional order
of treatment.
It should however be mentioned that the classification according to interests

protected by a crime used in the Penal Code may be in dire need for review
considering that it reflects the attitude of the English criminal law in or around 1929.
The best was this is exemplified is in the case of the offence of rape. The offence of
rape is treated by the Penal Code as one that belongs to a class of offence that protects
the public interest in general. Within that division, the offence is further classified as
one that is against morality. This classification is obviously outdated. The current
focus for the offence of rape is not the protection of morality but rather the bodily
integrity of women. Offences such as incest or homosexuality can be properly said to
protect morality but in modern times rape cannot fall into such a class. There is
therefore a need to revisit the classification employed by the Penal Code in order to
reflect current social, economic and political changes that the country has experienced
over the years since the enactment of the Penal Code.
45
CHAPTER FOUR
AIMS AND FUNCTIONS OF CRIMINAL LAW
1. Introduction
46
Criminal law has a number of distinguishable characteristics that makes it
stand apart from the other branches of the law. Criminal liability remains ―the
strongest formal condemnation that society can inflict‖.56 For most people, to be called
a ―criminal‖ represents a lowest labeling a citizen can acquire. And criminal
punishment can sometimes result into serious ―deprivations of a citizen‘s human
rights and freedoms and may even result into death. At the same time, the manner in
which criminal law operates is straightforward requires no explanation to most people.
But this does not take away the question as to the aims and functions of criminal law.
Though may sound straightforward, as the body of substantive criminal law expands to
cover conduct as far apart as unlawful killing of another, rape, theft with violence to
such mundane acts as failure to fasten a seat belt, etc, the question as to the purpose of
criminal law require constant revisiting. And today as Malawi is undergoing through a
review of its principle penal statute, the Penal Code, that question is more important
that before. That question is not only important for academic purposes, different
stakeholders in the criminal justice system has to constantly bear in mind the functions
of criminal law. The legislature has to consider the purposes of criminal law before
they can either criminalise a particular conduct or decriminalise conduct that was
previously criminal, so too the police when deciding whether to prosecute a particular
person for a certain offence and courts of law when imposing punishment. It is sad to
note that rarely are functions of criminal law made to bear in decision making
processes by different players in the criminal justice system when certainly they
should.
2. Punishment
The chief distinctive mark of criminal law that makes it stand apart from civil
law is that it licences the imposition of ―punishment‖ as opposed to compensation.
Punishment remains a very important element of the criminal justice system as a

whole such that a discussion of functions of criminal law always end up in a
discussion of what are called ―theories of punishment.‖ All criminal prohibitions
invariably stipulate a punishment that ought to be imposed on those liable for not
obeying the law. And the idea of punishment means something more than sanctions
imposed by civil law whose aim is to compensate the wronged person. Criminal
sanctions are always regarded as punitive in nature such that even though damages
56 See Andrew Ashworth, Principles of Criminal Law p. 1
47
demanded from a tortfeasor may be more than a fine imposed on a person who has
committed a traffic offence, the latter is always considered as punitive. That is why the
law allows one to insure against contractual or tortuous damages, but not against
criminal fines. 57
The Penal Code S25 outlines the following as the major forms of punishments
that can be inflicted upon those found criminally liable:
(a) Death
(b) Imprisonment
(c) Fine
(d) Payment of compensation
(e) Finding security to keep the peace and be of good behaviour; or to come up for
judgment
(f) Liability to police supervision

(g) Forfeiture
(h) Community service
But these are not the only forms of punishment that can be inflicted by the law: other
forms of punishments provided for by other penal statutes in Malawi include:
(a)
(b) jjj
A brief discussion of each one of these punishments should be done:
(a) Death sentence
A number of Malawian criminal offences provide death as a punishment.
Surprisingly, the very provision in the Constitution that provide for the right to life and
prohibits arbitrary deprivation of life also accepts that ―the execution of the death
sentence imposed by a competent court on a person in respect of a criminal offence
under the laws of Malawi of which he or she has been convicted shall not be regarded
as arbitrary deprivation of his or her life.‖58 The Constitution reconciles the death
penalty to the right to life. Following the Supreme Court of Appeal decision in The
Presidential Referral Case, it is not possible for a court of law to hold that the death
sentence is unconstitutional since no provision of the Constitution can be declared
unconstitutional. However, this does not stop one from challenging others aspects of
57 See Askey v Golden Wine Co Ltd [1948] 2 All ER 35

58 Section 16 of the Constitution
48
the death sentence itself. The manner in which the death sentence is carried out or the
procedure followed can be susceptible to constitutional scrutiny. Indeed in
Kafantayeni and others v Attorney-General59 the Constitutional Court ruled that the
mandatory death sentence for the offence of murder as provided by section 210 of the
Penal Code60 was unconstitutional. The unanimous court held that a mandatory death
sentence infringes the convict‘s right to human dignity in the enforcement of a penalty
as guaranteed by section 19 (2) of the Constitution. Quoting with approval a passage
from the Privy Council‘s decision in Reyes v The Queen61, that:
―It has however been recognised for many years that the crime of murder
embraces a range of offences of widely varying degrees of criminal culpability. It
covers at one extreme the sadistic murder of a child for sexual gratification, a terrorist
atrocity causing multiple deaths or a contract killing, at the other the mercy killing of a
loved one suffering unbearable pain in terminal illness or killing which results from an
excessive response to a perceived threat. All killings which satisfy the definition of
murder are by no means equally heinous.‖ And that:
―a sentencing regime which imposes a mandatory sentence of death on all

murderers, or murderers within specified categories, is inhuman and degrading
because it requires sentence of death, with all the consequences such a sentence
must have for the individual defendant, to be passed without any opportunity for
the defendant to show why such sentence should be mitigated, without any
consideration of the detailed facts of the particular case or the personal history
and circumstances of the offender and in cases where such a sentence might be
wholly disproportionate to the defendant‘s criminal culpability.‖ And further
that:
―The issue here is whether it is inhuman to impose a sentence of death without

considering mitigating circumstances of the commission of the offence and the
offender; whether the dignity of humanity is ignored if this final and irrevocable
59 Constitutional Case No 12 of 2005 (CC)
60 Section 210 of the Penal Code provides:
Any person convicted of murder shall be sentenced to death.
The supplied emphasis highlight the fact that death sentence is mandatory for the offence of
murder. Death
61 [2002] 2 AC 235 (P.C.)
49
sentence is imposed without the individual having any chance to mitigate;
whether the lawful punishment of death should only be imposed after there is a
judicial consideration of the mitigating factors relative to the offence itself and
the offender‖.
(b) Corporal punishment

Before the adoption of the 1994 Constitution, corporal punishment was one of
the forms of punishments that a court of law could pass on a convicted person. Section
19 (4) of the Constitution unambiguously abolished the infliction of corporal
punishment when it declared that:
No person shall be subject to corporal punishment in connexion with any judicial

proceedings or in any other proceedings before any organ of the State.
(c) Imprisonment and detention

Imprisonment remains one of the mostly imposed punishments for criminal
offences. Imprisonment is a limitation to several constitutionally guaranteed human
rights and freedoms. But despite this, imprisonment is not per se unconstitutional.
Where a sentence of imprisonment is imposed by a competent court after finding the
accused person liable for an offence, it is a classic example of the limitation on the
rights and freedoms that meets all the requirements under section 44 of the
Constitution.
The only problem that may arise is with respect to life imprisonment and where
such imprisonment is mandatory. Following the Constitutional Court decision in
Kafantayeni v The Attorney-General, any mandatory life sentence would be
unconstitutional for the same reasons as the ones mentioned in respect of the
mandatory death sentence. In the Namibian case of S v Tcoeib62, the Supreme Court of
Namibia was called upon to decide the constitutional validity of a life sentence. The
court held that a sentence of life imprisonment implicates the constitutional right to
dignity as enshrined in article 8 (1) of the Namibian Constitution. That in order for
such sentence to be demonstrably justified, it was required that there should be a
―realizable expectation of release, adequate to protect the prisoner‘s right to dignity,
which must include belief in, and hope for, an acceptable future for himself.‖ In other
words, irreversible and permanent confinement, irrespective of future circumstances,
62 1996 (7) BCLR 996 (NmS)
50
can not be constitutionally sustainable. Considering the Constitutional Court‘s
willingness to refer to comparable jurisprudence demonstrated in the Kafantayeni case,
decisions like these could have persuasive force before our courts of law.
3. Theories of Punishment
In most cases, a discussion of functions of criminal law reduces itself to a
discussion of functions of punishment or what is commonly called ―theories of
punishment‖. There are a number of ―theories of punishment‖, some very old, and
some quite modern.
The different theories of punishments are sometimes classified into absolute

and relative theories. Absolute theories regard punishment as an end in itself whilst
relative theories regard punishment as a means to a secondary end or purpose. There is
one absolute theory of punishment: retribution. Under retributive theory, punishment
is imposed as an end in itself to revenge for a wrong done. It is retrospective in nature.
Relative theories of punishment on the other hand consider the punishment

imposed as a means to a certain end: so the preventive theory aims at preventing the
commission of a crime; the deterrence theory aims at deterring the individual or
society in general from committing a crime; reformative theory aims at reforming the
criminal. These theories look at the future and the emphasis is on the object (for
example prevention or reformation) which one wishes to achieve by means of the
punishment.
(a) Retributive theory

The retributive theory is the oldest of all the theories of punishments and has
biblical backing through the maxim ―an eye for an eye and a tooth for a tooth‖ as
expressed in Genesis 9:6 and Exodus 21: 23 – 25. The word ‗retribution‘ is often used
in more than one sense. It is used to mean vengeance, expiation, reprobation, just
desert or censure or denunciation. Generally, retribution is based on the premise that
the commission of a crime disturbs the balance of the legal order, which will only be
restored once the offender is punished for his crime. It is seen as a purpose of not only
criminal law but the law in general: if a rule has been contravened, the balance of the
scales of justice is disturbed and can be restored if the other side of the scales is placed
something of equal measure, it be a punishment or damages.
51
I. Vengeance
It is undeniable fact that in many cases, crimes excites feelings of anger on the
part of either the victim (or his/her relatives or friends) or on the part of the general
public that provokes a need for vengeance. That desire for vengeance, therefore,
operates at two levels: firstly, the desire for vengeance on the part of the victim and the
general public‘s need for vengeance. This desire for vengeance is sometimes
noticeable if one visits a court room where a person is being tried for a serious offence
(for example murder, rape or robbery). Sometimes all that victims of crimes would
expect from the criminal justice system is that the criminal should suffer for his or her
wrongdoing and nothing else. It is an open secret that one of the major causes of
―mob justice‖ is the public‘s perception that the State is failing to exact the necessary
vengeance on their behalf on those who have committed crimes. Politicians and the
police know very well the need to maintain public trust in the criminal justice system
particularly on its ability to exact punishment on those who commit serious crimes
otherwise people ―take the law in their own hands.‖
The imposition of punishment therefore involves the satisfaction by the State

of the victim‘s desire for vengeance. As was stated by James Fitzjames Stephen, that:
The infliction of punishment by the law gives definite expression and a solemn
ratification and justification to the hatred which is excited by the commission of the
offence, and which constitutes the moral or popular as distinguished from the
conscientious sanction of that part of morality which is also sanctioned by criminal
law. The criminal law thus proceeds upon the principle
that it is morally right to hate criminals, and it confirms and justifies that
sentiment by inflicting upon criminals, punishments which express it.1
But apart from satisfying the victim‘s desire for vengeance, punishments also
satisfies the public need for vengeance.
The retributive theory further demands that the extent of punishment must be
proportionate to the extent of the harm done: if an eye has been gouged, an eye should
be gouged, and if life has been taken, life should be taken as well. The less the harm
inflicted, the less the punishment ought to be.
Modern penologists criticize the retributive theory as being primitive and that it
is difficult to ascertain what exact punishment will equal the harm caused. It has also
been said that it is difficult to impose a punishment of the same nature as the harm that
52
was inflicted. For example, what exact punishment can equal the harm caused by
offence such as rape? Retribution in its original meaning can best be applied to crimes
against life or crimes against property where punishment can be imposed which is
comparable to the harm caused.
Notwithstanding all the criticism leveled against this theory, it must be

conceded that it is the only one which relates punishment directly to the completed
crime and the idea of justice underlying it. If one were to apply only the deterrent,
preventive and reformative theories, it would be possible to imprison people or keep
them in reformatory centres even before they had committed any crimes. The mere
manifestation of an inclination to commit a crime would be sufficient to imprison
someone. And the every idea of ―punishment‖ presupposes the idea of retribution.
Courts of law in Malawi expressly or impliedly acknowledge that retributive

theory is an indispensable cornerstone of the Malawian criminal justice system. And
even without exact statistics on the point one can safely say that the Malawian society
mostly considers retribution as the only reason why people should be punished. And
not infrequently courts have imposed such punishment by taking into consideration the
expectations on the general public after an offence has been committed. And in terms
of proportionality, courts of law have also tried to impose a sentence that is
proportionate to the offence although sometimes with difficulty in assessing exactly
the proportionality. In Mamela v Republic2 the court held that the value of the
1
James Fitzjames Stephen “A History of Criminal Law of England” Vol. II (1883) pp. 81 – 82
2
11 MLR 168 (H.C.)
property stolen must be taken into consideration in calculating the proper sentence to
be imposed.
II. Expiation
This sense of retribution states that the offender is subjected to a punishment
(which involves suffering) in order to purify him of his guilty. He is paying back a
debt which he owes to the society due to the commission of the crime and through his
punishment he is reconciled with the society. The focus here is on the past crime.
Commentators have observed that there is a deeper psychological explanation
underlying an offender‘s need for expiation. People are nurtured to expect a
53
punishment of some sort when they have done wrong and that after the punishment
one expects to accepted back into the society.
III. Just desert

Just desert proceeds on the idea that criminals should be punished because
―they deserve it.‖ In other words, people who commit crimes deserve to be punished.
In so doing, the society respects them as autonomous and responsible human beings
who have chosen to commit crimes and therefore must face the consequences. If the
society was to deny them the punishment that they deserve, then they would be
―treated like a dog.‖ Further, under the general theory of politics, all persons have
equal rights, equal obligations not to infringe other people‘s rights and equal
obligations to obey the law. If a person defaults on his obligation to obey the law and
commits a crime, that person gains an unfair advantage over all others who have
restrained themselves not to commit a crime. Punishment is therefore imposed in order
to take away that advantage so as to restore the social equilibrium. In short, offenders
desert to be punished in order to destroy the unfair advantage they might have
acquired.63
IV. Censure or denunciation

Another aspect of retribution is denunciation or censure. The imposition of
punishment expresses the society‘s disapproval and censure of the conduct of the
criminal. In the words of Lawton LJ in the English case of Sargeant1:
Society, through the courts, must show its abhorrence of particular types of
crime, and the only way in which the courts can show this is by the sentences they
pass. The courts do not have to express public opinion. On the other hand they must
not disregard it. Perhaps the main duty of the court is to lead public opinion. Anyone
who surveys the criminal scene at the present time must be alive to the appalling
problem of violence. Society, we are satisfied, expects the courts to deal with
63 In the words of Andrew von Hirsch as quoted by CMV Clarkson et al Criminal Law: Text and
Materials that:
In everyday thinking about punishment, the idea of desert figures prominently. Ask
the person on the street why a wrongdoer should be punished, and he is likely to say that
he „deserves‟ it...
54
violence...Those who indulge in the kind of violence with which we are concerned in
this case must expect custodial sentences. Malawian courts have displayed the same
attitude towards crime and punishment as evidenced by what Banda JA said in the
Supreme Court of Appeal decision of Banda and others v Republic 2 in justifying the
imposition of consecutive sentences on the appellants:
We are satisfied that the learned judge in the High Court properly exercised is
discretion in ordering some sentences to run concurrently and others to run
consecutively. The appellants committed very serious offences which disturbed
the peace and tranquillity of the people in the lakeshore resorts and
To say someone „deserves‟ to be punished or rewarded is to refer to his past conduct,
and assert that its merit or demerit is reason for according him pleasant or unpleasant
treatment. The focus on the past is critical. That a student has written an outstanding paper
is ground for asserting that he deserves an award; but that the reward will yield him or
others future benefits (however desirable those might be) cannot be grounds for claiming
he deserves it. The same holds for punishment: to assert that someone deserves to be
punished is to look at his past wrongdoing as reason for having him penalized. This
orientation to the past distinguished desert from other purported aims of punishment–
deterrence, incapacitation, rehabilitation–which seek to justify the criminal sanction by its
prospective usefulness in preventing crime...
1
(1974) 60 Cr App Rep 74 (CA)
2
[1990] 13 MLR 56 (S.C.A.)
cottages. It is the public interest that the appellants should serve long
sentences.
(b) Deterrence
It is said that one of the fundamental reason for having criminal law is to deter
the commission of offences. Before criminal laws are to maintain their deterrent effect,
it is necessary that they must be enforced with sufficient regularity. A distinction must
be drawn between individual and general deterrence and our discussion of the theory
will treat the two separately.
55
I. Individual deterrence
Criminal punishments are imposed on individuals who transgress the law in
order to deter them from the commission of further offences. The idea is that the
unpleasant consequences that follow most forms of criminal punishment will teach the
convict a lesson which will deter him from committing crimes in the future. The
theory is based on the premise that pain and pleasure are some of the greatest
motivators of human conduct.
Assessing the effectiveness of individual deterrence is not easy. The fear of

criminal punishment may have a general deterrence effect on those who have not been
ostracised from the mainstream social institutions or processes (i.e., those who are
law-abiding in the first place) but their effectiveness on people who have criminal
propensity is questionable. This is more true considering the high percentage of
recidivists (or to use the vernacular equivalent, a kabwerebwere) in our prisons.
Individual deterrence is taken as one of the theories often expressly referred to

by courts of law in Malawi when sentencing offenders.
II. General deterrence

Alongside the retributive theory, the theory of general deterrence is today
considered to be one of the most important theories underlying the punishment courts
of law impose in Malawi. The theory of general deterrence is founded on the
assumption that people are deterred from committing crimes by the threat of
punishment. The extent to which this assumption is true is debatable.
General deterrence operates at two levels: firstly, when the legislature defines
offences and lays down punishment to be inflicted on those who commit the crimes,
this alone deters those who contemplate the idea of committing the crime. Secondly, at
the sentencing level, the punishment of offenders serves as an example if what will
befall those who engage in criminal activities.
In practice, the application of the theory has two aspects. First, punishment is
imposed ―at the normal rate‖ in order to keep the threat of punishment alive.
Secondly, ―exemplary sentences‖ are imposed when a specific type of crime is on the
increase or has attracted much publicity. Both aspects underlie some of the sentences
56
that courts of law impose in Malawi. In Kumwenda v Republic64 the Supreme Court of
Appeal justified the imposition of a long custodial sentence on the appellants even
though he was convicted of a misdemeanour in order ―to deter other would-be
offenders.‖65
The idea of general deterrence requires that publicity be given to the

administration of criminal justice. Criminal cases need not be heard in camera and the
media should be given free access to publicise the punishments otherwise the vale of
general deterrence diminishes or disappears completely. Furthermore, the idea of
general deterrence requires an effective and efficient criminal justice system where the
law enforcement institutions work to their optimum best and courts of law convict and
punish accordingly those who are guilty of the offences and acquit the innocent. If the
people who are entrusted with maintaining law and order are not able to trace
offenders and thus to keep crime in check, potential offenders may find it worthwhile
to commit crimes, because their chances of success are good.
One major criticism against the theory is that it offers no adequate explanation
for the punishment of crimes that does not require proof of mens rea, the so-called
crimes of strict liability.
III. Educative deterrence

Punishment of offenders can have a deep subliminal effect of society over time
against the commission of crimes. This is truer with conduct that gives expression to
cultural or traditional underpinnings, for example, accusing others of witchcraft. Every
time a person is punished for accusing others of witchcraft under the
Witchcraft Act, the public morality that accusing people of witchcraft is strengthened
and the habit not to make false accusations in reinforced. In the same way, if nobody is
being punished for making accusations about witchcraft as is the case at the present
time and as has been happening for the past years since the Witchcraft Act was
enacted, people‘s perception about accusing others of witchcraft as wrong is not there.
Today, such accusations are rampart and do not attract any public condemnation.
There is no subconscious inhibition against the making of accusations of witchcraft at
the moment. The same is true with the offences that are consistently punished in
Malawi, for instance, rape: if the Malawian criminal justice system is to cease
64 [1993] 16 (1) MLR 233
65 See also Republic v Mpira 10 MLR 67 (H.C.)
57
punishing people for the offence of rape, in time, it would be regarded as no more
serious than having sex with one‘s girlfriend or wife with the only difference that in
former case the woman was not consenting.
IV. Criticism against the theory

Society‘s efforts to deter crime with punishment may be ineffective because
those individuals most prone to commit crime often act impulsively, with little thought
for the future, and so they may be unmoved by the threat of later punishment.
Deterrence messages they receive, therefore, may fall on deaf ears. This article
examines this issue by testing the relationship between criminal propensity, perceived
risks and costs of punishment, and criminal behaviour.
(c) Reformation or rehabilitation

Until quite recently, increasing importance is being attached to the reforming
or rehabilitating of the offenders as one of the principal objectives of criminal
punishment. It constitutes ―one of the most ambitious developments in penal
theory.‖66 According to the theory, the purpose of punishment is to reform or
rehabilitate the offender as a person, so that he becomes a law-abiding citizen once
again. Just as other theories of punishment, it seeks to secure obedience to the law but,
unlike other theories of punishment, that obedience is achieved not through fear but by
the transformation of the criminal himself. The process involves active remoulding of
the character of the offender so that he is less likely to commit a crime even if there is
no fear of punishment. Here the emphasis is one the person and personality of the
offender and not on the crime itself or the harm caused by the commission of the
offence. The theory is its foundation on the idea that people who commit crimes do so
because of some personality defect, or because of psychological factors in his
background.1 The ascendancy of the theory can also be traced to the growth of the
sociological and psychological sciences. The rehabilitative theory focus on the
individual offender‘s needs and the sentence passed aims at it will help the offender
change his behaviour, attitude and responses.
Our courts themselves acknowledge that the person of the offender should not
be ignored completely when determining the sentence to be imposed. For instance, it
has been acknowledged by court of law that young offenders should be spared from
66 CMV Clarkson at p. 53
58
long custodial sentences in order to minimise their chance of meeting hardened
criminal and recidivists.2 Impliedly, courts of law acknowledge that the prison
1
As was stated by H Weihofen “Retribution is Obsolete” as quoted by CMV Clarkson that:
Crime and criminal responsibility are no mere interesting abstractions for the
amusement of philosophers dreaming up metaphysical constructs. Crime is a reality, an
ever present danger which in some cases is literally a matter of life and death.
The voices of ignorance and hate are loud enough now to shout down every effort to
improve criminal administration by substituting rational for irrational solutions, a
rehabilitative for a punitive approach. The rationale for these programs calls for
understanding the sociological, economic and cultural sources of criminality, the
psychology of criminals and our reaction to criminality. This is too sophisticated for the
single-minded devotees of punishment...
I resent the apostles of punishment-for-its-own-sake arrogating to themselves words
like „moral‟ and „justice‟ and implying in consequence that those who scorn their
metaphysics are amoral or at least unconcerned with moral values. Surely the feeling of
concern for the offender as a human being; the desire to serve him from the criminal career
and to help him redeem himself as a member of the human family; the even wider concern
to prevent others from falling into criminality by searching out the influences and
conditions that produce those frustrating and embittering defeats, degradations and
humiliation of the human spirit that turns a man against his fellow men; the effort,
therefore, to give men those advantages that will help them to keep their feet on the right
path-better education, more healthful dwellings, readier aid for casualties of sickness,
accident and failures of employment – surely all of this is not a less moral ideal than that
which knows only one measure or morality, an eye for an eye and a tooth for a tooth...
2
See Republic v Chikazingwa 11 MLR 160 (H.C.)
systems can either deform further or reform an individual. The theory also works
better where the offenders are relatively young people since when the offender is older
it is difficult, if not impossible, to break old habits and change set ideas.
The theory has attracted its own fair share of criticism. Firstly, it has been
observed that it is difficult to ascertain beforehand how long it will take to reform a
59
person. Accordingly its application might require long (if not indefinite) periods of
imprisonment in order to afford enough time for the required reformation even where a
person is convicted for a minor offence. Secondly, there is the question whether the
criminal justice systems is capable of really reforming criminals. As was observed by
one commentator on the theory:
One immediate consequence of a rehabilitative regime is a drastic enlargement

of state concerns. The state‘s interests now embrace not only the offender‘s
conduct but, as Michael Foucault has put it, his ‗soul‘: his motive, his history,
his social environment. A traditional restraint on governmental authority is the
notion of relevance: the state is limited in its inquiries and actions to that which
is pertinent to its legitimate purposes. But when there are no clear limits on
what may be relevant to the treatment process and when the goals of treatment
have not been clearly defined, the idea of relevance as a regulatory of public
authority is destroyed or impaired.67
Above and beyond, the rehabilitation of the offender is more than not an ideal
rather than a reality. There are certain people that cannot be rehabilitated and the
theory does not say what to do with such people. In addition, if the theory is to taken
to its logical conclusion, then people should be detained even when they have not
committed any crime as long as they manifests a clearly criminal propensity.
(d) Prevention/Incapacitation
There are some offenders who just cannot be reformed or deterred through fear
of criminal sanctions from committing crimes. Such people will go on to commit
crimes as long as they are able to do so. What should the criminal justice system do
with such individuals? There are two ways of processing such offenders. Firstly, the
use of the normal punishments sometimes serves a preventive function or incapacitates
the offender from committing further offences. Examples are capital punishment, life
imprisonment, forfeiture of, for example, a driver‘s licence or an instrument used for
the commission of an offence. Indeed if the law was to allow the castration of serial
sexual offenders, this too would have gone a long way to incapacitate persons from
committing offences.
Apart from the preventive effect of some of the punishments under the law, the
law also allows the imposition of ―preventive sentences‖ that are imposed specifically
67 Quoted by CMV Clarkson p. 55
60
to render the offender incapable of committing further offences. Preventive sentences
are longer than that which would normally be imposed for the offence. Such
preventive sentence are supported because they are taken to protect the society.
(e) Restorative theory

It has been said that crime has three primary impacts: physical, emotional and
financial. Most crimes have devastating physical, emotional and financial
consequences on their victims. These consequences extend beyond the victims
themselves and affect their families, friends and communities. It has been said that the
emotional impact is the most important and one that lasts far too long. These emotions
include anger abd rage, fear and terrot, frustration, confusion, guilt and self-balame,
shame and humiliation, grief and sorrow. Even though not all victims experience these
emotions but they are common in many response to crime to most people. It involves
feelings of Nobody prepares oneself for the violence perpetrated upon them by
criminals. For that reason, for most people it is difficult to cope with the coming event
after the crime has been committed. They have to report the matter to police, they have
to attend numerous court hearings and testify all that demands a lot from them.
In most countries including Malawi, the criminal justice system does not take
adequate account of the impact of crime on their victims and pay much attention on
the offender leaving the needs of the victims unattended to. This is evidenced even by
the theories discussed above. The focus is either to punish the offender or deter him or
other from further commission of the offence or to reform him or her. The response to
crime has been conceptualised and approached in such a way that the victim of the
crime is relegated to the position of a mere spectator. In response to this, the
restorative justice is premised on the idea that ―harm‖ that victims of crime incur
should be paramount to the definition of, and response to crime.
Restorative justice renders the victim of the crime a key stakeholder in the
criminal justice system. It seeks to restore to them that which was taken away from
them by the commission of the crime. It allows them to participate in the criminal
justice process and allows them to identify the harms caused from them and their
needs in response to the harm caused and their demands from the community, the
offender and the justice system. The theory further advocate for the provision of the
direct assistance to all victims of crimes by addressing what are considered to be five
chief needs of victims of crime: a sense of security, answers to question, an
61
opportunity to testify to their truth, an opportunity to feel empowered, the possibility
of restitution and thus vindication.
The restorative theory focuses on the victim of the crime and seeks to restore
him or her to the position they were before the commission of the offence. It focuses
on their needs as the starting point of the criminal justice system and determines what
they need from the offender, the community and the criminal justice system in order to
be restored to the position they were before the commission of the crime. Unlike the
other theories of punishment that focuses on the offender and relegates the victim to
the peripheral, the theory makes the victim as the central of the justice system and
seeks to help him/her to recover from the crime.
It is practically difficult to meet all the needs of the victims of crime. For
instance, how can one address the needs of a victim of the offence of rape who has
been infected with HIV following the offence? Or is it possible to address the needs of
the relatives of a person who has been murdered and the deceased was the sole
breadwinner? Despite these problems, the importance of the restorative theory is that it
allows the consideration of the victim as a stakeholder in the criminal justice system
than is the case at the moment.
Section 21 of the Penal Code allows the payment of compensation to the victim
of a crime by the offender as one of the punishments that a court of law can impose on
a convict in Malawi. Compensation is different from restitution.
(f) Combination of theories

It is clear that each one of the theories discussed has a core of truth and that
each one, if applied on its own, reveals certain deficiencies. Courts of law in Malawi
have not specifically addressed themselves on these theories. But it is clear that their
approach on the question is that they do not reject any one of the theories outright and,
on the other hand, do not accept any single theory as being the only correct one to the
exclusion of all the others. Our courts apply a combination of all the principles
discussed above.
In Henry Ndidyeni vs Republic, Criminal Appeal No 2 of 2005 (H.C.) (Unrep)

the High Court held that in determining the sentence to be imposed the factors that
ought to be considered by a court of law include: “how much hardship was put on the
other party, such as the complainant, the conduct of the accused in the whole affair,
62
public or national expectation and interest, benefit accrued, detriment to the other
party and or the nation, and gravity of the particular offence to mention a few.”
CHAPTER FIVE
THE IMPACT OF CONSTITUTIONAL LAW ON CRIMINAL LAW
1. Introduction
63
This Chapter discusses the impact of the 1995 Constitution of Malawi on
criminal law. One of the most important consequences of this impact is the
establishment of a rights-based approach to criminal law. But before coming to the
rights-based approach to criminal law, the Chapter begins with a discussion of some of
the fundamental principles of the Constitution particularly those that have a strong
bearing on criminal law followed by a discussion of the provisions of the Bill of
Rights which are the most important to criminal law. This discussion then leads into
the premise that the philosophy underpinning criminal law is a rights-based one.
2. Constitutional supremacy
One of the axiomatic pillars of the constitutional order that existed under the
1966 Constitution of Malawi was the supremacy of Parliament. In terms of that
system, all legal, political and administrative powers of the state were amenable to
Parliament, itself answerable to none. An individual aggrieved by a statute could not
apply for either judicial or constitutional reviews since the powers of the courts were
limited to the interpretation and enforcement of the ―will of the legislature‖ as
expressed in a duly enacted Act of Parliament. As was expressed by Jere J. in Malawi
Law Society v Banda and the Attorney General1:
… [T]he governing principle in the construction of a statute is accurately stated

in Maxwell on Interpretation of Statutes, 11th ed., at 1–2 (1962):
―A STATUTE is the will of the legislature, and the fundamental rule of

interpretation, to which all others are subordinate, is that a statute is to be
expounded ‗according to them that made it‘…If the words of the statute are
in themselves precise and unambiguous no more is necessary than to
1
12 MLR 29 (S.C.A.)
expound those words in their natural and ordinary sense, the words
themselves in such case best declaring the intention of the legislature…‖68
In other words, the function of courts of law was to decipher the ―will of the
legislature‖ as contained in the provisions of the statute in accordance with the
established rules of interpretation.
68 At p. 42
64
In bid to transform the country‘s constitutional and legal systems, the 1994
Constitution radically transformed the former constitutional model of parliamentary
supremacy into one of constitutional supremacy. Sections 5, 9, 48 (2) and 199 are
rightly accredited as the provisions that carry the transformatory objective of the
Constitution from parliamentary supremacy to constitutional supremacy. The sections
read as follows:
Section 5:
Any act of Government or any law that is inconsistent with the provisions of the
provisions of this Constitution shall, to the extent of such inconsistency, be
invalid.
Section 9:
The judiciary shall have the responsibility of interpreting, protecting and
enforcing this Constitution and all laws in accordance with this Constitution… Section
48 (2):
An Act of Parliament shall have primacy over other forms of law, but shall be
subject to the Constitution.
Section 199:
This Constitution shall have the status as supreme law and there shall be no legal
or political authority save as is provided by or under this Constitution. It is apparent
that these sections have a marked impact on criminal law in Malawi in that they
demand that the validity of all laws must be tested against the provisions of the
Constitution. As a matter of fact, section 199 unambiguously affirms the ascendancy
of the principle of constitutional supremacy and the country‘s current constitutional
and political systems.
But the sections go beyond declaring the doctrine of constitutional supremacy:

most importantly, apart from requiring courts of law to interpret and enforce the ―will
of the legislature‖ as contained in statutes, the sections allocate to courts of law in
Malawi an additional responsibility of examining the substantive content of all the
laws of Malawi for their compliance with the provisions of the Constitution and
empowers the courts to declare any law that is found inconsistent with the Constitution
as ―invalid.‖ And since the adoption of the Constitution courts of law have
demonstrated willingness to abide by this constitutional mandate and have declared a
65
number of statutory provisions invalid. 69 Though at the time of writing this book there
was no case in which courts of law had declared a provision of a penal statute invalid
on the ground of its unconstitutionality 70, there is no doubt that once a penal statute is
so found wanting, courts of law shall not hesitate to do the needful.
3. Constitutionalism
Side by side the doctrine of constitutional supremacy is that of constitutionalism.
The doctrine of constitutionalism was explained by Bennet in the following words:
‗Constitutionalism‘ is the doctrine which governs the legitimacy of government

action. By constitutionalism is meant – in relation to constitutions written and
unwritten – conformity with the broad philosophical values within as State.
Constitutionalism implies something far more important that the idea of ‗legality‘
which requires official conduct to be in accordance with pre-fixed legal rules. A power
may be exercised on legal authority; however that fact is not necessarily determinative
of whether or not the action was ‗constitutional.‘ 71 If there is one area where the need
to comply with broader philosophical values is more pressing then it is in the area of
criminal law. The importance of the doctrine of constitutionalism to criminal law is
that it calls on the state to be vigilant to abide by ―broad philosophical values‖ that
underlie the current legal and political orders. These are values that may not be spelt
out expressly in the Constitution but which informs it.
For instance, one philosophical value that underlie the 1995 Constitution and
which is relevant to criminal law is that of individual autonomy. The value of
individual autonomy states include the values of individual autonomy
69 Cases where statutory provisions have been declared unconstitutional include: Director of Public
Prosecution v Hastings Kamuzu Banda et al Criminal Appeal No 21 of 1995 in which the court
declared sections 313 and 314 of the Criminal Procedure and Evidence Code (cap: 7:02) of the Laws
of Malawi as being inconsistent with section 42 (2) (f) (iii) of the Constitution which guarantees,
inter alia, the right to remain silent and not to testify during trial;…
70 However, there are a number of case pending in the constitutional court in which the
constitutionality of a number of penal provisions is being challenged.
71 Bennet H Constitutional and Administrative Law (3rd edn) (2001) at p. 5
66
4. Respect of Human Rights
Apart from the principles of democracy,72 trust,73 accountability and
transparency,74 separation of powers and its attendant doctrine of checks and
balances,75 constitutional supremacy,76 the rule of law,77 and equality,78 the
Constitution also provides for the principles of inherent dignity of each human being 79
and respect of fundamental human rights and freedoms.80 On the human rights front,
however, there are a number of issues that must be highlighted and that carry the
transformative agenda of the Constitution. The first is the fact that the Constitution is
―people centred.‖ The people of Malawi – and not abstract notions of national unity
or four corner stones – are at the centre of the institutional and procedural
arrangements under the Constitution. In its preamble, the Constitution states, inter
alia, that its adoption was informed by the recognition of the ―sanctity of human life‖
and that it seeks ―to guarantee the welfare and development of all the people of
Malawi‖ [the emphasis is mine] and the ―desire‖ to create ―a constitutional order in
the Republic of Malawi based on the need for an open, democratic and accountable
government.‖ It further places the ―people of Malawi‖, not only as the ultimate source
of legitimacy to govern, but also as the ultimate end of all powers that-be when it
declares that ―all legal and political authority of the State derives from the people of
Malawi and shall be exercised in accordance with this Constitution solely to serve and
protect their interests.‖81 [Emphasis mine]
Besides making the people of Malawi at the centre of government, in total

contradistinction to its predecessor, the Constitution adopts as one of its fundamental
principles, the requirement for respect of human rights and fundamental freedoms.
Through its section 12 (iv), it provides:
72 Sections 11 (2) (a), 12 (iii) and 12 (iv) of the Constitution and the Preamble to the Constitution.
73 Sections 12 (ii), 12 (iii) and 13 (o) of the Constitution
74 The Preamble to the Constitution and sections 12 (iii) and 13 (o) of the Constitution
75 Sections 7, 8, and 9 of the Constitution
76 Section 5 of the Constitution
77 Section 12 (iv) of the Constitution
78 Sections 4, 6 and 12 (5) of the Constitution

81 Section 12 (i) of the Constitution
67
The inherent dignity and worth of each human being requires that the State and
all persons shall recognize and protect fundamental human rights and afford the
fullest protection to the rights and views of all individuals, groups and minorities
whether or not they are entitled to vote.
Thirdly, the Constitution envisages that the welfare and development of the
people of Malawi can only be best guaranteed and their fundamental human rights are
safeguarded where there is established and maintained in Malawi ―an open,
democratic and accountable government.‖ The link between protection of human rights
and the need for an open and democratic society is clear both from the preamble to the
Constitution and the limitation clause to the rights under the Constitution. For
instance, section 12 (v) of the Constitution reads:
―As all persons have equal status before the law, the only justifiable limitations
to lawful rights are those necessary to ensure peaceful human interaction in an
open and democratic society.‖ [The emphasis is mine] And in section 44 (2)
where it is provided that:
―…no restrictions or limitations may be placed on the exercise of any rights

and freedoms provided for in this Constitution other than those prescribed by
law, which are reasonable, recognized by international human rights standards
and necessary in an open and democratic society.‖ [The emphasis is mine.]
The insistence for ―an open and democratic society‖ should be understood within the
context of the history of human rights abuse during Dr. Banda‘s rule. The requirement
is reactive to the fact that despite the glaring abuse of human rights, proponents of one
party system insisted that they respected human rights.
Fourthly, the Constitution does not merely require the respect and protection of
human rights but goes further to link respect for human rights to the concept of human
dignity. Unlike other ordinary legal rights, the respect for human rights is premised on
another important value and principle of inherent dignity and worth of each human
being. Section 12 (iv) should be quoted again here: it provides:
―The inherent dignity and worth of each human being requires that the State
and all persons shall recognize and protect fundamental human rights…‖
The association between the ―inherent dignity and worth of each human being‖ and
the need that the ―State and all persons‖ must recognise and protect human rights is
far from being coincidental. Memory was still fresh in the minds of the framers of the
68
Constitution how, during Dr. Banda‘s rule, the denial of human rights resulted into
persistent assault on the dignity of the victims and, on the other hand, how a denial of
equal dignity and worth to people invariably result into a denial of their human rights.
It was therefore deliberate on the part of the framers of the Constitution to link up the
two principles which are obviously supportive of each other.
The principle of human rights has profound importance to criminal law in

Malawi for the following reasons: firstly, criminal laws have restrictive effect on
human rights and freedoms of the citizens. And unlike other laws that may have the
same effect, criminal laws do so under the threat of punitive sanctions, which includes
death.82 And since most of the criminal offences represents limitation of the human
rights and freedoms under the Constitution, each one of them must satisfy all the
requirements for the limitation of the rights under the constitution, i.e. they must be
prescribed by law, reasonable, recognised by international human rights standards,
necessary in an open and democratic society 83, must ―not negate the essential content
of the right or freedom in question‖ and, lastly, must ―be of general application.‖ 84 In
other words, criminal law should respect fundamental human rights and freedoms.
There have been calls already for the Law Commission to carry out a comprehensive
review of all penal statutes in order to determine whether the offences and principles
that they contain are consistent with human rights standards85.
5. The Rule of Law

One of the fundamental principles of the Constitution that has a bearing on
criminal law in Malawi is the principle of the rule of law. A number of constitutional
provisions can be cited as supporting the principle of rule of law in the Constitution.
Firstly, section 12 (v) reads:
82 Under the laws of Malawi, death sentence is one of the punishments that can be inflicted by a
court of law. See section 25 of the Penal Code and section 16 of the Constitution
83 Section 44 (2) of the Constitution
85 For instance, Kanyongolo F.E. has noted that most of the offences relating to pubic order,
public security and morality “restrict the freedom of action of individuals to an extent inconsistent
with constitutional and international human rights standards.” He therefore recommends that the
Law
69
As all persons have equal status before the law, the only justifiable limitations to
lawful rights are those necessary to ensure peaceful human interaction in an open
and democratic society.
And section 12 (vi) reads:

All institutions and persons shall observe and uphold the Constitution and the
rule of law and no institution or person shall stand above the law.
Lastly, section 44 (2) requires that nay limitation on the rights and freedoms
guaranteed in the Constitution must be ―prescribed by law.‖
The principle of rule of law has very important theoretical and practical
consequences to criminal law. The following are the basic requirement of the
principle:
(i) Prohibition Against Ex Post Facto Laws

Probably one of the most important and well-known requirement of rule of law,
the prohibition against ex post facto laws require that laws should not be applied
retrospectively. In short, laws must be prospective and not retrospective. The
requirement is mentioned as one of the requirements of ―fair trial‖ principle under
section 42 (2) (e) (vi) of the Constitution. The section reads:
Every person arrested for, or accused of, the alleged commission of an offence
shall, in addition to the rights which he or she has as a detained person, have the
right…as an accused person, to a fair trial, which shall include the right…not to
Commission “should conduct a comprehensive review of [all] penal statutes to determine whether
the criminal offences they create are consistent with constitutional and international human rights
standards.” And that “[i]n this exercise, the commission should be guided by principle rather than
populist rhetoric in which prejudice against non-conformism masquerades as public morality and
so-called cultural values.” See Kanyongolo F.E. MALAWI Justice Sector and the Rule of Law (2006)
at pp. 14 – 16
be convicted of an offence in respect of any act or omission which was not an

offence at the time when the act was committed or omitted to be done, and not to
be sentenced to a more severe punishment than that which was applicable when
the offence was committed.
70
The essential content of the requirement is that a criminal conviction should only be
based on a norm that existed at the time when the incriminating act or omission was
done. Its popular Latin catch phrase is nullum crimen sine lege. The principle offers
essential safeguard against arbitrary prosecution, conviction and punishment.
The principle does not only target the legislature and prohibit it from making
laws that infringe upon the principle, it also, most importantly, courts of law from
applying penal statutes in such a way so as to infringe upon the principle. The resultant
formulation can be stated to be the twin requirements that norms of criminal law must
not be made to apply retrospectively and that they must not be applied is such a way
that they affect the accused retrospectively.86
(ii) Laws should be clear

The second requirement of the principle of rule of law is the need for clarity of
the law. The requirement can be synthesized into two principle requirements: firstly,
laws must be formulated with clarity and certainty so as to be sufficiently reasonable
and accessible. And secondly, the authority applying the law shall not interpret it
extensively. As it has been stated ―crime must be defined with sufficient precision to
serve as a guide to lawful conduct and to confine the discretion of police and
prosecutors.‖ And in the words of Justice Cardozo:
One does not need to expatriate upon the value of certainty in a developed legal
system. Law as a guide to conduct is reduced to the level of mere futility if it is
unknown and unknowable.87
And as was stated by Justice Stewart in the case of Parker v. Levy88
86 In the case of Bouie v. City of Columbia, and commenting on the nullum crimen principle,
the Supreme Court of America, analogizing an unforeseen judicial enlargement of a criminal statute
to the enactment of a retrospective penal statute had this to say:
Indeed an unforeseeable judicial enlargement of a criminal statute, applied
retrospectively, operates precisely like an ex post facto law, such as the Constitution forbid.
All ex post facto laws have been defines by this court as one “that makes an action done
before the passing of the law, and which was innocent when done, criminal; and punishes
such action or that aggravates a crime or makes it greater than it was, when committed.
87 Justice Cardozo, The Grow of the Law
71
As many decisions of this court made clear, vague statutes suffer from at least
two fatal constitutional defects. First, by failing to provide fair notice of
precisely what acts are forbidden, a vague statute violates the first essential of
due process of law…No one may be required at peril of life, liberty or property
to speculate as to the meaning of penal statutes. All are to be entitled as to be
informed of what the state commands or forbids. Words, which are vague or
fluid, may be as much a trap for the innocent as the ancient laws of Caligula…
Secondly, vague statutes offend the due process by failing to provide explicit
standards for those who enforce them, thus allowing discriminatory and arbitrary
enforcement…A vague law impermissibly delegates basic policy matters to the
policeman, judge and juries for resolution on an ad hoc and subjective basis….
The absence of specifity in criminal statutes invites abuse on the part of the
prosecuting officers, who are left free to harass any individual or group who may
be the object of official displeasure.
The quotation is abundantly clear and self-explanatory.
(iii) Laws must be publicised

A third requirement of the rule of the law principle is that laws must be
published. If a man does not know the factual basis for the criminality of his act, how
can he know his act is wrong and hence must avoid it? Publicity of the law does not
stop with the law just being known. Equally important is the extent to which the law
communicates its policy objectives to the targeted group. In Malawi, according to
section 74 of the Constitution, no Act of Parliament shall become law until it has been
published in a Gazette. And according to section 9 of the Interpretation Act, a law
comes into effect on the ―day next preceding the day‖ it is published in the Gazette.
By requiring that before an Act of Parliament comes into force it must be Gazetted, the
Constitution gives effect to the requirement that good laws must be published. Of
course after such publication ignorance of the law is never a defense.89
(iv) Laws should be clear

Section 44 (2) of the Constitution requires that all limitations on human rights
and fundamental freedoms must be reasonable. Though formulated as applicable to
88 (1974) 417 US 774 at 774-775

89 Section 7 of the Penal Code
72
limitation on human rights, the requirement is relevant to criminal law as well because
they are generally restrictive on the citizen‘s rights and freedoms. There must be a
sufficiently objective basis for sending people to jail. All laws must indeed serve a
reasonable objective. This requires us to examine the law itself. In other jurisdictions,
notable of which is Canada, Parliament‘s power to make criminal laws has to meet a
certain objective criteria. The leading authority on this point is the Privy Council
decision in the case of Federation of Agriculture v. Attorney General for Quebec
where it was held that a prohibition was not criminal unless it served a ―public
purpose.‖ As to what is the ―public purpose‖ it was held that these included ―public
peace, order, security, health and morality.‖ Hence it is not enough to say that the
legislature has the power to decide which conduct to be processed using criminal law.
It is also necessary that there must be a balance of interests so as to achieve the
wisdom and rationality of crime prevention respect of human rights and dignity.
(v) Obedience to law

The last requirement of the principle of rule of law is that citizens (and which
includes residents and visitors) are bound to obey the law90. As was expressed by
Bentham that, ―Under a government of laws, what is the motto of a good citizen? To
obey punctually; to censure freely.”91 And the obligation to obey the law persists even
though one does not agree with the substantive content of the laws themselves.
6. Punishment
As indicated above, one of the distinctive marks of criminal law is its use of
punishment against its transgressors. At the core of each criminal offence lay a
punishment to be inflicted. All criminal punishments represent one greatest threat to
rights and freedoms of the individual. The Constitution assumes that the state has the
power to punish offenders, for the relevant provisions in the Constitution that deal
directly with the issue of punishment, only protects individuals against a ―cruel,
inhuman or degrading…punishment‖92 and prohibits corporal punishment.93 the state
90 Lyons D., Ethics and the rule of law (1984)
91 Quoted by Lyons at p. 208

73
may punish individuals in pursuance of sentences duly passed by competent courts of
law and subject to the applicable principles and rules of procedure and evidence.
This does not mean that one cannot subject the power of the state to punish to
constitutional scrutiny. In a constitutional order that adopted, inter alia, principles of
constitutional supremacy and respect of human rights the extent to which the state can
punish individuals will always be subjected to constitutional scrutiny to determine
whether the values and principles of the Constitution and the fundamental rights shape
and restrict such powers.
7. A rights-based philosophy of criminal law

The present constitutional dispensation has brought with it a new philosophical
foundation for criminal law – a rights-based philosophy. It calls for a shift from the
culture of authority that characterised the criminal law and criminal justice system of
both the colonial and post-colonial constitutional and political systems to one of
constitutionalism and respect of human rights. The transformative potential of the
Constitution should be carried to all branches of the law as demanded by the
Constitution itself. Further, all branches of the law should be continuously developed
and adapted so as to conform to international legal norms and standards. And criminal
law as a branch of the law should also be subjected to this development and change.
Most importantly, the Bill of Rights in the Constitution reflects a rights-based

approach to all law (including criminal law) and the criminal justice system and
process. The rights on arrest, detention and fair trial as contained in section 42 of the
Constitution are included in the Bill of Rights and the courts are enjoined to review all
law in light to the constitutional prescripts.
The shift in emphasis with regard to the recognition of rights and freedoms under
the present constitutional system means that the rights and freedoms are no longer
residual and vague in definition. The rights-based approach is founded on the
constitutional entrenchment of fundamental rights and freedoms in the Bill of Rights
and the constitutional imperative that the ―rights and freedoms enshrined in [the]
Constitution [should] be respected and upheld by the executive, legislature and the
judiciary and all organs of the Government and its agencies and, where applicable to
them, by all natural and legal persons in Malawi.‖94
74
But the rights-based philosophy is incompatible with the culture of authority: it
requires a legal and political dispensation based on accountability and transparency,
equality, respect of human dignity and democratic governance. As far as criminal law
is concerned, what is required is that the criminalisation process (and
decriminalisation) must be democratic, transparent and in accordance with the
responsibilities to the people of Malawi. The criminal laws themselves must be
consistent with human rights and freedoms enshrined in the Constitution whilst the
criminal justice procedure must be respect the dignity of all those involved. This
requires a reform of the policing laws, practices and procedures, the criminal justice
process itself and the prison laws, practices and procedures.
CHAPTER SIX
INTERPRETING CRIMINAL STATUTES AND MATTERS OF PROOF
1. Interpreting statutes
In Chapter four we saw how the 1994 Constitution has impacted on our criminal
law. Particularly we saw how the principle of the Rule of Law demands for, inter alia,
75
that judicial interpretation of statutes should not transgress the values of predictability
and certainty. Unfortunately, it is a fact that sooner or later becomes obvious to any
person who reads the law that imprecision is inherent in the enterprise of legal
ordering. Whatever effort is taken by drafters of the law or and interpreters of the law
there is a degree of imprecision that still remains in the law. A number of reasons can
be cited for this: firstly, statutes are expressed in general terms. They require so
definite meaning through the process of interpretation and application to particular
cases. Secondly, the drafting of law is such that offences sometimes omit to specify or
provide for some of the fundamental aspects of criminal law, such as what (if any)
mental element an offence requires, or whether omissions as well as positive acts are
within the prohibited conduct, or failure to specify matters of causation or failure to
define key terms in the statute. Thirdly, the legislature cannot foresee every variant
case that might arise when it create an offence. Because of these and other reasons, it
is left to courts of law to play a pivotal role in legal ordering.
Whilst all of these problems apply to both civil and criminal statutes, when it
comes to criminal law the process of statutory interpretation has additional
requirements. Generally speaking, judges are expected to show proper restraint. In
civil law, the creativity of judges in coming up with interpretation of statutes that
extend its application can earn praise. Similar creativity in criminal law in should be
avoided at all cost. A court can not extend the reach of a criminal provision and apply
it so similar facts. The scope for condemnation and punishment cannot be enlarged. As
a matter of general principle, criminal law must not be extensively construed to the
accused‘s detriment. One cannot apply criminal law by an analogy.
2. Interpreting criminal statutes

In interpreting criminal statutes in Malawi, the starting point is section 3 of the
Penal Code. The section provides:
This Code shall be interpreted in accordance with the principles of legal

interpretation obtaining in England, and expressions used in it shall be presumed,
so far as is consistent with their context, except as may be otherwise expressly
provided, to be used with the meaning attaching to them in English criminal law
and shall be construed in accordance therewith.
The section in effect requires that the interpretation of the Penal Code be in
accordance with principles of legal interpretation applied by English courts. As an
76
exception to this general requirement, however, a statutes should be interpreted
otherwise than the English interpretation if, firstly, such an interpretation is
inconsistent with the context within which words or expressions are used by the Penal
Code and, secondly, if it is expressly provided otherwise.95
According to the English principles of interpretation of statutes, there are three

steps a court must take when interpreting statutes:
(a) Ordinary meaning in context

In the first instance, the interpretation of criminal statutes need not differ in
technique from the interpretation of a civil statute. In this regard, the cardinal rule of
statutory interpretation obtaining in England is that, at first, it should take the form of
ascertaining the ―ordinary meaning in context.‖ This is achieved by ascertaining the
ordinary or natural meaning of the words or expression employed. This rule has been
long acknowledged by courts of law in Malawi in interpreting both criminal as well as
civil statutes. As was stated by the Supreme Court of Appeal in Malawi Law Society v
Banda and the Attorney-General2 ―the first rule that a court has to consider when
confronted with construing a statute is to give the statute the natural meaning of the
words used‖ and that ―this is the court‘s paramount duty.‖ The underlying rationale
behind the rule is that a statute is the ―will‖ of the legislature and such the court must
strive to ascertain what exactly the legislature intended to communicate when it
enacted the Act using the words it chose to use in that particular Act or provision. In
the words of the authors of Maxwell on Interpretation of Statutes quoted by Jere J in

the case of Malawi Law Society v Banda and the Attorney-General, that:
A STATUTE is the will of the legislature, and the fundamental rule of

interpretation, to which all others are subordinate is that a statute is to be
expounded ‗according to the intent of them that made it‘…If the words of the
statute are in themselves precise and unambiguous no more is necessary than to
expound those words in their natural and ordinary sense, the words themselves in
95 See Mussa v Reginam, (1923 – 60) ALR Mal 693 (H.C.)
77
such case best declaring the intention of the legislature. (Income Tax
Commissioners v Pemsel, [1891] AC 534)96
But to say that the rule only requires that the words must be given their natural or
ordinary meaning is to give one part of the rule; an attendant requirement is that the
words must be given their natural and ordinary meanings ―in context.‖ It portends
that meaning is not merely lexical, but also depends on the surrounding words and the
purpose of the writer or speaker. For example, section 145 (1) (b) of the Penal Code
provides in part as follows:
Every male person who…in any public place persistently solicits…for immoral
purposes, shall be guilty of a misdemeanor…‖ (Emphasis supplied)
On its part, section 24 (1) of the Corrupt Practices Act97 reads in part as follows:
Any public officer who by himself…corruptly solicits…any gratification as an
inducement or reward for doing…anything in relation to any matter…with which
any public body is or may be concerned shall be guilty of an offence. (Emphasis
supplied)
Section 145 (1) of the Penal Code provides for the offence of a male person soliciting
for the purpose of immoral purposes whilst section 24 (1) of the Corrupt Practices Act
provides for the offence of corrupt practices by public officers. But both sections
employ the term “solicit” in describing the prohibited conduct. But it is quite clear
from the purposes of the two offences that the intended meaning of the term as used in
the two sections is different. The application of the rule therefore requires more apart
from ascertainment of the ordinary meaning of the words or expressions used. It
requires also that that exercise must be placed within both the lexical and legislative
contexts.1
The requirement that the process of ascertaining the ordinary meaning of words
and expressions used in a statute must be ―in context‖ is further supported by the
requirement that courts of law are required to interpret statutes to avoid ambiguities.
Courts have achieved this by creating a presumption against ambiguities. As Bolt Ag.
96 The application of the rule to Malawi was also confirmed in the following cases: Mwakawanga v
Republic, 5 ALR Mal 14 (S.C.A.); Rendall-Day v Republic, 4 ALR Mal 144 (H.C.); Kampira v
Republic, 4 ALR Mal. 320 (H.C.); Osman v Reginam, 3 ALR Mal 595 (H.C.)
97 Act No 18 of 1995
78
J. in Mudaliar v Kayisi2 puts it, ―in the interpretation of statutes there is a
presumption against absurdity, and where there is ambiguity a court of law will
endeavor to adopt an interpretation which is consistent with common sense.‖3
In determining the ordinary meaning of a provision, a court may be confronted

with a statute of considerable age. And the question is: should the court seek the
meaning of those words or expression as of the time when the Act was passed or in
terms of current usage? In England, the position is that the words or expressions used
must be in accordance with the meaning the words or expression bears in present day
English even if it is apparent that such a meaning was not in the mind of the legislature
at the time when the statute was enacted. In the words of the House of
Lords Burstow4 that criminal statutes ―are always speaking‖ and the speech is of
present day. In the case, in construing the expression ―assault occasioning actual
bodily harm‖ for the purposes of section 47 of the Offences Against the Person Act of
1
This requirement was endorsed by Jere J. in Malawi Law Society v Banda and the AttorneyGeneral
when he said:
I am fortified in so holding by the other principle of interpretation. It is that an Act of
Parliament should be read as a whole. You cannot get out a section and interpret it on its own. The
Act must be read as a whole. Then you get the complete story from the legislature. Or as observed
by Banda J in Heissen v Nicholas (S.R.) Ltd, 11 MLR 505 (H.C.) that:
“…in interpreting the provisions of the Act, you cannot disregard other clauses of the same
section and interpret subsequent clauses completely in isolation. An elementary rule of
construction is that construction is to be made of all parts together and not of one part only
by itself…Every clause of a statute should be construed with reference to the context and the
other clauses of the Act.
2
(1964 – 66) 3 ALR Mal 103
3
At p. 12 See also Wright v Republic, 7 MLR 292 (H.C.) at p. 297
4
[1998] A.C. 147
1861, the court held that it included psychiatric injury even such an extension was
even imaginable to the Parliament that passed the Act in 1861.98 There is no direct
98 See also K [2002] 1 A.C. 462
79
Malawian authority on the question. However, in Regina v Raxmidas99 it was held that
when general words are used in a statute they must be read in light of the contest and
the state of the law when the statute was passed.
(b) Legislative background

But even the best-drafted statutes will present courts with interpretive problems.
What other principles of interpretation do courts of law in England apply when the
first rule does not yield satisfactory and conclusive results? This can happen, for
instance, where there are two ―ordinary meanings‖ of the same word or expression. In
England, it is allowable for courts of law to investigate the legislative background of a
statute in order to ascertain the intention of Parliament.100
(c) Strict construction

If all the above mentioned rules of interpretation fail, and the statute under
consideration is criminal, courts of law are required to adopt a strict construction and
give the benefit of that uncertainty to the accused person. This is the presumption of
strict construction. Its justification is based on the rule of law requirement of ―fair
warning‖: that a criminal statute should give fair warning to citizens as to the conduct
that is being prohibited and the consequences for disregarding the prohibition and
should not require a citizen to guess as to their meaning. And where a statute fail to
give such a fair warning, it should be construed against imposing liability upon a
defendant who reasonably thought he or she was within the terms of the law. As Lord
Reid remarked in Sweet v Parsley101 that: ―if a penal statute is reasonably capable of
two interpretations that interpretation which is most favorable to the accused must be
adopted.‖102
A note of caution should be sounded at the very onset: the strict construction rule
should not be adopted so as to defeat the ordinary meaning in context of a particular
provision. Such that, even if the ordinary meaning in context of a statute goes against
the defendant in a criminal case such an interpretation must be adopted.
99 (1923 – 60) 1 ALR Mal 409
100 See Attorney-General‟s Reference (No 1 of 1988) [1989] A.C. 971
101 [1970] A.C. 132
102 At p. 149
80
What this means is that the strict construction rule ―is a default rule, one to rely on if
the meaning of the statute cannot be ascertained by other standard techniques.‖1
Malawian courts of law have generally followed this approach and, just as their
English counterparts, have held that if there is an ambiguity in a penal statute it must
be resolved in favor of the accused person. In Kampira v Republic2 two sections of the
Criminal Procedure Code of 1958 were in conflict as to the jurisdiction of second class
magistrates: the first, section 5 provided that the maximum imprisonment term that a
second class magistrate could pass was 5 years‘ imprisonment, whilst the second,
section 8 allowed a second class magistrate to pass a preventive imprisonment of up to
14 years. The appellant in the case was convicted of the offence of theft and sentenced
to a preventive imprisonment of up to 9 years. In the face of the clear ambiguity
between sections 5 and 8 of the Code, the Supreme Court of Appeal
1
As Lord Reid explained in Director of Public Prosecution v Ottewell 1 that:
The Court of Appeal (Criminal Division) refers to the well-established principle that in
doubtful cases a penal provision ought to be given that interpretation which is least
unfavorable to the accused. I would never seek to diminish in any way the importance of
that principle within its proper sphere. But it only applies where after full enquiry and
consideration one is left in real doubt. It is not enough that the provision is ambiguous in the
sense that it is capable of having two meanings. The imprecision of the English language
(and, so far as I am aware, any other language) in such that it is extremely difficult to draft
any provision which is non ambiguous in this sense. The section is clearly ambiguous in that
sense. The Court of Appeal (Criminal Division) attaches one meaning to it, and your
Lordships are attaching a different meaning to it. But if, after full consideration, your
Lordships are satisfied, as I am, that the latter is the meaning which Parliament must have
intended the words to convey, then this principle does not prevent us from giving effect to
our conclusions.
2
4 ALR Mal 405 (S.C.A.)
81
resolved it in favour of the appellant by holding that a second class magistrate could
only pass a maximum of 5 years imprisonment whether preventive or ordinary. 103 The
same is true of taxation or fiscal statutes.104105
103 See also Jakisoni v Republic, 4 ALR Mal 539 (S.C.A.); Maikolo v Reginam, (1964 – 66) ALR Mal
584 (S.C.A.); Regina v Secretary of Lake Nyasaland Mineral Waters (1961 – 63) ALR Mal 157
(H.C.); R. v Godfrey, (1923 – 60) 1 ALR Mal 970 (H.C.)
104 See A Limited v Commissioner of Taxes, 5 ALR Mal 286 (S.C.A.) and B v Commissioner of
Taxes,
105 ALR Mal 306 (S.C.A.)
82
PART 2 – PRINCIPLES OF CRIMINAL LIABILITY
CHAPTER SEVEN THE REQUIREMENT OF A PROHIBITED CONDUCT

CHAPTER EIGHT THE MENTAL ELEMENT OF A CRIME MENS REUS
CHAPTER NINE PARTICIPATION IN A CRIME
CHAPTER TEN DEFENCES
83
CHAPTER SEVEN
THE REQUIREMENT OF A PROHIBITED CONDUCT
A. INTRODUCTION
Every provision defining an offence will, at least, contain a description of the
conduct (whether an act, omission or state of affairs) that is being prohibited. The first
question, therefore, to be asked when determining criminal liability, is whether the
person charged did that which is being prohibited or brought about the prohibited
result. It is a fundamental principle of Anglo-American criminal law theory that for
every crime there must be a commission of a prohibited act or the bringing about of a
prohibited result or state of affairs. In other words, mere thoughts or intention to
commit a crime are not punishable by criminal law however morally reprehensible
those thoughts, desires or intention might be. In other words, criminal law is not
concerned with punishing people for harboring evil, wicked or criminal thoughts or
intentions.
This does not mean that only completed actions are punishable by our criminal
law. If, indeed, our criminal law was to require that a conviction should be handed
down to an accused person only where he has successfully committed the prohibited
act or brought about a prohibited result, it would have fallen far too short in its primary
goal of protecting the society from criminals. As will be seen below in our discussion
of inchoate offences, our criminal law extends criminal liability to cover acts that do
not constitute the actual commission of the principal offence: but those that represents
the execution of one‘s intentions. Criminal law requires that, as a minimum, there
must be some physical manifestation of the criminal intentions. The manifestation may
take the form of an agreement to commit an offence, what is called in criminal law a
conspiracy or attempting to do that which is criminally prohibited. An agreement to
commit an offence is punished by criminal law because it represents a physical
manifestation of the criminal intentions and, hence, brings the wheels of criminal
justice system into motion.
If the issue is presented in a form of a continuum, at one extreme end there is

mere thoughts or intention to commit a crime unaccompanied by anything in the form
84
of translation of the thought into action and at the other end there is the actual
commission of the crime: here one should think of the actual striking of the fatal blow
in terms of the offence of murder or taking a thing from someone in terms of the
offence of theft. In between there is a complex interplay of rules imputing criminal
liability to people who play different roles even before the offence is committed.
People covered include those who agree to commit a crime, those to counsel, incite,
and aid or abet other to commit offences. The understanding here is that, even where
the principal offence has not been committed, these people poses a greater danger to
the society warranting the intervention of the law than a person who merely wishes he
would have stolen something and does nothing more to effectuate his thoughts. The
law will not disturb such a person but not until he agrees with other people to steal the
thing, or he incites others to commit the offence. Despite the obvious serious moral
culpability of the person, our criminal law has decided to let his be and pounce at the
very moment he starts to effectuate his or her intentions. Much of the discussion of the
rules and principles governing liability for inchoate offences has been reserved for a
discussion in Chapter… below.
B. JUSTIFICATION FOR REQUIRING AN ACTUS REUS

Different reasons have been advanced to justify the requirement that there must
be an actus reus before criminal liability is imposed. The first and oldest justification
was that, it was difficult to prove the mental state of an individual. As Brian C.J.
observed, ―the thought of man is not triable, for the devil himself knoweth not the
thoughts of man.‖ It is not hard to appreciate the difficulties that would beset any
attempt to prove a person‘s thoughts particularly where the person chooses to remain
silent. As a matter of fact, the state would mostly be successful in obtaining the
thoughts by employing techniques that compromise the fundamental human rights and
freedoms of those affected. But the argument of impossibility is fundamentally
challenged in instances where a person voluntarily confesses his thoughts or
intentions. To many people, a person who confesses that he has had intentions to rape
and kill women deserves criminal punishment just as a person who was hard enough to
carry out his intentions whether successfully or not. Both persons need to be deterred
from committing criminal offence. In such circumstances, impossibility as a
justification is greatly weakened. This has called for a search for other reasons to
justify the requirement for actus reus.
85
Two other reasons often times advanced to justify the insistence for actus reus
are that, firstly, cumulative thoughts alone would unjustifiably extend the reach of
criminal law so wide to cover conduct that causes no harm to any one and, secondly, it
has been argued that it would be difficult to draw a line between day-dreaming and a
fixed intention to commit a crime. The point was best presented by Glanville Williams
(a statement quoted with approval by Black J in Powell v State of Texas1) that:
The reasons for this refusal to permit conviction without proof of an act are
difficult to spell out, but they are nonetheless perceived and universally
expressed in our criminal law. Evidence of propensity can be considered
relatively unreliable and more difficult for a defendant to rebut: the requirement
of a specific act thus provides some protection against false charges. Perhaps
more fundamental is the difficulty of distinguishing, in the absence of any
conduct, between desires of the day-dream variety and fixed intentions that may
pose a real threat to society; extending the criminal law to cover both types of
desire would be unthinkable, since ‗[t]here can hardly be anyone who has never
thought evil. When a desire is inhibited it may find expression in fantasy; but it
would be absurd to condemn this natural psychological mechanism as illegal.‖
C. HUMAN ACT
The primary subjects of criminal law are human beings. Subject to certain
conditions, criminal liability will therefore be imposed on human being only. The act
must therefore be a human act. In the days gone by, animals or even inanimate objects
were tried and punished. But this could not happen in many of the modern civilized
legal systems. A human being can, however, be punished if he commits a crime
through the instrumentality of an animal, for instance, where a person sets his dog to
bite someone.
The rule that the act must be committed by a human being is subject to the
exception that a juristic person such as a company or firm can also commit a crime and
be held accordingly liable for criminal sanctions. However, even in cases of corporate
liability, section 24 of the Penal Code provides that ―where an offence is committed
by any company or other body corporate…every person charged with or
1
392 US 514 (1968)
86
concerned or acting in, the control or management of the affairs or activities of such
company, body corporate…shall be guilty of that offence and shall be liable to be
punished accordingly…‖
D. VOLUNTARY ACT
One of the central requirements of actus reus is that the doing of the prohibited
act or the bringing about of the prohibited result must be voluntary or willed. This
means that the person must be capable of making a decision about his conduct and be
in a position to prevent the prohibited act or result. The requirement that the act must
be voluntary is central to our criminal law.
The requirement for voluntary act is distinct from that of mens rea. Consider the
following instances: a person who, thinking that a gun he is holding is a toy-gun and
not knowing that it is a real gun with real ammunition, and jokingly pulls the trigger
resulting into the killing of another will be acquitted of murder. The reason is that,
since he did not know that what he was holding was a gun, he lacked a mental element
(mens rea) for murder, i.e., an intention to kill. In the second situation, a person, whilst
holding a real gun, stumbles and falls on the gun causing it to discharge killing a
person. The person will be acquitted of the offence of murder because his conduct was
involuntary.
An act will be said to be involuntary in three cases:

(i) Absolute force
The first situation under which a person‘s act would be said to be involuntary is
where he is subjected to absolute force. The following is an example of absolute force:
X who is much bigger and stronger than Y gets hold of Y‘s hand and forcedly uses it
to hit M. Y with his inferior physique would not have been in a position to prevent his
hand being used to hit M even if he had tried. Under the law in those circumstances he
did not perform any act. It was Y who legally will be said to have hit M.
(ii) Compulsion
Compulsion is a second situation under which a person will be said to be
involuntary. Section 16 of the Penal Code provides for compulsion. Under the section,
a person is to have acted under compulsion if during the commission of the offence
―it is committed by two or more offenders, and if the act is done or omitted only
87
because during the whole of the time in which it is being done omitted the person is
compelled to do or omit to do the act by threats on the part of the other offender or
offenders instantly to kill him or do him grievous bodily harm if he refuses; but threats
of future injury do not excuse any offence.‖ The wording of the section is self
explanatory.
(iii) Automatism
A third situation where a person is said to have acted involuntarily is where he or
she acts in a mechanical fashion. Cases where a person is said to have acted in a
mechanical fashion include reflex movements such as heart palpitations or a sneezing
fit, somnambulism, muscular movements such as an arm movement while a person is
asleep or unconscious or having a nightmare, an epileptic fit, and the so called
―blackout.‖ These types of actions are commonly referred to as ―automatism‖ since

the actions of the person resemble those of an automaton.
(iv) Intoxication
Excessive intake of alcohol or other drugs or narcotics (whether voluntary or
otherwise) sometimes lead to a situation where a person ceases to know what he or she
is doing. The question as to whether to impose criminal liability on people who
commit prohibited acts whilst intoxicated has baffled both courts of law and jurists in
different countries for a long period of time. Under Malawian criminal law, section 13
of the Penal Code is the relevant provision and provides as follows:
(1) Save as provided in this section, intoxication shall not constitute a defence to
any criminal charge.
(2) Intoxication shall be a defence to any criminal charge if by reason thereof the
person charged at the time of the act or omission complained of did not know
that such act or omission was wrong or did not know what he was doing and
–
(a) the state of intoxication was caused without his consent by the malicious
or negligent act of another person; or
(b) the person charged was by reason of intoxication insane, temporarily or

otherwise at the time of such act or omission.
88
(3) Where the defence under the preceding subsection is established then in a
case falling under paragraph (a) thereof the accused person shall be
discharged and in a case falling under paragraph (b) the provisions of section
12 shall apply.
(4) Intoxication shall be taken into account for the purpose of determining
whether the person charged had formed any intention, specific or otherwise,
in the absence of which he would not be guilty of the offence.
(5) For the purpose of this section ―intoxication‖ shall be deemed to include a
state produced by narcotics or drugs.
The wording of the section is quite clear. Firstly, as a matter of general rule, a
person will not be allowed to raise intoxication as a defence to a criminal charge. It
should be observed that the Penal Code does not define what intoxication is.
Intoxication is different from drunkenness and there are different levels of intoxication
correlative to the amount of alcohol or drugs actually consumed. Even in cases of
drunken and driving, there is a legally defined amount of alcohol in the blood that
qualifies one as being in a drunken state. The question has never been considered in
Malawian courts.
There are very important exceptions to the general rule. Under subsection (2),
intoxication shall be a defence to a criminal charge if, by reason of the intoxication,
the person did not know that the act he was doing or the omission he was making was
wrong or did not know what he was doing. Besides, either of the following conditions
must subsist before a person can successfully raise the defence of intoxication: either
the state of intoxication must have been caused by a ―malicious or negligent act of
another person‖ or, the person charged must have been, by reason of the intoxication,
insane.
The condition under subsection 2 (a) require that the act of the other person in
causing the intoxication must be malicious or negligent. A person who buys another
beer at a bar to the point of the other‘s intoxication does not will therefore fail because
it cannot be said to be malicious. And an act is said to be malicious where it is done
with evil or criminal intentions. Under the condition in paragraph (b) above, if
intoxication leads to insanity one will avail himself of the defence. This would be the
case whether or not the act of intoxication was voluntary or not.
89
Probably, the most important exception to the general rule is the one contained in
subsection 4. The subsection provides that intoxication shall be taken into account for
the purposes of determining whether a person formed any intention where such
intention is a constitutive element of an offence. Under the subsection, intoxication is
not raised as a defence but rather can be proved to establish that the accused person
was incapable of forming the required intention.
E. FORMS OF ACTUS REUS

The expression ―prohibited act‖ most times than not evokes an impression that
the law criminalizes positive acts only. But this is not the case. Malawian criminal law
extends criminalization beyond positive acts to cover other forms of conduct and
behavior that cannot be said to be acts or actions but involve omissions, state of affairs
or situations. Of course the majority of offences in our penal statutes involve
prohibitions against the doing of specific acts.
I. State of Affairs
Just like its counterparts in the common law tradition, Malawian criminal law
sometimes declares a particular state of affairs or situation as criminal and renders any
person who contributes to the creation or existence of that situation or state of affairs
criminally liable. A good example of such type of offence in our Penal Code is the
offence of being drunk and disorderly in a public place c/s 180/184 of PC and affray
c/s 84 of PC. Here the targeted conduct is not drinking of beer to the point of
drunkenness (which is a positive act) but rather being drunk at a public place. It is the
state of being drunk at public place which is being targeted.
In most cases of this type, even where the accused person never ―did‖ anything
to contribute to the creation of the state of affairs being targeted, criminally liability
will still fall on him or her. The fact that the accused person was carried to a public
place whilst he was drunk and against his will and unaware of what others are doing to
him does not change anything. What matters is that a prohibited state of affairs existed
and which state of affairs is prohibited by the law.
II. Offences of possession
90
Apart from state of affairs offences, criminal law also extends criminal liability
to offences of possession. It be mentioned at the very outset that the term possession is
a word of art in law and possession in criminal law may mean something slightly
different from possession in common usage of that term. Some of the offences of
possession are those contained in the Dangerous Drugs Act and…
There is a statutory definition of possession in both the Penal Code and the
Dangerous Drugs Act. Under regulation 35 of the Dangerous Drugs Regulation,
possession is defined in the following terms:
A person shall be treated as in possession of a drug for the purposes of these

Regulations if that drug is in his actual custody or is held by some other person
subject to his control or for him or on his behalf.
Under the Penal Code, possession is defined in somehow the same way as follows:
‗Possession,‘ ‗be in possession of‘ or ‗have in possession‘ includes not only
having in one‘s own personal possession but also knowingly having anything in
the actual possession or custody of any other person, or having anything in any
place (whether belonging to, or occupied by oneself or not) for the use or benefit
of oneself or of any other person; and if there are two or more persons and any
one or more of them with the knowledge and consent of the rest has or have
anything in his or their custody or possession, it shall be deemed and taken to be
in the custody and possession of each and all of them.
From these definitions, it is clear that possession means something more that what a
layman understands it. It includes:
(a) Having something in one‘s own custody. This is the most straightforward way of
having possession of something. The thing here is in your pockets or a bag that
one is actually carrying. It should be mentioned that custody and possession are
close terms: the one is a species of the latter.
(b) A person is also said to be in possession of a thing when that thing is in the
possession of another person and that other person possesses the thing for the use
or benefit of the first person. For instance, X gives Y a book to keep for him
whilst he is away. X will be said to be in possession of that book.
(c) A person is also said to be in possession of a thing when he keeps it in any place
(whether that place belongs to him or not) for his own benefit or use. This means
91
that a person who puts a luggage in a boot of a car he has been offered a ride will
be said to be in possession of the luggage even if the car does not belong to him.
(d) Lastly, a person will be said to be in possession of a thing that is in the

possession of another and that other has the possession with his knowledge and
consent. 106
This was the case in Mpondamwala and Others v Republic1 whose
facts can be concisely stated as follows:
Knowledge is crucial in cases of possession. Courts have followed English

authorities on the point. In Zulu v Republic107 the High Court quoted with approval a
statement by Lord Justice Parker CJ in the English case of Lockyer v Gibb108 that: In
my judgment, before one comes to consider the necessity for mens rea, or as it is
something said, whether the regulation imposed an absolute liability, it is of course
necessary to consider possession itself. In my judgment, it is quite clear that a person
cannot be said to be in possession of some article which he or she does not realize is,
for example, is in her handbag, in her room, or in some other place over which she has
control. That I should have thought elementary; if something were slipped into your
basket and you had not the vaguest notion it was there at all you could not possibly be
said to be in possession of it.
However, authorities suggest that actual knowledge is not necessary. In the Zulu v
Republic as well as in Fachi v Republic109 the High Court inferred knowledge on the
part of the appellants from the facts of the cases.
In Watel Patel v Republic110 the conviction of the appellant for the offence of
possession of a prohibited weapon contrary to section 16 (1) (a) 111 of the Firearms
Act112 was upheld by the High Court even though it was not proved that the appellant
had at any point in time physical possession of a firearm. However, the court held that
the mere fact that the accused person saw and knew about the existence of the firearm
106 MLR 306
107 [1992] 15 MLR 496
108 [1967] 2 QB 248
109 [1992] 15 MLR 144
110 (HC) Criminal Appeal No 267 of 2005 (Unreported)
111
112 Chapter 14:01 of the Laws of Malawi
92
and knew that it was a prohibited weapon and knew under what circumstances the gun
meant that he possessed the gun under the spirit of section 4 of the Penal Code.
III. Omissions
There are offences in the Malawian penal statute whose actus reus takes the form
of a passive failure to act or, in other words, an omission. An omission may result in
the imposition of criminal liability in two situations: in the first situation, the law
prohibits failure to act in itself, without more. In the Penal Code the offence in section
39 provides the best example of an offence whose prohibited conduct takes the form of
an omission to act per se. The section provides as follows:
Any person who –

(e) …
(f) knowing that any person intends to commits treason, does not give information
thereof with all reasonable dispatch to the president, an administrative officer,
magistrate, or officer of police or use other reasonable endeavors to prevent the
commission of the offence,
shall be guilty of felony termed misprision of treason and liable to imprisonment

for life.
The prohibited act of the offence in section 39 of the Code consists of a failure to
report or prevent a felony in itself.
A similar offence can be found in sections 123113, 164114, 165115 and 166116 of the
113 Section 123 of the Penal Code provides as follows:
Everyone who wilfully disobeys any Act by doing any act which it forbids or omitting
to be any act which it requires to be done and which concerns the public or any part of the
public shall be guilty of a misdemeanour and shall be liable…to imprisonment for two years.
114 Section 164 provides as follows:
Any person who being the parent, guardian or other person having the lawful care or a
charge under the age of fourteen years, and being able to maintain such child wilfully and
without lawful and reasonable cause disserts the child and leaves it without means of support
shall be guilty of a misdemeanour.
115 Section 165 reads:
93
Penal Code that criminalizes failure to perform a duty imposed by an Act of
Parliament, desertion of children, negligence to provide food for child respectively.
The section does not impose a duty to act but rather it criminalizes failure to act in
itself.
The offence should be contrasted with the offences in sections 218 to 222 of the
Penal Code. For the purposes of our discussion, one has to contrast the wording of
section 39 to that of section 219 that provides as follows:
It is the duty of every person who, as head of the family, has charge of a child
under the age of fourteen years, being a member of his household, to provide the
necessaries of life for such child; and he is held to have caused any consequences
which result to the life or health of the child by reason of any omission to
perform that duty, whether the child is helpless or not.
The difference in approach between the offences in sections 39 and 219 quoted above
is that in the later a duty is specifically imposed on a particular person (i.e., a head of a
family) to act (i.e., to provide necessaries of life to a child under the age of fourteen
who is a member of his or her household). A person who does not qualify as a head of
a family (for instance a neighbor) has no corresponding duty and will not be held
liable for failure to provide food to a child under the age of fourteen who is starving to
death. It should be remembered that there is no general duty to act under Malawian
law. In other words, the biblical duty on a ―neighbor‖ to act does not apply to
Malawian criminal law. As Lord Diplock said in reference to a similar position under
English law:
The conduct of the parabolical priest and Levite on the road to Jericho may have
been indeed deplorable, but English law (in our case Malawian law as well) has
not so far developed to the stage of treating it as criminal.
Any person who, being the parent or guardian or other person having the lawful care
or charge of any child of tender years and unable to provide for itself, refuses or neglects
(being able to do so) to provide sufficient food, clothes, bedding and other necessaries for
such child, so as thereby to injure the health of such child shall be guilty of a misdemeanour.
116 Section 166 reads:
94
Unlike the offence under section 39, criminal liability under the offences in sections
218 – 222 invariably depend on the existence of a duty to act. We not turn to examine
how criminal liability will be imposed in this type of offences.
Any person who, being legally liable either as master or mistress to provide for any
apprentice or servant necessary food, clothing or lodging, wilfully and without lawful excuse
refuses or neglects to provide the same or unlawfully or maliciously does or causes to be done
any bodily harm to such apprentice or servant so that the life of such apprentice or servant is
endangered or that his health has been or is likely to be permanently injured shall be guilty
of a misdemeanour.
(a) Duty to Act

As stated earlier, as a matter of general principle, there is no general duty, either
under statutory law or at common law, to act or to meet a particular standard. This is
so because as a matter of policy, if the law was to impose such a duty it would have
inhibitive effect on the rights and freedoms of the people. It would have rendered
every citizen under a perpetual burden to be on the look out for those in need of
assistance. The biblical definition of a ―neighbor‖ has not yet found its way into the
criminal laws of many jurisdictions including that of Malawi. However morally
reprehensible certain failures to act may have, unless the law specifically imposes a
duty to act, failure to act on its own will not attract criminal liability. Here one can
think of the following cases: a fully grown and able man watching an infant drowning
in a shallow pond where he could have rescued him or her without putting his or her
life in any danger; a person who fails to prevent a crime when he could have done so
without putting his life or limb in any danger; or a case of a person who fails to warn a
victim of a murder through poisoning when the former saw the cup being poisoned.
These cases may be considered morally wrong by persons of certain religious or moral
sheds but since the law does not impose a duty upon these persons to act, whatever
they do is not criminally wrong.
Under what circumstances, then, does the law saddle someone with criminal
liability for omissions? The unlawfulness of an omission depends on whether or not
the law has, firstly, imposed upon someone a duty to act and, secondly, whether the
95
person has actually fallen short of the duty imposed. Under Malawian law, duties have
been imposed in the following cases:
i. Where there is a special relationship ii. Where

responsibility has been assumed iii. Where a duty
has been assumed by contract iv. Where a duty is
imposed by statute or common law
Both statutory law and common law may impose duties to act and failure to
perform such a duty may attract criminal liability. Section 121 of the Penal Code
provides for the general offence of neglect of official duty by public officers. The
section read as follows:
Every person employed in the public service who willfully neglects to perform
any duty which he is bound either by common law or by Act to perform,
provided that the discharge of such duty is not attended with greater danger than
a man of ordinary firmness or activity may be expected to encounter, shall be
guilty of a misdemeanor.
There are a myriad duties imposed on public servants by both the common law and
Acts of Parliament.
v. Where the defendant has created a dangerous situation

(b) Performance of a duty
(c) Distinguishing positive acts and omission
(d) Omission and causation
F. CAUSATION
I. Introduction
Sometimes crimes are classified as ―conduct crimes‖ and ―result crimes.‖ In
the case of the first class of offences, the prohibited conduct consists of a specific act
or conduct. Examples of conduct crimes include rape (sexual intercourse with a
woman against her consent) or theft (taking without permission) or robbery. Examples
of result crimes include murder (where the prohibited conduct consist of causing death
of another person) or arson (where the actus reus takes the form of causing fire.) For
result crimes the law targets a specific ―result‖ of some conduct. For both murder and
96
arson, it is the fact of bring about a particular result, death and fire respectively which
is the focus of their relevant criminalizing provisions. For result crimes, crucial to the
imposition of criminal liability is the establishment of a causal link between the
accused person‘s conduct and a particular result. For murder, it must be established
that the accused person‘s conduct caused the death of another person. For these crimes
the concept of causation assumes fundamental importance.
In the majority of result crimes which come before courts of law, the question
whether the accused person‘s conduct or act actually caused the prohibited result does
not present much problems. And in some case, it is assumed as a matter of course from
the facts before the court. For instance, if X shots Y in the head and Y dies
immediately it will be concluded as a matter of course that X caused the death of Y.
The most unfortunate thing for Malawi is that the investigating authorities lack
the same expertise, both human, monetary or equipment, to conduct investigation with
the same level of sophistication as in other countries. For most of murder cases, there
is virtually no forensic evidence. All that is placed before the jury is verbal testimony
of witnesses testifying that they saw X beating Y who later died. The only pathologist
in Malawi cannot attend to all murder cases most of which happen in remote areas of
the country. If there are no funds to prosecute murder suspects it would be too
presumptuous to expect that there will be funds to undertake reliable investigations.
Despite this, there are some cases where the issue of causation may assume
paramount importance. It therefore requires specific discussion here.
II. Causation in law

The issue of causation mostly arises in both criminal law and the law of tort. As
far as criminal law is concerned, causation is one of the most basic (unfortunately also
difficult) requirement of criminal liability. The reasons for requiring that before
criminal liability is imposed it must be shown that there is a causal link between the
conduct of the accused person and the prohibited result has been traced to the very
principle of individual autonomy.117 The principle of individual autonomy proceeds on
the assumption that individuals are capable of choosing their own acts or omissions.
And if the law respects individuals as capable of making rational choices, then at the
very least they must be held responsible for the normal consequences of their
117 Ashworth at p. 119
97
behavior. In follows that respect for individual autonomy and responsibility for
consequences of conduct are two sides of the same coin.
Having said this, when is a person said to have caused a result under Malawian
law? In most cases, the issue of causation in treated as tangential to the legal enquiry
largely because the facts do not put the question in issue. The evidence will point to
the fact that X stabbed Y on the chest and Y died from internal bleeding a few minutes
later. The court will not consider whether indeed it was the stabbing that caused the
internal breeding because causation is considered as inescapable from the facts of the
case. However, not infrequent are cases where the question whether the conduct of the
accused person really caused a result. For example, in the case of murder X stabs Y on
the chest. Y is admitted to hospital and the wound is infected due to the negligence of
the medical personnel and Y dies of complications arising out of the infection, can X
be held liable for the death of Y? It is cases like these where there are intervening
factors that cause the most pernicious difficulties in theorizing and application of the
principle of causation in criminal law.
III. The „but for test”

In the latter part of the nineteenth century, jurists attempted to formulate a
general rule for the determining whether a certain act was the cause of a particular
result. The dominant rule that emerged and was generally accepted was the condition
sine quo non test or the ―but for test‖. According to this rule, an act is a cause of a
result if, ―but for‖ the act, the result would not have occurred. This rule acknowledges
that the occurrence of a particular result or situation may be influenced by many
factors each contributing to the ultimate occurrence of the result. However, an act will
be said to be a cause of the result if without it the result would not have occurred. For
example, if X stabs Y with a knife and kills him, it is not only the stabbing that might
contributed to the death, but also he manufacturer of the knife, its sale by a
shopkeeper, and so forth. Even negative factors or antecedents will be causes of the
result.
Traceable from the English common law, the principle is a central feature of
Malawian civil and criminal law today. Whilst this explanation may appear simple if
considered against the backdrop of real life situations it becomes clear that for every
conduct there may be a number of ―but for‖ causes of a result. Consider a case of a
person who sends his domestic worker late at night to fetch something a distance from
98
home. Well known by the employer, thieves marauds the area. The person is killed a
few meters from the house. It is clear that the criminals who killed the poor worker
caused the death. But what about the employer who sent him out certain that he may
be killed? What about the parents of the worker who many years earlier had
intercourse that conceived the boy when they knew that they couldn‘t take case of the
children and resulting into the child seeking out employment as a domestic worker? It
would be seen that there is conduct of many people in the past that have a bearing on
the death of the worker in this particular case. And the question is: are they all
criminally liable for the death just because ―but for‖ their conduct or omissions the
poor worker wouldn‘t have found himself in the situation of walking at night in an
area where murderous criminals roam free? An answer to this question stems from the
principle of individual autonomy mentioned earlier.
What about those cases where there are intervening factors either natural or those
of third parties? As a matter of general principle, Malawian criminal law recognizes
concurrent causation and the detailed principles governing cases where there are
intervening factors between the conduct of the accused person and a prohibited result
emanate from English common law. Three cases can be considered here.
i. Intervening voluntary human act

It is possible to have intervening acts of third parties acting rationally and
unconnected to the actions of the accused person. This may occur where A stabs B
inflicting such wounds such that the later would have died a few minutes later. C,
unconnected to A finds B laying down and for reasons best knows to himself shots B
and B dies of the gunshot wounds instantly. Is A guilty of the murder of C? The
answer is negative. The law will take the voluntary actions of C as having terminated
the causal link between A‘s act of stabbing and the death. The principle that emerges
here is that voluntary act of a third party acts as a barrier in any causal enquiry in
criminal law. The last voluntary human conduct is considered as a cause of a result. In
the example given above, the last voluntary human conduct that caused death is that of
C‘s shooting. It liberates A from the charge and conviction of murder though he will
still be charged with causing grievous bodily harm and/or attempted murder. In short
the law does not review the whole situation but looks at the last human conduct.
ii. Intervening acts of third parties acting in desperation
99
The result would be different if the intervening act of the third party is
involuntary. Consider the case where A beats B unconscious. Onlookers mistakenly
believing B to be dead carry the body to the hospital. But because they carried the
body in a plastic bag, B died of suffocation. Is A criminally liable for the death of B in
light of the involuntary intervening acts that cause death? The law provides that where
an intervening act of the third party is involuntary, the chain of causation will not be
broken. On the case given above, the intervening acts of the onlookers qualify as
involuntary and will not break the chain of causation. A will be held criminally liable
for B‘s death. The same result will be reached where a person uses an infant, an
innocent agent or mentally deranged person.
iii. Intervening acts of necessity or duty

The same result will be reached where the intervening act is one of compulsion,
necessity or duty. If X compels Y to bring about a prohibited result, then X will be
held as the legal cause of the result. In the same way, if a person creates a situation of
necessity, or where he creates a situation which imposes a duty on third parties to act
and, whilst acting in response to the necessity or the duty a prohibited result is brought
about, X will be said to have occurred. A case that best illustrates cases of necessity or
duty is that of Pagett. The accused person was being pursued by the police and he took
his pregnant girlfriend as a hostage and used her as a human shield. He started firing at
the police who responded by firing back shooting the girlfriend to death. Even though
the killing shot was fired by the police, the accused person was held liable for the
death of girlfriend and convicted of manslaughter.
iv. Intervening acts of providence
v. Intervening acts or condition of the victim

Consider the case of a person with a special condition which makes him or her
especially vulnerable. The usual example often cited is that of a person with an
unusually ―thin skull‖ that crushes after being hit on the head but the same blow
wouldn‘t have had any grievous effects on a person with a normal skull. And the
question is should the person who hits and kills a person with such a thin skull be said
to have caused the death of the person? To put in another way, will the special
condition of the victim be said to have broken the chain of causation? It is not difficult
100
to think of real life situations where people with special medical or physiological
conditions who would be injured in circumstances where a normal person wouldn‘t.
The approach of Malawian criminal law follows that of the English common law.
The English common law responded to this question by developing what has been
termed the ―thin skull principle‖ which holds that defendants must take their victims
as they find them. This will mean that if X assaults B on the head and B has a thin
skull as a result of which B dies of the assault but a person with a normal skull
wouldn‘t have died, X will be said to have caused the death of B. The law says he
must take his victim as he finds him. However, for practical purposes the principle will
have little effect particularly for those offences requiring proof of mens rea. Whilst it
will be possible to establish that X caused the death, it will not be possible to prove
that he caused the death with the required mental element for the offence of murder.
The thin skull principle applies to cases where the victim had a condition before
the encounter with the accused person. What about those cases where the victim acts
in a certain way after the accused person has committed the prohibited act? For
example, B stabs C but the wound cannot be said to be fatal. However, C refuses any
medical help claiming that his or her religious beliefs do not allow him to accept any
western medical treatment. As a result, the wound gets an infection that proves fatal.
Should B be held liable for the death of C? Again Malawian criminal law follows the
heels of the English common law which holds that as long as the actions of the victims
are ―reasonable foreseeable‖
G. THE CONCEPT OF UNLAWFULNESS

I. Introduction
The mere fact that an accused person has done the prohibited act or brought
about the prohibited result even with the required mental element does not mean that
the person who did the act is criminally liable. The next stage of the enquiry is to
determine that the act is also unlawful or without any lawful justification or excuse. In
other words the actus must be reus. The term unlawful does appear in many of the
definitions of offences in the Penal Code. What this means is that the mere fact an act
corresponds to the description of the prohibition does not necessarily attract criminal
liability. For instance, section 132 describes the prohibited act as consisting in
―…unlawful carnal knowledge of a woman or girl, or without her consent…‖ Merely

having sexual intercourse with a girl or woman without her consent with the requisite
101
mental element for the offence will therefore not make one liable for the offence of
rape. It is necessary that the intercourse must be ―unlawful.‖ In the same way, murder
is defined by section 209 of the Penal Code as causing death of another person by
―unlawful act or omission‖ with malice aforethought. But the mere fact that a person
has caused the death of another person with malice aforethought will not make one
liable for murder. The causing of death must also be unlawful. A person who kills
another with the necessary malice aforethought but whilst acting in self-defence will
not be guilty of murder: self-defence is a lawful excuse for the causing of the death. If
one goes through Malawian penal statutes one comes across numerous provisions
where the concept of unlawfulness appears. A final example one can cite is that of
arson. Section 337 defines arson as wilful and unlawful setting fire to, inter alia, a
building. Merely setting fire to one‘s own house will not on its own render the act
criminal. The setting fire need to be unlawful as well. Apart from the term
―unlawful‖, other terms used include without reasonable cause (s. 164) without lawful
excuse (s. 166)
II. When is conduct unlawful

Section 132 of the Code criminalizes ―unlawful carnal knowledge with a
woman or girl‖ without her consent. When is carnal knowledge ―unlawful‖? Section
137 criminalizes ―unlawful‖ assault of a female. When is an assault of a female

―unlawful‖? The same question can be asked in respect of many other offences where
the term is used. And this begs the question: is there a general material content of
unlawfulness applicable to all offences or each and every term has to be decided on its
own right? The question has never been decided in Malawi. However, courts of law
have defined unb
It is generally accepted that there is a fundamental difference between Conduct

will be regarded as unlawful in the following instances:
I. Conduct contravening statutory law

The obvious case where conduct will be said to be unlawful is when it is contrary
to statutory law. Section 209 defines murder as Ll kk
II. Conduct contrary to common law

III. Conduct contrary to customary law
102
IV. Conduct contrary to
V. Other grounds of justification
Conduct will be said to be unlawful when it is in conflict with statutory law, the
common law or, indeed, customary law. Though never decided by our courts, one can
submit that conduct would be regarded as unlawful when it is in conflict with the legal
order as a whole, and not just with the particular legal provision which created the
crime.
III. Unlawfulness and actus reus

Unlawfulness presupposes that the conduct of the accused person corresponds to
the description of the prohibition. The first step therefore requires a determination that
the accused person committed the prohibited act and, then, one must decide whether
the act is unlawful or without any reasonable excuse.
IV. Unlawfulness and mens rea

Unlawfulness and mens rea should not be confused. Unlawfulness means that
there is a disharmony between an act that corresponds with the description of the
prohibition and the law. In other words and as discussed above, the conduct must
involve an infringement of the fundamental rights guaranteed in the Constitution or
must be a violation of statutory law, common law or, indeed, customary law. When
deciding whether an act is unlawful or not an objective standard is applied since the
law is objective. An act will be declared to be unlawful without considering the
individual circumstance of the accused person and without differentiating between
children, adults, mentally disordered people, mentally healthy people, and so forth. All
acts which are contrary to the objective content of the law will be declared to be
unlawful. This means that an act of a person who is legally insane will be declared to
be unlawful if it is contrary to the law. It is only when one comes to the question of
mens rea that individual circumstance of the accused person become relevant. In short,
unlawfulness is an evaluation of the act whereas mens rea is an evaluation of the
perpetrator.
V. Unlawfulness and negligence

The test of unlawfulness should not be confused with the test of negligence.
Consider the following facts: a person driving a vehicle at high speed above a legal
103
speed limit through a busy township. He knocks down and kills a child. If one applies
the test of unlawfulness, the act of driving at a high speed above a legal speed limit
renders the act as unlawful. On the other hand, the conduct of driving at high speed
through a busy township is equally negligent. What this means is that the same
circumstance satisfies the test of unlawfulness and negligence.
However, even though sometimes the two tests may lead to the same results, the
two are different and sometimes they may lead to different results. The test of
unlawfulness has a diagnostic character: the facts are examined in light of the law so
as to determine whether there has been a violation of the law. On the other hand, the
test of negligence has a prognostic character: it uses the test of a fictitious reasonable
man who is placed in the position of the accused person and it must then be asked
whether he would have foreseen the possibility that the act might have produced the
prohibited result and whether he would have been able to prevent that result. For this
reason, a motorist who is being chased by robbers and hits a person will be said to
have been acting unlawfully (because he was driving above the legal speed limit) but
can not be said to have been driving negligently because a reasonable person would
have acted in the manner he did.
104
CHAPTER EIGHT
THE MENTAL ELEMENT OF A CRIME (MENS REA)
I. INTRODUCTION
Most people will accept the propriety of differentiating between harm
intentionally inflicted and harm caused by accident. Not infrequently one meets such
excuses as: ―I didn‘t do it deliberately‖ or ―it was not my intention.‖ Imbedded deep
in such excuses is the fact that harm accidentally inflicted, however serious, should not
be met with the same level of condemnation as when harm is deliberately inflicted.
Criminal law follows the same approach and holds that the mere fact that a person has
committed an act which corresponds to the description of the prohibition is not
sufficient to qualify one as criminally liable. That which is demanded into the criminal
equation before criminally liability can be imputed on an individual apart from actus
reus us called mens rea.
In almost all jurisdictions that follow the Anglo-American legal tradition

blameworthiness (as will be defined below) is a prerequisite for the imposition of
criminal liability. In other words, in addition to an unlawful act be committed by an
accused person, before criminal liability is imposed it must be established that the
accused person committed the unlawful act with a required mental condition. The
required mental condition is mostly specified in the provision defining the offence.
As a matter of fact, the requirement of a blameworthy mind before criminal

liability is imposed is listed as one of the fundamental rule of criminal liability in the
Penal Code. Section 9 of the Code provides in part as follows:
105
Subject to the express provisions of this Code relating to negligent acts and
omissions, a person is not criminally responsible for an act or omission which
occurs independently of the exercise of his will, or for an event which occurs by
accident…118
II. TERMINOLOGY
The concept of mens rea is one which most people embarking upon a study of
criminal law often find not readily understandable. The Latin phrase mens rea comes
from a Latin maxim actus non facit reum, nisi mens sit rea which can be freely
translated as meaning: an act is not punishable unless the perpetrator‘s mind is
blameworthy. Most English criminal law text books refer to this requirement for
blameworthiness as mens rea. The fact that the Latin maxim is preferred to an English
term reveals how it is difficult to provide a simple English term for this requirement. It
should therefore be mentioned at the very outset that mens rea is a technical term. It is
sometimes referred to as ―a guilty mind‖ or ―fault.‖ But as will be seen below, even
terms such as guilty mind or fault are more complicated and mean something more
than they are used in common parlance. It will be seen that a person can be said to
have acted with mens re and hence be guilty of a crime even when a person never
intended to commit the crime but merely failed to apply his mind to the obvious: or
what is called negligence.
Section 9 of the Penal Code does not use that expression. What the section does
is to differentiate between acts willfully done and acts accidentally done. One
important observation to be made about the wording of section 9 is that is places much
emphasis on the ―will‖ of the accused person. In other words, a person should be
criminally responsible for all acts or omissions willfully done by the accused person
and no criminal responsibility should be imposed where an act or omission occurs by
accident or when it was not willed by the accused person. In Republic v
Metani1 it was held that the term ―willfully‖ as used in section 337 of the Penal Code
means acting intentionally and not accidentally or involuntarily. Though said in
reference to the use of the term in section 337 of the Penal Code, it is submitted that
the same applies to the use of the term in other provisions of the Code and other penal
statutes in Malawi.
118 See Osman v R, (1964 – 66) ALR Mal. 595
106
By placing emphasis on the ―will‖ of the accused person, Malawian criminal
law subscribes to the psychological concept of mens rea as involving a mental attitude
or state of mind. This concept of mens rea is subjective; it has to be decided whether
the accused person actually intended to do the prohibited act or bring about the
prohibited result. An enquiry into whether a person had the requisite mental element
for a crime requires the court to determine the direction of his will. In this conception
1
7 MLR 341
of mens rea knowledge or an awareness of circumstances which bring the conduct
within the ambit of the description of the prohibition and render it unlawful forms a
part of mens rea.
But just as is the case with English law, Malawian law also recognizes other
forms of mens rea, negligence and recklessness. These two forms of mens rea
represent a departure from the subjective test because they usually employ an
objective test of a reasonable man.
III. FORMS OF MENS REA

Malawian law recognizes three forms of mens rea, namely, intention, negligence
and recklessness. Intention is considered the most blameworthy state of mind followed
by negligence and with recklessness as the least.
IV. MENS REA AND THE PRINCIPLE OF INDIVIDUAL AUTONOMY

Requiring that criminal responsibility should not be imposed unless the person
has done the act or brought about the prohibited result willfully presupposes that a
man is free to choose whether to engage in a particular form of conduct. This is
exactly the central tenet of the principle of individual autonomy. The principle of
individual autonomy rejects the deterministic approach to human behavior: an
approach that states that a man‘s actions are predetermined by, for example, his
genetic and biological make-up, or by the social, economic or even climatic milieu in
which he grew up. On the contrary, the principle of individual autonomy proceeds on
the basis that, human beings in general have the capacity and sufficient free will to
make choices. A thorough discussion of this principle is beyond this book. However,
suffice to mention that the autonomy argument and the determinist argument have
raged for some time. There is an immense literature on these theories. Further, the
107
principle of autonomy states that individuals should be respected and treated as agents
capable of choosing their actions and omissions and that denying people the freedom
to choose their actions is a denial of their very personhood. And if indeed people‘s
choices have to be respected, then they have to be held responsible for their actions as
well. For that reason, once it is established that a person (who is regarded as an agent
of his free will) does something, he will be held liable for his actions by the law.
To what extent Malawian criminal law should reflect the social, economic,
political and climatic conditions in which Malawians live in is a question that require
special consideration. This is more so in those area where the English based criminal
law contradicts the cultural or traditional beliefs of the people. And this is more
marked in respect of the belief in witchcraft and the Witchcraft Act. A person who
believes in the existence of witchcraft and accuses another of being a witch or
professes to have powers of a witch, conduct that constitutes offences under sections
4119 and 6120 respectively of the Witchcraft Act121122, does such a person really chooses
to believe in witchcraft or is it a product of the social environment in which the person
grows up? To what extent does free will play on that person? The facts of the case of
Ngwira v Republic4 clearly demonstrate the disharmony between the law and social
reality of the majority of Malawians. There are many other areas where conduct of
people is greatly influenced by cultural or traditional belief system in which they grew
in.
119 Section 4 of the Witchcraft Act provides as follows;
Any person who, otherwise than laying information before a court, a police officer, a
chief, or other proper authority, accuses any person with being a witch or with practicing
witchcraft or names or indicates any person as being a witch or wizard shall be liable to a
fine…and to imprisonment to five years.
120 Section 6 of the Witchcraft Act reads as follows:
Any person who by his statements or actions represents himself to be a wizard or
witch or as having or exercising power of witchcraft shall be liable to a fine…and
imprisonment for ten years.
122 MLR 292
108
Whilst acknowledging that one of the important functions of the law is actually
to protect the people from even cultural beliefs that are inimical to the full and equal
enjoyment of fundamental human rights guaranteed in the Constitution and protect
public order and peace, there is a need to approach matters involving cultural beliefs
with much circumspection. In my opinion, in matters of this kind, the answer might
lay somewhere between an absolutely deterministic approach and autonomy approach.
Although a person is influenced by, among other things, social environment in which
he grew up, he is also able to control and direct himself in such a way that his daily
conduct conforms to the norms of the society. In this way, even a person who has
grown in a community where everyone believes in the existence of the powers of
witchcraft this does not mean that such a person can go about accusing everyone of
witchcraft. On the other hand, for the purposes of criminal law, in should be possible
as well to say that in the particular social circumstances in which a person grew up a
person behaves reasonably or not.
V. THE ESSENCE OF THE PRINCIPLE OF MENS REA

What then does mens rea mean? The essence of the principle of mens rea is that
people should be held criminally liable for their conduct or consequences when they
acted intending to do what they did or bring about a prohibited result or knowingly
risked doing or bringing about a result. The principle gives expression to the principle
of autonomy discussed earlier. As discussed above, the principle of autonomy
proceeds on the assumption that people are capable of making rational choices and
then requires the society to respect choices that people make. It follows that if a person
made a choice to act in a certain way or bring about a particular result then they should
be held responsible for those actions or that particular result. As a corollary, if a person
was deprived of the capacity to make a rational choice, either through disease or
because was not aware of certain facts, then they should not be made criminally liable
for their actions.
But apart from the principle of autonomy, the principle of mens rea can also be
explained on some of the theories of punishment discussed above. The first such
theory is that of deterrence. If we accept that one of the functions of criminal
punishments is to deter people from committing crimes, that function would have been
defeated if people were punished even if they did what they did or brought about a
result by pure accident or could not reasonable foresee a particular result. People
109
would have been less careful to avoid committing crimes because they would have
known that what separates them from imprisonment was nothing but mere chance. The
same can be said of the theory of reformation. It should be remembered that the theory
of reformation require that the focus of criminal punishment is to reform offenders.
And it does so by, among other things, help them understand the difference between
right and wrong and act accordingly. The theory of reformation cannot apply to a
person who does a prohibited act or brings about a prohibited result by accident. Even
those who know the difference between right or wrong can still make mistake or fail to
avoid that which is not reasonably foreseeable.
VI. MENS REA AND UNLAWFULNESS DISTINGUISHED

As stated above1, there is a need to draw a clear distinction between the concept
of unlawfulness and that of mens rea. Unlawfulness attaches to actus reus which is
separate from mens rea. In any legal enquiry therefore, it is necessary to establish
whether the prohibited act has been committed or the prohibited result has been
brought about. It this is established, the second level of the enquiry must establish
whether it is unlawful. If it is establish that it is unlawful then one must examine
whether the person acted with a guilty mind. So whilst the concept of unlawful
represents a ―legal‖ connection between the perpetrator and the law, the concept of
mens rea provides a ―psychological‖ relationship between the perpetrator and the act.
One may ask, in what circumstances can it be said that a person acted unlawfully but
without a guilty mind?
VII. THE PRINCIPLE OF CONTEMPORANEITY

The principle of contemporaneity requires that before a person is convicted of
having committed a crime that has mens rea as an element, the actus reus and the
mens rea must be contemporaneous, that is to say, they must coincide in point of time.
No crime will be committed if the actus reus and the mens rea don‘t coincide in point
of time. Consider the case of a driver who accidentally kills a person and later, having
realized that the person he accidentally killed is actually his enemy, expresses joy and
shows no remorse. By causing the death, the actus reus for murder was committed,
however, at the time of committing the prohibited act the person had no mens rea. The
person cannot be convicted of murder because the actus reus and mens rea don‘t
coincide. For the same reason, a person will not be guilty of murder if, whilst he is
110
driving to M‘s house in order to kill him there, he accidentally runs over somebody,
and it later transpires that the deceased is actually M. The actus rues and mens rea
don‘t coincide in this case.
The reason why criminal law insist on coincidence between actus reus and mens
rea is that the function of criminal law is not to judge a person‘s general character or
behavior over a period of time; its only concern is the particular criminal conduct
charged. So what matters most to criminal law is whether the prohibited act was done
with the required mental element at the time when the prohibited act was actually
done.
Complex, however, are cases of continuing acts. Consider the case of a person
who, through an honest mistake, takes another person‘s luggage mistaking it to that of
his own. Later he realizes his mistake and, instead of returning the luggage, to the
rightful owner decides to keep the luggage. Is the person guilty of the offence of theft?
It is clear that at the time of taking the luggage the actus rues for the offence of theft
was committed. However, at that time the persons had no mens rea for the offence of
theft i.e., an intention to permanently deprive the real owner of the luggage. At that
time the offence of theft had not been committed. But at the time when the person
realizes his mistake and decides to keep the luggage, the legal nature of taking changes
completely. Since the taking is a continuous act, when he formed an intention to keep
the luggage he acquires a mental element for the offence of theft and will be held
criminally liable for that offence and not at the first time when he took the luggage.
What if the person had realised his mistake after he had sold the luggage and spent the
money? In that case the person would not be guilty of the offence of theft since the
taking was terminated after disposing of the luggage and, even if he concludes that he
wouldn‘t have returned the luggage to the owner if he still had it, the offence of theft
will not be said to have been committed.
English cases of Fagan v Metropolitan Police Commissioner123, R v Miller124,
123 [1969] 1 Q.B. 439; [1968] 1 W.L.R. 1120
124
111
Thabo Melli v R125 and Attorney General’s Reference (No. 4 of 1980)126 provides
spectacular examples of the application of the issues discussed above.
VIII. MENS REA AND CRIMINAL RESPONSIBILITY

‗Criminal responsibility‘ is a very important expression in any discussion of
mens rea. As a matter of fact, section 9 of the Penal Code uses that expression. There
is a very important relationship between mens rea and criminal responsibility.
Criminal responsibility relates to the mental state of the accused person at the time of
the commission of an offence. There is a difference between criminal responsibility
and criminal liability. Criminal liability implies that all the requirements for the crime
are complied with and that the accused person is guilty as charged. It means that the
accused person has committed the prohibited act, and that the requirements of
unlawfulness are complied with and that he has acted with the requisite mental
element. On the other hand, criminal responsibility has a much narrower meaning. It
refers only to the mental state of the accused person: in other words, it forms part of
mens rea. This explains why section 9 uses the expression ‗criminal responsibility‘
rather than criminal liability.
It is this narrower meaning of the expression that explains the wording of section
14 of the Penal Code that excludes criminal responsibility to person under the age of
seven years old. What this means is that a person of that age can commit the prohibited
conduct or bring about a prohibited result and can do so unlawfully but that the person
cannot do so with the required mental element. In other words, what section 14 of the
Code does is to create an irrebutable presumption that a person under the age of seven,
(in other words a person who has not completed his sixth year) cannot form a required
mental element for the commission of an offence. Under the same section, a person
above seven years but below twelve years of age is rebuttably presumed to lack
criminal responsibility. The onus is on the State to rebut the presumption by proving
that at the time of committing the prohibited act, omission or result the child ―had the
capacity to know that he ought not to do the act or make the omission.‖
Despite an increase in number of young people committing crimes, very few

cases have come before either the High Court of the Supreme Court of Appeal for one
to draw conclusion as to how courts of law deal with determine the criminal
125 [1954] 1 W.L.R. 228; [1954] 1 All E.R. 373
126 [1981] 1 W.L.R. 705
112
responsibility of children between the ages of seven and twelve years of age. All that
section 14 of the Code requires is that the child must have ―a capacity to know that
he ought not to do the act or make the omission.‖ To require that it must be proved that
the child ―had capacity to know‖ can be interpreted as importing objectivity into the
process. In other words, it is not whether the child in fact knew but rather whether he
or she was capable of knowing. Here factors that would make the court conclude that
the child was capable of knowing would include the child‘s age, his or her intellectual
development, level of education, the people the child interacts with, etc. An eleven
year old boy who is in form three would be capable of knowing that stealing is
criminal than a child of the same age who comes from rural areas where literacy levels
are extremely low, has never gone to school and has low intellectual development,
Further, section 14 of the Penal Code requires that the child must have the
capacity ―to know that he ought not to do the act or make the omission.‖ The wording
of the section requires knowledge on the part of the child about the wrongfulness of
the conduct and, most importantly, the fact that it is forbidden or wrongful to do the
act or make the omission. It should be noted that children tend to copy what they see
adults doing. A child may know that uttering obscene language is somehow wrongful
but when she or he sees the majority of people in the community engaging in the
behavior may form an impression that, even though the act is wrongful, it is okay to do
it. For this reason, it is important that the child must appreciate the fact that the
conduct is prohibited: that ―he ought not to do the act or make the omission.‖
But young people tend to act impulsively or are influenced by older children or
adults and, for that reason, are less able than normal adults to resist evil influence. An
eleven year child who knows that beating someone is forbidden may easily be
influenced by a group assaulting a thief. He or she may easily take a stone and throw
at the thief. A fully grown up person with the same knowledge as a child would think
twice before joining in the mob justice. For this reasons, I propose that there is an
additional requirement that the child must be able to conduct himself in accordance
with the knowledge that the conduct is prohibited. In conclusion, it is submitted that
the test that ought to be applied is whether the child is objectively capable (a) of
appreciating the fact that the conduct is actually forbidden (b) conducting himself or
herself in accordance with the appreciation in (a).
Section 14 provides that all the child must know is that ―he ought not to do the
act or make the omission.‖ It is not clear what this exactly means: should the child
113
know that the act or omission is prohibited morally, legally or that his or her parents
forbid it? If a child knows that the conduct or omission is prohibited by law, there can
be no doubt that the test is applied. What if the child merely knows that the conduct is
wrong and can‘t pinpoint why it is wrong or which system forbids that conduct? From
the wording of section 14 all that is required is that the child should know that he or
she is required not to do the act or make the omission. Nothing else is to be proved and
the child need not know whether it‘s the law or culture or god that forbids the conduct.
It should be remembered that a child may, under the influence of bad friends or a bad
social environment, become so depraved that he no longer regards certain criminal acts
such as theft as immoral, although the child may know that such conduct is prohibited.
To pardon such a child merely because he doesn‘t know that the conduct is immoral
would mean that the more depraved the child is the freer he or she is of the operation
of the criminal law. It is submitted that all that ought to be proved is that the child had
the capacity to know that he is forbidden to do the act or make the omission.
IX. FORMS OF MENS REA

Malawian criminal law recognizes three forms of mens rea viz., intention,
negligence and recklessness. These forms of mens rea don‘t overlap and will,
therefore, be discussed separately.
A. INTENTION
(a) Introduction
The term intention is one that is often used in common speech than the other
terms used by criminal law to describe other forms of mens rea. It should therefore be
mentioned beforehand that the term as used in criminal law is one of legal art with
meanings extending far beyond the layman‘s understanding of the word. Intention
represents the worst the worst form of blameworthiness in the criminal calendar.
(b) The essence of intention

In our criminal law, intention may take three forms. But regardless of whatever
form intention takes, at the core of intention as used in Malawian criminal law are two
important elements: the first element is cognitive (or intellectual) and the second is
voluntative. The cognitive element consists of the defendant‘s knowledge of the
surrounding circumstances pertinent to a particular thing. On the other hand, the
114
voluntative element consists of directing ones will towards the doing of a particular act
or bringing about a particular result. The knowledge involved in the cognitive element
must be related to the act or result that the defendant wills on the voluntative element.
For instance, before a person can be convicted of theft, it must be established that he
or she knew the fact that the object in question does not belong to him and that it
belongs to another who has not given him the permission to take the object (the
cognitive element) and it must be his purpose or will or aim to take the object without
the authority of the owner and with the aim of permanently depriving the owner of the
thing. As a result, intention can be summarised as meaning to know and to will an act
or bring a result.
(c) Forms of intention

There are three different forms of intention as that term is understood in
AngloAmerican criminal law, namely, direct intention, indirect (or oblique) intention,
and dolus eventualis. In any crime where there is a need to prove intention, it is
enough if any one of the three is established as one operating at the time of the doing
of the prohibited act.
Direct Intention is said to have existed at the time of the commission of an

offence if the defendant directed his will towards the doing of a prohibited act or
bringing about the prohibited result. This meaning of intention comes closer to the
layman‘s use of the word. For instance, X takes a knife and stabs Y with the aim or
purpose of killing Y. X will be said to have acted with the direct intention of killing or
injuring Y. Under direct intention, the prohibited act or result is the main goal of the
defendant. In straightforward cases, this is the operative form of intention and it leaves
the court will little to discuss about the intention of the defendant and will proceed to
hold the defendant liable.
Indirect Intention: in indirect (or oblique) intention, the prohibited act is not the
direct aim of the defendant but that, considering the knowledge that the defendant had
at the time of doing the act, it was certain that the prohibited act will be done or the
result will be brought about. X, who is inside Y‘s house, sees a bird standing outside
the window of Y‘s house. Intending to kill the bird, X throws a stone that smashes the
window and kills the bird. His direct intention was not to smash the window but to kill
the bird. Can he be convicted of the offence of damaging property? The obvious
answer is yes. In indirect intention, the primary goal of the defendant is to do some act
115
but in order to do that act he will, as of necessity, commit the prohibited act or result.
In the example given above, even though the defendant did not intend to break the
window, the mere fact that the fact that breaking the window was inevitable, he will be
held to have indirectly intended to break the window and will be held criminally liable.
What this means is that a consequence is indirectly (or obliquely) intended if it is
certain though not desired by the defendant.
Constrictive intention: constructive intention is said to be present if a person

directs his or her will towards the doing of an act but foresees that if he wants to
achieve that which he or she wants to do there is a foreseeable possibility that a
prohibited result will be brought about. To use a factual example: X intending to burn
a house in which people are sleeping can be said to have foreseen that some or all of
the people sleeping in the house may be burnt to death and does ahead to set alight the
house. If any person dies, he will be held criminally responsible for the death. The
person is not deterred by the foreseeability of the death of any of the people sleeping
in the house. Constructive intention has two important elements: firstly, the defendant
must foresee the possibility of the prohibited result occurring and, secondly, the
defendant must reconcile himself to that possibility.
What differentiates between indirect intention and constructive intention is that

in the case of the one the occurrence of the prohibited result is certain whilst in the
other it is foreseeable. It is certain that if you through a stone through a window it will
break whilst it is foreseeable that if you burn a dwelling house with people insight one
or more people may be killed in the ensuing blaze.
(d) The subjective element of intention

When establishing the intention of the defendant, the principle is that a subjective
test, rather than an objective test, must be used. A criminal court must establish what
the state of mind of the accused person was at the time of committing the prohibited
act or result. So when deciding whether the defendant aimed at bring about a particular
result or was certain that the prohibited result will be brought about or whether he
foresaw the occurrence of the result, the question is not whether he should have aimed
or was certain or foresaw but whether he actually aimed or was certain or foresaw. It is
not a question of comparing the state of mind of the accused person to that of a
reasonable man (as is the case with negligence and which is objective) but a specific
116
finding of fact must be made as to what was the state of mind of the accused person at
the time of committing the act.
But direct evidence of a person‘s state of mind is seldom available and the
question is: how will the court determine the state of mind of the accused person?
Apart from those cases where an accused person makes a confession, courts of law
mostly rely on inferences drawn from the conduct of the defendant in deducing what
the intention of the accused person was. The court must consider all the relevant facts
of the case and must decide what the defendant must have intended or must have
foreseen. It be mentioned that in ordinary life experiences people act with different
intentions.
(e) Intention and motive

Liberal criminal law draws a distinction between intention and motive. If a
person steals medicine from a pharmacy so as to assist his or her sick mother, he will
be held criminally liable for the offence of theft. The motive for stealing the medicine
is to give his sick mother and is irrelevant to the determination of whether the person
is guilty of the offence of theft or not. As long as he or she acted with the intention of
stealing the medicine that is enough. In the same way, the mere fact that a person acted
with a bad motive does not make his conduct criminal.
(f) Intention and the elements of an offence

It is necessary that intention must relate to all elements of the offence. In other
words, the court must be satisfied that an accused person had an intention in respect of
all the elements of an offence. One therefore must have regard to the description of the
prohibition as contained in the statute and decide whether the defendant had the
requisite intention in respect of all the elements.
(g) Proof of intention

Direct evidence of a person‘s intention, such as evidence that just before a
person hit another he had shouted: ―I am going to kill you!‖ is seldom. It is indeed
rare to find a case where the accused person made clear his intention when doing the
prohibited act. Consequently, as a rule, a court has to determine the presence of
intention by means of inference drawn from the circumstances surrounding a person‘s
117
actions. And our courts of law use a presumption that every person intends the natural
and probable consequences of his acts. In terms of this presumption, a person‘s
intention is inferred from the objective consequences of his or her acts. This is a
rebuttable presumption of fact. A good example of a case where circumstances
surrounding the doing of an act cam lead the court to conclude intention is that of
Republic v I.K. Nkhonjera and D.A. Nkhonjera1 where the defendants were charged
with the offence of false representation ―with intent to deceive‖ contrary to section
1
12 MLR 106 (H.C.)
389 of the Penal Code. The facts of the case can be succinctly put as follows: the
second accused person wrote Junior Certificate Examination on behalf of his elder
brother, the first accused person, who has problems with his eye-sight. The court was
therefore required to establish whether the facts established ―intent to defraud.‖ In its
treatment of the question, the court inferred the presence or absence of the required
intent from the facts of the case. It was therefore concluded that ―where a person
obtains a certificate for another who did not actually sit the pertinent examinations‖
then there is an ―intent to defraud‖ and ―prospective employer who intends to
employ that person on the strength of the certificate so issued.‖ It should be observed
that the court discovered the ―intent to defraud‖ from the actions of the parties
themselves. The facts of the case of Republic v Yafete1 are somehow interesting: the
accused person and the complainant were friends. The accused person entered the
complainant‘s house at night through the door without the latter‘s consent or
knowledge. Not knowing whom it was, the complainant shouted ―thief‖ and the
accused person responded by running away. He was later apprehended by neighbors
who responded to the shout. He was charged with the offence of trespass under section
314 of the Penal Code. An essential element of the offence of trespass under section
314 of the Penal Code is that the accused person must ―enter into…property in the
possession of another with intent to commit an offence or to intimidate, insult or annoy
and person lawfully in possession of such property…‖ It was therefore necessary for
the prosecution to prove that the accused person entered the house with any of the
specified intents under the section. On his part, the accused person said that he had
gone to the house to repay the complainant some money which he owed her. From the
totality of the evidence, the court held that the intent had not been established.
118
The court took a subjective approach to the question of intent. It relied upon
the statements of the accused person himself and the fact that the accused person and
the complainant were friends. See also the case of Kajuma v Republic.2
There is a danger that the presumption undermines the subjective meaning of

intention discussed above. If the reasonable person in X‘s position could not have
foreseen the consequences, it is easy to infer that X also did not foresee the
1
7 MLR 209 (H.C.)
2
8 MLR 235 (H.C.)
consequences when, as a matter of fact, he did. We therefore propose that the law on
the point need to be changed and this presumption should be abandoned. The natural
and probable consequences of a person‘s act should merely be counted among the
factors which the court takes into consideration when it attempts to make the correct
inference about the presence of intention from all the evidence available.
B. NEGLIGENCE
(a) Introduction
Negligence is a second form of mens rea recognised by Malawian criminal law.
Generally speaking, the essence of negligence is failure to exercise a degree of care
expected of a reasonable person.
(b) The propriety of punishing negligent acts

The propriety of including other states of mind apart from intention has been a
subject contentious debate among jurists for quite a long period of time and where
animity is not in sight. One camp has reasoned that if negligence involves failure to
apply one‘s mind to what a fictitious reasonable man would have, then it is not fair to
punish a person for that. The person can not be said to be morally blameworthy, and
that to punish people for unintentional conduct does not really make them to be
careful. The other group has argued that the punishment of unintentional conduct but
which is done because of failure to meet a standard expected from reasonable
members of the society put most people on guard and make them to be careful. This
line of reasoning is supported by modern social and economic activity involving new
technologies which if not properly handled would cause a lot of harm to the society.
One need to think of modern transportation methods that require much care if no harm
is to be done to other members of the society.
119
Whatever a solution to the impasse is, it is clear that criminal law would have
seriously failed in protecting the society if it was to limit its sanctions only to conduct
intentionally done. In a society, there are certain standards of behavior and conduct
that must be met if the whole society is not to be reduced into anarchy. It therefore
becomes proper to hold people legally responsibly for failing to meet acceptable
standards of behavior. And if the need be, criminal sanctions can be used particularly
where the danger posed or the harm caused is great.
(c) Negligence as a form of mens rea

It is a fundamental principle of Malawian criminal law that a person is not to be
held ―criminally responsible for an act or omission which occurs independently of
the exercise of his will, or for an event which occurs by accident.‖ 127 Despite this
general principle, section 9 allows the law to prescribe negligence as a form of mens
rea. The concept of negligence is not exclusive to criminal law: it also applies in the
law of torts. Under the law of tort, negligence is defined as failure to use reasonable
care to avoid causing damage to others. 128 Negligence as a tort is actionable if there is
a duty of care owed to the complainant and there is a breach of that duty of care 129 and
damages have been suffered.130
But negligence as understood in the law of tort is different from negligence that
attracts criminal liability. Courts of law in Malawi have held that what is required is
that the negligence must be so gross as to amount to recklessness. For instance, to
secure a conviction under section 284 of the Penal Code, (a section that provides for
the offence of negligence by public officer in preserving public property) 131, the court
has observed that:
128 Nicholson v Lennard 8 MLR 364 (S.C.A.);
129 The exact nature of that duty of care depends on the facts and the circumstance of each case. As
was held by High Court in Kachingwe and Kachingwe and Company v Mangwiro Transport
Motorways Company Limited 11 MLR 362 that “there is no absolute standard of what is reasonable
and probable. It must depend on circumstances and must always be a question of degree.”
130 J. Tennet and Sons Limited v Mawindo 10 MLR 366
131 Section
120
[T]he degree of negligence must be so gross as to amount to recklessness. Mere
inadvertence in preserving public money or other property, while it might create
a civil liability, would not suffice to be the basis for instituting criminal
proceedings.132
Though the dictum was said in reference to the offence under section 284, it is
submitted that the same is true of all the other offences which have negligence as a
mens rea. What is required is ―culpable negligence.‖
(d) Terminology
(e) Offences that have negligence as a mens rea

In the Penal Code alone, offences to which negligence is a requisite mental
condition include the following:
• neglect to perform official duty by public officers under section 121 off the
Code;
• negligent act likely to spread disease dangerous to life under section 192 of the
Code;
• negligence to provide food and other necessaries to children under section 192
of the Code;
• Negligent to prevent a felony under section 403 of the Code;

• Criminal negligence generally under section 246 of the Code;
• Section 247 of the Code provides for the offence of negligence but where there
is a duty of care;
• Negligence by public officer in preserving public property under section 284 of

the Code;
• Negligent driving under section 126 of the Code;

• Manslaughter under section 208 of the Code;
What is clear from the list is that the range of offences that have negligence as a
requisite mental element are varied.
132 Per Chatsika, J. in Republic v Ndovi (1973), 7 MLR 235 at 241. That dictum was followed in
Republic v Rabson 11 MLR 277
121
(f) The essence of negligence as a form of mens rea
The essence of negligence as a form of mens rea is that X acted thoughtlessly
and failed to meet a required degree of care and circumspection expected of all
reasonable members of the society. Very few would doubt the need that members of
the society must meet the minimum standard of care if safety and health of other
members of the society is preserved. Indeed the society as a whole would fail its
members if people were not held accountable for failure to meet that standard of care
reasonable expected of all its members.
(g) Negligence and intention

Negligence and intention can never overlap. The one excludes the other. This
should not be interpreted to mean that when ever an act of committed there is either
and intention or negligence: sometimes both intention and negligence may be lacking.
What the statement means is that whenever intention is lacking, there is the possibility
of negligence.
One must also distinguish between conscious and unconscious negligence. In

cases of conscious negligence, the accused person foresees the occurrence of the
prohibited result, but decides unreasonably that it will to ensue. However, if he had
acted reasonably, he would have foreseen the possibility of its occurrence. On the
other hand, in cases of unconscious negligence the person does not foresee the
occurrence of the prohibited result when if he had applied his mind to all the facts of
the case as a reasonable person is expected he should have foreseen the occurrence of
the prohibited result. It should be emphasised that in both cases a person is said to
have acted negligently and can be held criminally liable for his conduct if all the other
requirements for criminal liability are present.
(h) Objective test

In determining whether a person acted negligently or not the law demands that an
objective test should be applied. Under the objective test, the question that has to be
applied is whether a person acted as a reasonable person would have in the
circumstance. The objective test of negligence differs fundamentally from the
subjective test. Under the subjective test, in order to determine negligence, one ought
to consider the personal characteristics, abilities, qualities and social circumstances of
122
the individual accused or defendant and determine whether he acted reasonably or not.
Proponents of the objective test argue that it would be almost impossible for courts of
law to apply the subjective test because it will demand that courts of law must
establish an individual accused person‘s knowledge, ability, social background,
emotional composition, level of intelligence, and so forth. Such an approach would
even accept stupidity as a legal excuse. On the other hand, those proponents of the
subjective test point out the mere impossibility of finding a truly reasonable person
and point out that a reasonable man is nothing but a glorification of a particular age.
In my opinion, the objective test is better of the two. If society is to be properly

ordered, a certain minimum degree of care must be demanded of all members of the
society. This becomes more necessary especially to people engaging is potentially
dangerous activities such as driving or handling dangerous substances. Whilst
exceptions may be allowed in respect of certain categories of people, such as children
and experts, it is necessary to apply an objective standard to which all must conform.
(i) Subjective factors

Though the test to be applied in determining whether a person was negligent or
not is essentially objective, there are certain exceptions to this general rule accepted by
our courts. The first exception relate to experts. If the question is whether an expert
was negligent, the question becomes whether a reasonable expert undertaking the
activity that was done by the accused person would have acted in the manner that the
accused person did. For example, if the question is whether a heart surgeon was
negligent in the performance of a surgical operation during which a patient died, the
surgeon‘s negligence cannot be determined in reference to the criterion of a reasonable
man, for a reasonable man is for all purposes a layman in the medical filed. Courts of
law in Malawi have accepted this exception: in Continental Motor
Agencies Limited v Barbour, Robb & O’Connor 1 the Supreme Court of Appeal held
that when determining whether an auditor was negligent or not the standard to be
applied is that of a reasonably competent, careful and cautious auditor. The same is
true of other experts, for example, drivers.2
Though never considered by our courts, it is submitted that if the question is

whether a child was negligent, the criterion for determination ought to be the conduct
of a reasonable child in the same circumstances. Lastly, if a person has more
knowledge on a certain matter than a reasonable man would have, in determining his
123
negligence the court must not refer to the inferior knowledge of a reasonable man. The
superior knowledge of the person must be taken into account. If, for example, the
reasonable man does not know that a bag which he has to pick and through elsewhere
contains explosive substances, but X happens to know this fact, X‘s negligence in
respect of the resulting explosion is determined not with reference to the knowledge
the reasonable man would have, but with reference to X‘s knowledge of the
circumstance.
1
11 MLR 316
2
See Sagawa v United Transport (Malawi) Limited 10 MLR 303
(j) Negligence and incompetent
If a person embarks on an activity requiring specialised knowledge (such as
driving a motor vehicle) when actually the person lacks the necessary knowledge, and
his conduct results into some harm to another person, he should be held negligent in
respect of his conduct. This will be the case not because of his ignorance but rather
because he acted without the required standard of care expected of a reasonable person
of the required knowledge. For instance, a person who does not know how to drive but
who has decided to drive a vehicle will be expected to do so with the required skill of
a reasonable driver.
(k) Negligence and omission

Negligence should not be confused with an omission. Negligence consists in the
failure to exercise due care expected of a reasonable person. An omission on the other
hand consists in failure to act positively where there is a legal duty to do so. An
omission is a type of an actus reus. It may be accompanied either intention or
negligence.
(l) Reasonable foreseability and/or reasonable response

Determining whether in certain circumstances a reasonable man would have
foreseen a particular result is different from determining what his or her ―reasonable‖
response would have been.
(m) Reasonable possibility and reasonable probability
124
There is a need to differentiate between reasonable possibility and reasonable
probability. It is the reasonable possibility that death may ensue which must be
foreseeable, and not the probability that it may happen. By emphasising on the
―possibility‖ of a result ensuing and not the ―probability‖ the law recognizes that in
most life situations there is always a probability of death. Consider a driver of a car:
however careful he or she might be, there is always the probability of an accident
occurring and death resulting thereof. What this mean is that every time a person
drives a vehicle on the road one cannot rule out completely the probability of death
being caused. But this does not mean that every time a person drives a vehicle death is
possible. By demanding that the possibility of a result must be reasonable eliminates
far-fetched or remote possibilities.
(n) Negligence as to what?

The next question important in understanding the way negligence works as a
form of mens rea is its point of reference: negligence as to what? As a matter of
general principle, the negligence must relate to all the requirements of the crime as
contained in the description of the crime. For the avoidance of any doubt, negligence
must even extend to the requirement of unlawfulness: the question would be whether a
reasonable person would, in the circumstances, have foreseen the possibility that his or
her conduct might be unlawful. This can be demonstrated by taking the example of the
offence of manslaughter as contained in section 209 of the Penal Code. The section
provides as follows:
―Any person who by an unlawful act or omission causes the death of another
person shall be guilty of the felony termed ―manslaughter.‖ An unlawful
omission is an omission amounting to culpable negligence to discharge a duty
tending to the preservation of life or health, whether such omission is or is not
accompanied by an intention to cause death or bodily harm.‖
From the section, it is an offence to cause death of another person by negligently

failing to discharge a duty tending to the preservation of life or health. The
negligence required must extend to all requirements of the offence, i.e., it must extend
to the duty, the preservation of life or health, the causation of death by failure to
discharge the duty, and that the death will be of another person. Consider the case of a
person, X who kills a snake using a very dangerous poison. He discards the carcass. X
lives in an area where non-one has ever been held to eat carcasses of hyena. Y takes
125
the carcass and eats it and dies. Will X be liable for manslaughter under section 209 of
the Code? Will the answer be different if he had killed a goat and lived in an area
where people tended to collect and eat reared animals found dead and they don‘t know
what caused the death? This question will have to be answered in reference to the
definition of negligent manslaughter contained in section 209. Firstly, did X had a duty
for the preservation of life or health when he was killing and discarding the hyena and
was he negligent? To answer this question, one must consider whether objectively a
reasonable person would have foreseen the possibility of a man collecting the carcass
for meat.
What this mean is that there is no such a thing as ―abstract negligence‖ or

―negligence in the air‖. The determination of the negligence must relate to the
elements or requirements for the crime. For instance, a person is driving a vehicle at
speed beyond the prescribed speed limit. He misses the road and hits a tree. Not
known to him, a person was hiding at the back of the car intending to get a free ride.
That person dies. Is the driver liable for negligent driving? Even though he was driving
negligently, he will not be liable for the death because he did not know that a person
was hiding in the truck and therefore could not be said to be negligent in the
preservation of his life or health and couldn‘t reasonably foresee that a breach of the
duty will kill the person hiding in the car.
Further, as noted earlier, there are two classes of crimes: result crimes and
conduct crimes. In the first type, the law criminalizes the bringing about of a certain
result. And where negligence is set as a requisite mental element for a result crime, it
becomes criminal to negligently bring about a particular result. In result crimes,
therefore, the test in respect of negligence is essentially: would the reasonable person
in the circumstances have foreseen that a prohibited result (for instance loss of
property in the case of the offence of negligent in preserving public property by public
officers) would ensue? Negligence is in respect of the foreseeability of a result. On the
other hand, for conduct crimes the target of the law is the doing of certain actions.
Where negligence is set as a mental element for conduct crimes, the essential question
becomes: would the reasonable man in the circumstances have foreseen that the
circumstance rendering his conduct unlawful might have been present? For possessory
crimes, the question is: would the reasonable person in those circumstances have
foreseen that the article which he possessed might have been the article as set out in
the description of the prohibition. All this means that in order to determine the point of
reference for the negligence, one has to examine the offence as set out in the
criminalizing provision.
126
(o) Negligence as to what?
A person can not intend to commit a crime involving negligence. An attempt
presupposes a fixed intention to do something and efforts to achieve the intended
result. For that reason one cannot intend to be negligent. Further, a person can not be
an accomplice to a crime whose required mental element is negligence. Accomplice‘s
liability is based inter alia on his intentional furtherance of a crime perpetrated by
someone else. There is therefore a need to prove that the accomplice formed an
intention to aid, abet, and so forth, the commission of the offence. One cannot aid or
abet negligently. However, this does not mean that more than one person who cause
death negligently cannot all be held liable for that death.
C. RECKLESSNESS
Introduction
English criminal law has for a long time recognized recklessness as a form of
mens rea. Under the English criminal law, in order for a defendant to be reckless, he
must unreasonably take a risk. There are two definitions of recklessness under the
English criminal law: Cunningham recklessness and Cardwell recklessness. The two
definitions are named after the leading cases where they were first expounded. In
Cunningham133 case the Court of Criminal Appeal held that the term ‗malice‘ when
used in a criminal statute required either intention or recklessness, and that
recklessness means that ―the accused person has foreseen that the particular kind of
harm might be done and yet has gone on to take that risk (i.e., the accused has foreseen
that the particular kind of ham might be done and yet he has gone on to take the risk of
it.‖ That definition of recklessness has one important element: it requires the
defendant‘s actual awareness of the risk (and that is why it is referred to as ‗advertent
recklessness‘). It is the awareness of the harm that brings recklessness within the
concept of mens rea and one that justifies the imposition of criminal liability and
subsequent punishment.
The Cunningham definition is subjective. It was applied in the case of R v.

Stephenson134 where the Defendant, a schizophrenic, lit a fire in order to warm himself
while sheltering in a haystack. The haystack caught fire which spread to destroy a lot
of other property. The defence relied on medical evidence that the Defendant may not
133 [1957] 2 Q.B. 397
134 [1979] Q.B. 695
127
have had the same ability to foresee the risk as mentally normal person. The court of
Appeal quashed his conviction and pointed out that the definition of recklessness
clearly turned on what the defendant actually foresaw. Other cases where the
subjective nature of the Cunningham recklessness was determinative of the outcome of
the cases include Parker135 and Briggs136.
In Metropolitan Police Commissioner v. Cardwell137 and the companion case

of Lawrence138 the House of Lords extended the definition of recklessness beyond the
subjective boundary. In the Cardwell case, the defendant set fire to a hotel while
intoxicated. He was charged, inter alia, with an offence against section 1 (1) of the
Criminal Damage Act, 1971, which makes it an offence to damage another‘s property
―being reckless as to whether any such property would be destroyed or damaged.‖
Lord Diplock gave the following definition of recklessness:
A person...is ―reckless‖ as to whether or not any property would be destroyed

or damaged if (1) he does an act which creates an obvious risk that property
will be destroyed or damaged and (2) when he does the act he either has not
given any thought to the possibility of there being any such risk or has
recognized that there was some risk involved and has none the less gone on to
do it.
Although the definition was given in relation to the offences of criminal damage, the
definition has been interpreted as extending to include all such cases where the
adjective ―reckless‖ is used in a criminal statute.
By defining reckless as including cases where the accused person ―has not
given any thought to the possibility of there being any ... risk‖, the Cardwell definition
is said to have incorporated into the definition of reckless an objective element. The
definition did not abolish the Cunningham definition: all that it did was extend
recklessness as including all those cases where the defendant fail to think of a risk
where that risk was a glaring one. This is what is called ―inadvertent recklessness.‖
There is no reported case where the question whether reckless is a form of

mens rea in Malawian criminal law has been directly considered. Section 9 of the
135 [1977] 2 All ER 37
136 [1977] 1 All ER 475

137 [1982] AC 341
138 [1982] AC 510
128
Penal Code gives one an impression that the only forms of mens rea recognized by
Malawian criminal law are intention and negligence only. The section provides in part
as follows:
Subject to the express provisions of this Code relating to negligent acts and
omissions, a person is not criminally responsible for an act or omission which
occurs independently of the exercise of his will, or for an event which occurs
by accident...
By mentioning intention and negligence, does the section by implication exclude

recklessness as a form of mens rea in Malawian criminal law? In other words, are
there offences in Malawian criminal law that have ―reckless‖ as a form of mens rea?
Section 126 (1) of the Road Traffic Act provides for the offence of ―reckless
driving‖ whilst section 246 of the Penal Code provides for a range of offences
involving ―reckless acts.‖ Subsection (2) of section 126 throws more light on what
the legislature meant by ―reckless‖. It provides that without restricting the ordinary
meaning of the word ―reckless‖, ―any person who drives a vehicle in willful or
wanton disregard for the safety of persons or property shall be deemed to drive that
vehicle recklessly.‖ The definition quoted above reveals that a person is said to act
recklessly if, firstly, he willfully (or intentionally 139) disregards the safety of others
and, secondly, he wantonly (or unjustifiably) disregards the safety of others. The
second definition can be said to incorporate the traditional understanding of the term
―reckless‖ in criminal law. However, that definition does not reveal whether the
subjective or objective elements will be applied in Malawian criminal law.
Reckless as an actus reus term

Section 126 (1) of the Road Traffic Act provides for the offence of ―reckless
driving.‖ The term ‗reckless‘ under the offence of ‗reckless driving‘ qualifies the
manner in which the act of driving was done: it was reckless. The person was driving
recklessly. In that context, reckless is an actus reus term. It is therefore necessary for
the prosecution to prove that the accused person was driving a vehicle recklessly
before a conviction can be secured against him. What, then, in the required mens rea
for that offence? A person under automatism and driving a vehicle can be said to be
139 In Republic v Metani, 7 MLR 341 (H.C.) in was held that the term “willfully” means acting
intentionally and not accidentally or involuntarily.
129
driving the vehicle recklessly. But that does not mean such a person will be convicted
of the offence of reckless driving. Apart from proving that the accused person was
driving recklessly, it is necessary also to prove that the driving was intentional. Both
the cognitive and voluntative elements of intention discussed above must be present
(i.e., the accused person must be aware of the driving and that it must be voluntary.)
For that reason, one of the required mental elements of the offence of reckless driving
includes intention.
Recklessness as a form of mens rea under Malawian Criminal Law

On its part, section 246 of the Penal Code (or the Penal Code generally) does
not provide any definition of the term ―reckless.‖ The section provide for what is
called ―criminal recklessness and negligence.‖ The section reads in part as follows:
Any person who in a manner so rash or negligent as to endanger human life or to be
likely to cause harm to any person –... (Emphasis supplied)
Under section 246, the term ―rash‖ is being used interchangeably with the term
―recklessness.‖ A person is said to have acted rashly is has acted thoughtlessly or
hastily without applying ones mind to the facts of the case. That term is objective
suggesting that recklessness is to be interpreted as objective under section 246 of the
Penal Code. We would therefore submit that under Malawian criminal law courts of
law should extend recklessness as including the objective element. In short, the
meaning of recklessness should not be restricted to consciously taking risks.
X. CRIMES OF STRICT LIABILITY

(a) Introduction
Section 9 of the Penal Code discussed above, clearly states as a fundamental
principle of criminal law in Malawi that a mens rea in the form of intention or
negligence must be proved before criminal responsibility is imposed on a person.
Considering how essential the requirement of mens rea is in civilized legal systems,
one is excused for expecting that mens rea is required in respect of all offences in our
statute books. But this is not the case. Though not expressly provided for by the Penal
Code, it is an established principle of our law that for certain offences there is no
requirement to prove mens rea. These are called crimes of strict liability. Liability is
130
―strict‖ because the prosecution is relieved of the necessity of proving mens rea in
relation to one or more of the elements of the actus reus. One would further rightly
expect that where mens rea is excluded it can only be excluded by an express
provision in a statute. But, unfortunately, this is not the case.
The doctrine of strict liability has its own share of controversy in criminal law
generally. This is true in terms of both the terminology used and its applicability
generally. Virtually every discussion of it includes a criticism of both the principle and
the methods for determining whether or not it is applicable in respect of an offence. In
which ever direction the issue is resolved, its application in our legal system is a
matter that is now beyond any doubt.
(b) Terminology
At the very onset, it is necessary to distinguish between strict liability and
absolute liability. Sometimes these expressions are used interchangeably even by our
own courts of law.140 It must be stressed, however, that the expression strict liability is
different from absolute liability. Strict liability means that mens rea is not required in
respect of one or more of the elements of the actus reus and not in respect of all the
requirements. Most importantly, the State must prove that the conduct is voluntary and
unlawful. It follows that although a defence which excludes mens rea may not be
available to a person charged with the commission of an offence of strict liability, a
defence which excludes the unlawfulness of the actus (e.g. necessity, official duty, and
so forth) would remain open to the accused. Liability in these cases is therefore
―strict‖ and not absolute.

On the other hand, in absolute liability offences, mens rea is excluded in respect
of all the elements of the crime and all that the state has to prove is that the accused
person committed the prohibited act or brought about the prohibited result. For
instance, it is accepted that it is an offence under section…of the Road Traffic Act for
a person who is not a holder of a driving licence to drive a motor vehicle on the roads.
It is accepted that this is an offence of strict liability. 141 Because it is a crime of strict
liability, mens rea is excluded in respect of one or more of the actus and not in respect
of all of them. It means that the State need not to prove that the accused person had an
intention to drive a motor vehicle without a licence and any excuse or defence that
140
141 See P.J. McGreevy (by his next friend, P.J.A. McGreevy) and Another v Sattar 12 MLR 258
131
relates to the mental state of the accused person will be denied by the court. However,
at the minimum it has to be proved that the accused drove the car voluntarily. If it is
established that the accused drove the car whilst under somnambulating (automatism)
he cannot be held criminally liable. Conversely, if this was an offence of absolute
liability, he would still be held liable.
Suffice to mention that in Malawian criminal law there is no offence which can
be said to be an absolute liability offence whilst a number of offences qualify as strict
liability offences. Whilst certain textbooks use the terms interchangeably, here strict
liability will be preferred because of the obvious differences between the two
expressions.
(c) Criticism of strict liability

There are a number of criticisms that have been leveled against crimes of strict
liability. The first criticism is directed against the very criteria that courts use in
determining strict liability. It has been said that the test are vague and speculative. It
has further been argued that it is difficult in these cases to say that courts are really
trying to ascertain the intention of the legislature: as Lord Devlin observed that
―Parliament has no intention whatsoever of troubling itself about mens rea.‖

Particularly in respect of the second test, it has been said that when judges start
evaluating the socio-economic context of the legislation they are in effect overstepping
the boundaries of their powers.
Probably the best argument against strict liability is that if one considers the
theories of punishment considered earlier, it is not proper to punish somebody who
lacks mens rea: a person is not deterred from committing a particular offence if he can
be convicted of it regardless of his knowledge of the surrounding circumstances. Nor
is it possible to prevent a crime on this basis. Further, the theory of retribution cannot
find any application where there is no blameworthiness on the part of the accused
person. And lastly, there is no room for the reformative theory because the convict
does not need any reformation.
(d) Principles for determination of strict liability

(i) The presumption of mens rea
132
What principles does the court require in order to determine that a particular
crime is one of strict liability? This question is important because a perusal of our
criminal statutes will reveal that whilst a statute may explicitly require proof of mens
rea through the use of such terms as ―intentionally‖, ―malice‖ ―fraud‖ ―willfully‖,
recklessly, negligently, permits, or uses words that clearly will convey to anyone that
there is a need for the proof of mens rea there are few statutory provision that
expressly or clearly excludes mens rea. In the majority of cases it is therefore left to
the courts to determine what the intention of the legislature was.
At common law, courts of law start by creating a presumption of mens rea. As

was observed by Wright J in the old case of Sherras v De Rutzen142 that there is a
presumption that mens rea an evil intention or knowledge of the wrongfulness of the
act, is an essential ingredient in every offence, but that presumption is liable to be
displaced either by the word of statutes creating the offence or by the subject matter
with which it deals, and both must be considered. More recently, the presumption was
affirmed by the House of Lords in B (A Minor) v D.P.P.143 where it was observed that:
[T]he starting point for a court is the established common law presumption that a
mental element, traditionally labelled mens rea, is an essential ingredient unless
Parliament has indicated a contrary intention either expressly or by necessary
implication.144
There is a need that our courts of law should follow the common law approach and use
the same presumption as a launch pad for their enquiry. This presumption is in line
with section 9 of the Penal Code which provides as a matter of principle that no one
shall be convicted of an offence unless he has acted with a guilty mind. It is important
that where the presumption applies, it is necessary for the court to specify the precise
form of the mens rea that is being implied: that is to say, is it intention or negligence.
Secondly, courts of law must determine whether the presumption is being

displaced by looking for indications to that effect. Such indications may be found in
such matters as (i) the language used; (ii) the nature and purpose of the
criminalization; (c) the scope and object of the provision; (d) how easily the purpose
of the statute would be defeated by requiring mens rea by, for instance, becoming too
difficult to secure a conviction.
142 (1895) QB 918
143 [2000] 2 A.C. 429 (H.L.)
144 Per Lord Nicholls of Birkenhead,
133
(ii) Statutes expressly excluding mens rea
A provision defining an offence may expressly exclude mens rea although such
cases are rare. A good example of a provision in the Penal Code that expressly
excludes mens rea is section 152 of the Penal Code. The section provides as follows:
Except as otherwise expressly stated it is immaterial in the case of any of the offences
committed with respect to a woman or girl under a specified age, that the accused
person did not know that the woman was under that age, or believed that she was not
under that age.
What the section is saying is that mens rea is excluded in respect of the age of a girl or
woman where a person is charged of an offence under sections 136145 or 138146 of the
Penal Code. It follows, therefore, that where a person is charge with the offence of
defilement under section 138, the State need not prove that he had knowledge that the
girl is actually under the age of 13 years or that he had any intention to have sexual
intercourse with a girl of that age. All that has to be proved is that he had an intention
to have sexual intercourse with the girl. Section 152 in effect excludes mens rea in
respect of the age of the girl rendering the offences in sections 136 and 138 of the
Penal Code offences of strict liability.
(iii) Excluding mens rea: the language and context of the prohibition
The first factor calls for courts of law to apply the ordinary rules of interpretation
of statutes in order to ascertain the intention of the legislature. It is possible to
conclude whether or not mens rea is required from the language employed by the
legislature. For instance, under section 44 of the Penal Code it is prohibited to employ
unlicensed drivers. The section reads as follows:
145 Section 136 of the Penal Code reads:
Any person who unlawfully takes an unmarried 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 shall be guilty of
a misdemeanour.
Any person who unlawfully and carnally knows any girl under the age of thirteen
years shall be guilty of a felony and shall be liable to imprisonment.
134
No person who is the owner or operator or is in charge or control of a motor
vehicle shall employ or permit any other person to drive such vehicle on a public road
unless such other person is licensed ... to drive the vehicle. Now consider the case of a
person who employs another as a driver after the other has shown him a fake driving
licence: has that person contravened the prohibition under section 44 of the Penal
Code? The obvious answer is yes. The description of the prohibition under that section
clearly does not require knowledge on the part of the employer that the employee is
not licensed to drive a vehicle. From the words used, one can conclude that it was not
the intention of the legislature to require either intention or negligence as forms of
mens rea. On the other hand, the prohibition under section 43 of the Road Traffic Act
can be said to require mens rea. Section 43 reads:
No person who is the holder of a learner‘s or driver‘s licence shall allow such
licence to be used by any other person.
The use of the word ―allow‖ in the definition of the prohibition in itself requires that
the holder of the licence is aware that the licence will be used by another person. If a
person steals the licence and subsequently uses it the holder of the licence cannot be
said to have ―allowed‖ another to use the licence. Similarly, if the holder of the
licence gives the licence to another for safekeeping and the other person subsequently
decides to use the licence, the holder cannot be said to have allowed another to use the
licence.
(iv) Excluding mens rea: the nature of the crime

The second factor calls for the court to examine whether the crime created is one
in the sphere of public welfare or not. As a rule of general principle, public welfare
offences are mostly of strict liability. Without suggesting an exhaustive definition
here, public welfare offences can be described as those offences that relate to our
modern industrial and technological society. The argument is that in order to protect
public welfare individualistic approach of criminal law as represented by the
requirement of blameworthiness in the form of a guilty mind should be set aside. For
instance, an employee of a food canning company accidentally puts a dangerous
chemical in the production line mistaking it as a preservative. Such an accidental act
exposes hundreds or thousands of lives to danger. To require proof of mens rea in
cases like these would result into a major failure by our criminal law to protect the
135
society. For this reason, the law will demand strict liability with the aim of forcing
those who engage in activities that poses a danger to public welfare.
(v) Excluding mens rea: the nature and purpose of the criminalization
The third requirement (namely the nature and purpose of criminalization) calls
for the examination of the punishment prescribed. Where the punishment prescribes is
severe, one may infer that parliament did not intend to create strict liability and visa
versa.
(vi) Excluding mens rea: effect of mens rea of enforcement

Lastly, the court may also consider the effects of demanding proof of mens rea
on the effective enforcement of the offence in question. Here the court must consider
whether it would be difficult for the state to prove the accused person‘s state of mind.
XI. VICARIOUS LIABILITY

(a) Introduction
It is trite in civilized legal systems that nobody ought to be held liable for a crime
committed not by himself but another and to which he was not a party. Only those who
have participated in the commission of a crime and with the required mens rea ought
to be held criminally liable for that crime. However, this principle is true to criminal
law only. For in civil law, particularly in the law of torts, a person may be held liable
for a tort committed by another person: a master may be held liable for a tort
committed by his servant and in which he took no part and of which he was unaware,
subject to certain conditions.147 In criminal law, however, no such general principle of
vicarious liability is recognised. It is only when an Act of Parliament specifically
impose vicarious liability, either expressly or by implication, that courts would hold a
person vicariously liable for a crime committed by another.
(b) Express vicarious liability
147 For a comprehensive discussion of the principles surrounding vicarious liability as they apply in
the law of torts see …See also Masika v Agricultural Development and Marketing Corporation
(S.C.A.) 10 M.L.R. 244; Blantyre Hotels Limited v S.S. Rent-A-Car (S.C.A.) 12 M.L.R. 12; Nakanga v
Automotive Products Limited (H.C.) 11 M.L.R. 79
136
There are numerous instances where the legislature has expressly provided that
criminal responsibility shall attach to a particular person for an offence committed by
another, irrespective of whether or not that person was connected with the commission
of that offence in a manner which would ordinarily render him criminally liable for it.
The limits of such vicarious liability and the incidence of the onus of proof will, of
course, depend upon the terms of the statutory provision in question.
Vicarious liability has been expressly imposed in the following statutes:
(c) Implied vicarious liability

Vicarious liability can also be implied from the wording and context of a statute.
But since, as a matter of general principle, a person is not liable for the crime of
another in which he took no part, such an inference should not be lightly found. But
unfortunately, the legislature may not express its intention as clearly as one would
wish in order to bring certainty into the law. for that reason, there will be
circumstances when courts of law will be required to decide whether the legislature
intended to impose vicarious liability or not.
The tests or criteria used to determine whether vicarious liability was created by
a particular statutory provision are reminiscent of the tests used to determine whether
strict liability was created discussed above, namely: the language used by the
provision in question; the scope and purpose of the prohibition; the measure of
punishment; whether the legislature‘s intention will be frustrated if one assumes that
no vicarious liability was created; whether the employer gains financially by the
employer‘s act, and whether only a limited number of people (for example licence
holders), as opposed to the community in general, are affected by the provision.
When implying vicarious liability, one should not be tempted to import

wholesale the principles that apply in the law of torts, for instance, on the requirement
that the servant must have been acting in the course of his employment. One need to
imply the intention of Parliament by examining the relevant provision in order to
determine whether vicarious liability can be implied within the context of the statute.
This cautionary statement was repeated by the High Court in Republic v Issa and
Grey148 when the court said:
To imply vicarious liability a construction must be adopted that brings the owner
within the words of the statute and it is not enough to show merely that the
148 (H.C.) 12 MLR 157
137
owner‘s servant committed the actus reus in the course of him employment. At
common law the maxim qui facit per alium facit per se, active in civil law, was
not generally applied in criminal law in the absence of express authorisation by
statute…
XII. MENS REA OF CORPORATE BODIES

As discussed above, criminal liability can also attach to corporate bodies. Section
24 of the Penal Code in effect holds that it is possible for a company or body corporate
to commit an offence. And the question that one may ask: can a non-human entity
have a state of mind required of a crime? This is important because being an artificial
person a corporation cannot itself commit an actus reus or entertain a mens rea for an
offence. But as noted above, a corporation can be penalised for crimes committed only
by its agents or servants. Similarly, therefore, the mental element of a corporation is
the mental element of its servants or agents. Having no mind of its own a corporation
is incapable of having its own mens rea149.
Before a corporate body could be said to possess the required mens rea for an
offence, that mens rea must be formed by a servant in the executive or executive
position: not each and every servant. It follows that before a company could be held
vicariously liable for an offence its servants at management level must have the
required mens rea for that offence.150
149 In Nyasaland Transport Company Limited v Republic (1961 – 63) ALR Mal. 328, Cram, J.
had the following to say on the subject of when a corporation can be said to possess mens rea for an
offence:
The regulation created a liability on the part of the company owner, as principal in the
first degree, provided there was mens rea on the part of the company (i.e. on the part of a
directive servant…
150 In Nyasaland Transport Company Limited v Republic, Cram, J. went further to state that:
“Prima facie, a supervisor in a workshop would not, unless exceptionally, be a directive
officer of a company. No English decision goes so far and to support a conviction proof would
have been necessary of the delegation of enough responsibility to such a subordinate to make
him an „organ‟ of the company…
138
It be mentioned that there are a number of procedural and substantive obstacles
to the imposition of criminal responsibility on corporate bodies and unincorporated
associations. Most of these obstacles require legislative intervention for clarification.
139
CHAPTER NINE
PARTICIPATION
1. Introduction
It is not uncommon to find that more than one person are involved in the
commission of an offence. In many instances, the commission of a single offence
involves a number of persons playing different roles in the furtherance of the criminal
objective. For example, A approaches B, C and D telling them that he has information
that a certain office will receive cash to be used to pay staff salaries. He assures them
that if they promise to pay him a commission of 10% of the money robbed, he will
reveal to them the identity of the office. The three undertake to pay A the commission
and in consideration to that A tells them the name and location of the office. B, C and
D go to the office without A. During the robbery, B is stationed outside the office in
order to give timeous warning to C and D in the event of the police or any person
appearing. C, holds those inside the office at gun point as D takes the money and puts
it in a bag. After a successful robbery, B, C and D approach E who helps them with
transport and safe-keeping of their loot. Which of all these people, A to E, is guilty of
the robbery? What if during the robbery, C shot dead one of the hostages who was
trying to escape, are A,B, D and E guilty of the offence of murder as well? What
principles are used by the court in order to hold one person responsible for the
offence? Does the liability of the participants extend to crimes committed by the other
participants beyond what they agreed? Does the law differentiate in terms of
blameworthiness between participants depending on the level and extent of their
participation? Can a person withdraw from a crime and how does the law treat such
persons? It is questions like these that will be answered in the discussion which
follows.
The law in Malawi on participation to a crime is a team work of statutory law

and principles of the common law. The later supplements the former. As far as
statutory law is concerned, sections 21 to 24 and sections 407 to 409 of the Penal Code
are the relevant statutory sources of the law on participation. The first set of sections,
i.e., sections 21 to 24 deal with participation to a crime during the preparatory stages
140
and during its commission whilst the other set deals with participation after the offence
had already been committed and covers individuals who help those who have
committed the offence. However, much of the gaps are filled by common law
principles.
The different persons who may be involved in the commission of an offence may
be divided into three categories, namely, perpetrators, accomplices and accessories
after the fact. The first two categories are jointly referred to as Principal Offenders
because, legally, they are considered as those who commit an offence regardless of
their level of participation. As a matter of fact, perpetrators and accomplices are guilty
of the offence. Our criminal law does not treat an accessory after a fact as a participant
in the commission and are guilty of a lesser offence.
2. Terminology
(i) Principals
A principal offender is one who participated in the commission of the offence to
such an extent that he is charged and convicted of actual commission of the offence. A
person is said to be a principal offender if he has actually caused the prohibited
conduct with the requisite mental element (in which case he is referred to as the
perpetrator) or if he has procured the commission of the offence or has counseled,
aided or abetted the perpetrator such as to justify his conviction of the commission of
the offence itself. So if A wants to commit the offence of murder and B, well aware of
A‘s intentions, supplies him with a gun which A uses to commit the offence, then both
A and B will be charged and convicted with the offence of murder as principal
offenders. However, A is the perpetrator whilst B is an accessory. This will be the case
even if at the time of commission of the offence B was hundreds of miles away. What
this means is that one can be a principal offender without being a perpetrator of the
offence. And indeed one can be a principal offender even if there is no perpetrator of
the offence. Section 21 of the Penal Code actually provides that perpetrators of the
offence and accessories are all principal offenders. It can therefore be said that the
practical implication of holding a person as a perpetrator or as an accessory is quite
insignificant. The only time when it may become relevant is during sentencing. Courts
may vary sentences depending on the level and extent of participation by different
principals. For this purpose it may therefore be necessary to determine the manner of
participation in a crime.
141
(ii) An accomplice
The term accomplice refers to all people who associate with each other in the
commission of an offence. In the words of Unyolo J. in Makulani v Republic151: For
the record, at law an accomplice is a person who is associated with another in the
commission of a criminal offence, whether as a principal or accessory before or after
the fact. This includes a person who procures or aids and abets another in the
commission of the offence; it also includes a person who receives, in appropriate
cases.152
In short, an accomplice includes every person who in any way is connected with an
offence in a culpable manner.
(iii) Perpetrator
Under section 21 of the Code, a perpetrator is described as ―every person who
actually does or makes the omission which constitutes the offence.‖ In other words, he
is a person who, with the relevant mens rea causes the actus reus of the offence. He is
the one who does the prohibited act or omission constituting the offence, or brings
about the prohibited result. His actions or omission constitutes the actus reus in the
definition of the crime. Hence in a murder case, a principal is the one who ―causes
the death of another person‖153; in a theft case, he is the one who ―fraudulently and
without claim of right takes anything capable of being stolen‖ 154; in a rape case he is
the one who ―‖unlawfully has carnal knowledge of a woman or girl without her
consent.‖155 In deciding who the perpetrator is, the determinative question is: who did
the prohibited act or brought about the prohibited result as described by the
criminalizing provision? In deciding who the perpetrator is, one must consider the
conduct and state of mind of all the participants and decide who amongst them falls
squarely within the definition of the crime.
151 [1993] 16 (1) MLR 276 (H.C.)
152 At p. 280
153 See section 209 of the Penal Code for the actus reus for the offence of murder.
154 See section 271 (1) of the Penal Code for the actus reus for the offence of theft.
155 See section 132 of the Penal Code for the actus reus for the offence of rape.
142
It be mentioned that there may be more than one perpetrator. This is the case in
instances where more than one person each with the relevant mens rea causes the
actus reus of an offence either in pursuance of a joint criminal enterprise or each
pursuing his own criminal plan. For instance, if a group of people assault a person who
later dies of excessive bleeding. Every person who participated in the assault will be
guilty of murdering the person. They acted together and the cumulative effect of their
unlawful actions has caused the death of the person. Or if a person sets fire to a house,
another person, not aware of the actions of the first person sets fire to another part of
the house and then the whole house is burnt down. Both persons will be guilty of arson
even though they acted independent of each other. And further, one will not be held to
say that the house would have been burnt down even if he did not set fire to the other
part of the house.
In those cases where perpetrators act in pursuance of a conspiracy, they are

called joint perpetrators. An example of a crime involving joint perpetrators would be
where X takes the victim by the arms and B takes him by the legs and together they
throw him over the precipice or where two or more men take turns in raping a woman.
In Republic v Mphekelele and Mphekelele 156 the two accused person jointly assaulted a
person who later died. They were both charged and convicted of the offence of
murder. The court noted that if death results from combined efforts of two or more
assailants with a common purpose, each is deemed to have caused the death regardless
of whichever of them actually struck the fatal blow.
It is equally possible to have more than one principal to a crime even though all
perpetrators do not act in cooperation: such perpetrators are called ―concurrent
perpetrators‖. If A and B drive negligently and in the resultant collision a third party is
killed, both are criminally liable for the death of the person as concurrent perpetrators.
It should therefore be pointed out that the liability of a person as a perpetrator depends
on his or her own conduct and state of mind.
It is also necessary that when doing the prohibited act or omission or bringing
about the prohibited result, the perpetrator must have acted with the required mental
element for that particular offence. For instance, for the offence of murder the
principal must act, inter alia, with the intention to ―cause the death of any person‖ 157;
for the offence of theft the person must act with the intention to ―permanently
156 (1966 – 68) 4 ALR Mal 484
157 See section 212 (a) of the Penal Code for the mens rea for the offence of murder
143
deprive the general or special owner of the thing of it‖; 158 etc. One is therefore held as a
perpetrator is he or she acted with the requisite mental element.
(iv) Innocent Agents

The liability of perpetrators is in most cases straight forward and with little or no
controversy. He or she is the actual person who did that which the law prohibits. It
shouldn‘t, therefore, occasion any difficulty in justifying why he or she should be held
responsible for the commission of the offence. However, difficulties and controversy
surround cases where a person acting with a guilty mind uses a person who either is
legally ―incapable‖ of committing the offence, for instance by reason of the
infancy159, or where that other person is not fully aware of the facts of the case. Two
examples should suffice to demonstrate the problem: A father is walking in a shop
with his four year old son. The son starts to cry for a sweet. The father leads the child
to the sweets and the child picks one and puts it in his mouth. He then exist the shop.
By reason of his age, the child has an absolute defence of infancy available to him and
hence cannot be convicted of the offence of theft. What about the father? Or whether
A tells his friend B to go and take something from a house claiming that the house
belongs to him. Unaware that A is lying about owning the house B goes to the house
and takes the thing he was asked to bring. By reason of the fact that B did not act with
the requisite mens rea for the offence of theft, he cannot be convicted of the offence of
theft. What about A? In both examples, there is no one who can be properly said to be
the ―perpetrator‖ of the offence. In such cases the perpetrator is said to be an
―innocent agent.‖ An innocent agent is one who causes the actus reus but has either a
defense available to him or is devoid of criminal responsibility. In cases of innocent
agents, the person whose actions are the immediate cause of the innocent agent‘s
actions is said to be the perpetrator. In the example above, A will be charged and
convicted of the offence of theft. The actus reus of the offence of theft has been
committed when B took the money from the house. The actus reus has been caused by
B but at the instance of A. B has no mental element of the offence of theft whilst A has
the required mental element. And for this reason A will charged and convicted as a
158 See section 271 (2) (a) the Penal Code for the mens rea for theft
159 For instance under section 14 of the Penal Code, a person under the age of seven years is
not criminally responsible for an act or omission and a male person under the age of twelve years is
presumed to be incapable of having carnal knowledge.
144
principal offender for the offence of theft even though B will be free. Even though B is
a sane adult, he is nonetheless unaware of the criminality of his actions after being
advised to do the act whilst the advisor actually knows the criminality of the act.
However, if the innocent agent becomes aware of the guilt of his act and continues
with it he loses his innocence and transforms into a principal.
More problematic are cases involving an innocent agent but the offence is one
which it is incapable of being committed by the person acting through the innocent
agent. For instance, if a husband, A, convinces a friend, B, to have sexual intercourse
with his (the husband‘s) wife in such circumstances where the friend, B, believes that
the wife is consenting. B is innocent of the offence of rape since he did not know that
the woman is not consenting. He is in effect an innocent agent. But on the other hand it
would invite absurdity to say that the husband has raped his wife. Or in the case of
bigamy: X has induced a married woman Y to enter into marriage with K, by
convincing her to believe that her husband is actually dead when in fact he is alive. It
is difficult to say that X has committed the offence of bigamy. The English case of
Cogan and Leak presents the best example of such a scenario. The facts of the case are
that a husband (Cogan) persuaded his friend (Leak) to have sexual intercourse with his
(Cogan‘s) wife. Cogan induced Leak to believe that the wife has consented to the
intercourse. It was impossible for the court to hold that Cogan was the perpetrator
because by then in England the position was that a person cannot rape his wife.
The best solution available to courts of law in England was promulgated in the
case of Millward that the person acting through the innocent agent should be convicted
with the offence of procuring the commission of the offence. However, before the
person acting through the innocent agent is so convicted it is necessary that the offence
must actually be committed. In Malawi we have to wait until our courts are seized
with a similar controversy and have an opportunity to provide a working principle.
(v) Accomplice
Our criminal law extends liability beyond the person who actually caused the
prohibited conduct, the perpetrator, to include persons whose actions do not
correspond with the description of the offence as contained in the criminalizing section
but who, in one way or another, have played a part in the commission of the offence.
These are people who are materially connected to the commission of the offence. So if
145
it is established that a person intentionally assisted, encouraged, advised or counseled
another to commit an offence, that person will be charged and convicted together with
the perpetrator of actually committing the offence. And further, these people can be
convicted of the commission of the offence even where the actual perpetrator has not
been convicted of the offence. The people who intentionally assist, encourage, advise,
counsel or procure others to commit an offence are called accomplices.
. The justification for extending liability to include accomplices is not hard to

find: in terms of blameworthiness, there is little difference between a person who
murders and another who supplied the murderer with a murdering weapon well aware
that the first person will use it to kill someone; or between a killer and the person who
cheered and encouraged the killer as he mercilessly beat an innocent victim to death.
But our criminal law does not only extend liability to accomplices: it provides
that accomplices will have to be charged with the actual commission of the offence,
hold them liable for the offence and face the same punishment as the perpetrator of the
offence. As the Supreme Court observed in Chakana v Republic160 that:
…furthermore, it is this court‘s view that under section 21, any person who aids
or abets, or who counsels or procures any other person to commit an offence is
deemed to have committed the offence ands is guilty of the offence and can
therefore be charged as a principal.
It is a principle of profound importance to the law on criminal participation and

which should be remembered at all times that section 21 does not create an offence. It
merely ascertains the position that criminal liability extends beyond the actual
perpetrators of the offence to include some other people thou they did not themselves
do that which is prohibited by the law. In the Chakana Case the Supreme Court, whilst
responding to the appellant‘s Counsel‘s arguments to the effect that failure to disclose
that the accused person was being charged under section 21 of the Penal
Code prejudiced him, had this to say:
We would also like to mention that the section (section 21 of the Penal Code)
does not create an offence. It merely lays down guideline as to who can be
treated as a principal offender and in cases where there is more than one
offender.
160 (S.C.A) 12 MLR 219
146
In actual fact, it is not necessary that the accessory be charged as an aider or abettor or
counselor etc all that is required is for the prosecution to prove that the accused person
was an accomplice and the Court will convict him for the actual commission of the
offence.161 The prosecution therefore has two options before it: either to charge the
accessory with actual commission of the offence or to charge him with adding,
abetting etc the commission of the offence. If the prosecution opts to take the second
route, then it will have to specify the exact offence the accused person aided, abetted
etc. This position is in line with the very wording of section 21 of the Penal Code as it
clearly states that the accessory ―may be charged with actually committing‖ the
offence.
There are however certain cases where it would be impossible to charge an

accomplice with the actual commission of the offence. In such cases the prosecution is
left with the option of charging the accomplice with being an aider, abettor etc. A good
example would be in respect of the offence of theft by servant or theft by public
servant. If a person who is not a public servant is an accomplice to the offence of theft
by public servant, it wouldn‘t be proper to charge him with the offence but rather with
aiding or abetting etc the commission of the offence of theft by public servant. The
same is true with such offences as bigamy, sexual offences and driving offences.
There are a number of principles that must be explained about accomplice

liability:
(a) Derivative nature of accomplice liability
Accomplice liability is derivative or dependent in nature: it derives from the

criminality of the actions of the perpetrator. What this means is that before an
accomplice is held liable, the offence itself must be committed in the first place.
Resultantly, if X gives Y housebreaking equipment and Y uses the equipment to

commit the offence of burglary X will be guilty as an accomplice. He will be said to
have aided the commission of the offence. On the other hand, if Y decides not to
161 See Republic v Chakana and Phiri (H.C.) 7 MLR 202 where the court said:
“it is nor essential for the application of section 21 (b) (of the Penal Code) that the
person or persons enabled or aided should be charged with the aider or abettor. It is
sufficient for the prosecution to prove, as I find it has proved, that a person or persons aided
or abetted.”
147
commit the offence, X will not be guilty as an accomplice. This will be the case even
though in terms of blameworthiness there is no difference as far as X is concerned
whether Y committed the offence or not: he has done all that which was in his power
to do.
Before the accomplice is held liable, it is not necessary that the perpetrator need
to be tried and convicted of the offence. It is sufficient that somebody else committed
the crime as perpetrator even though he has not yet been apprehended or has turned
into as state witness.
(b) Material connection to the offence
Before the accomplice can be found guilty of committing the offence, it is

necessary that he or she must do an act which must materially connect him to the
commission of the offence. Under section 21, a person will be said to be materially
connected to an offence is he or she aids, abets, counsels and procure another to
commit an offence. The assistance or encouragement may be slight but it is necessary
that there must be an act that can be said to have furthered the commission of the
offence.
The facts of the English case of R v Calhaem162 best illustrate the principle for
the need for material connection between the acts of the accomplice and the
commission of the offence. The defendant hired Z to kill a woman. After being paid by
the defendant, A decided not to carry out the murder and decided to fool the defendant
by visiting the victim‘s house carrying a gun and a hammer and act out a charade that
would give the impression that he had tried to kill the woman but failed. When Z
reached the house, the victim screamed and Z panicked and hit the woman with the
hammer thereby killing her. The defendant was convicted and he appealed arguing that
considering what had happened, there was no causal or material connection between
his acts of counseling and the commission of the offence. The argument was rejected
by the court arguing that since the defendant indeed counseled the perpetrator and that
that the offence counseled was actually committed by the counseled acting within the
scope of his authority, it was not necessary to show that the counseling was the
substantial cause of the offence.
162 [1985] QB 808
148
(c) The case of spectators
This principle that there must be a causal connection between actions of the
accomplice and the perpetrator of the offence automatically does not extend
accomplice liability to mere spectators. It should be noted that mere presence at the
scene of a crime does not make one an accomplice. This principle should be viewed
against the background of another principle that the law does not impose a duty on any
person to prevent the commission of an offence. In R v Bland163, the defendant shared
a house with a person who was keeping prohibited drugs. In quashing her conviction
for the offence of the offence of possession of prohibited drugs, the Court of Appeal
noted that without the evidence of actual assistance, either active or passive, the mere
fact that she had lived with the co-accused does not in itself warrant a conviction for
being an accomplice to the offence. Mere knowledge of the commission of the offence
does not in itself suffice.
The law will hold a passive spectator an accomplice when he previously agreed
to be present at the scene of the crime. In that case, the presence will be said to have
encouraged in the commission of the offence. In R v Clarkson164 the defendants
entered a room and after hearing some noise suggesting a disturbance of some sort
emanating from the room. They found fellow soldiers raping a woman and remained
to watch what was happening. They were convicted of abetting the rapes. In quashing
the conviction, it was held that the accused persons could only have been convicted if
(a) the presence of the accused on the scene actually encouraged the commission of
the offence and (b) the accused had intended their presence to offer such
encouragement.
Nor does approving a crime after it has been committed qualify one as an
accomplice.
(d) State of mind of an accomplice

The requisite state of mind of an accomplice is different from that of the
perpetrator. Whilst the perpetrator must have the state of mind as described in the
relevant provision, for an accomplice, he must have acted with an intention to further
163 [1988] Crim LR 41
164 [1971] 1 WLR 1402
149
the commission of the offence. It must be established that the accomplice acted with
an intention to do such acts which are capable of aiding (i.e., to assist, help or support)
or abetting (i.e., encouraging) or counseling (i.e., encouraging) the perpetrator to do
that thing which is the actus reus of the principal offence. It is not necessary to prove
that the accomplice intended that the principal offence should be committed. So if the
accomplice was indifferent as to whether or not an offence will be committed, this will
not exonerate him from accomplice liability.
As to the extent of the accomplice‘s knowledge, it is a principle that what is

required is that the accomplice must know that a crime of a certain category will be
committed even though he might not know the nitty gritty of the crime. Hence, is the
accomplice knew that an offence involving breaking into a building will be committed
but does not know the specific building that will be broken into, he will still be held
liable if the offence is committed. On the other hand, is the accomplice had known that
the other person intends to commit an offence but does not know the nature of the
offence that will be committed, he can escape liability. In R v Bainbridge165, the
defendant supplied cutting equipment to certain people well aware that it will be used
for some illegal purpose involving cutting something. The equipment was used to
break into the Midland Bank at Stoke Newington. His argument that he did not know
that the equipment will be used to break into the Midland Bank was rejected by the
court which held that as long as the accused person knew the type of crime that was
going to be committed and that it was not necessary to show that the accused person
knew the specific premises that were to be broken into and other details. Similarly in
D.P.P. for Northern Ireland v Maxwell 166 the defendant drove a person to an inn well
aware that the person intended either to plant a bomb or shoot someone. The person
actually planted a bomb. It was held that as long as the perpetrator committed an
offence in the contemplation of the accomplice, then he will be liable. In the words of
Lord Scarman:
He may have in contemplation only one offence, or several: and the several
which he contemplates he may see as alternatives. An accessory who leaves it to his
principal is liable, provided always the choice is made from the range of offences from
which the accessory contemplates the choice will be made. A person can also be held
liable if he turned a blind eye to the fact that his acts will be of assistance to the
165 [1960] 1 QB 129
166 [1978] 3 All ER 1140
150
commission of an offence. Consider the case of a tax driver who is approached by
known criminals to drive them to a certain location in circumstances that would make
anyone know or suspect that they are going to commit an offence. He drives them to
the place and is paid. He will be liable for what ever offence the people will commit. It
does not matter as to the motive of the accomplice or whether he is indifferent or not.
However, mere recklessness or negligence is not enough as to whether the perpetrator
will be assisted or not is not enough.
It is not enough to prove that the person was negligent. A person who forgets to
close a window is not an accomplice to a burglary committed by someone who enters
the door. In as much as the negligence of the person might have furthered the
commission of the offence, but that does not make the person an accomplice. He will
be held as an accomplice if he knew that a burglary was being planned and he left the
door open even if he did not agree with the perpetrators of the burglary that he will
leave the door unlocked for them to make an easy entry. What this means is that, there
is no need for conscious co-operation between perpetrators and accomplices before
one can be held as an accomplice.
Even though the law does not impose a duty to prevent a crime, property owners
will be liable for failing to take reasonable steps to prevent an offence that occurs on
or with their property and in their absence. This is what is called the ―control
principle‖. The law has therefore co-opted property owners as law enforcement agents
in respect of their own property.
(e) Accidental departure from the common design
A and B asks C to drive them to a place where they want to go and threaten a
person whom they suspect to be going out with A‘s wife. When they reached the
scene, A produces a gun believing that it is unloaded and whilst threatening D shoots
him to death. B knew that they will use the gun to threaten the person but C did not
know that a gun will be used. Are B and C liable for the death of the person? In cases
where there is an accidental departure from an agreed upon course of action, the law
draws a distinction between joint enterprise and accessories. In a case of joint
enterprise, a party is liable in accordance with his or her own level of participation and
mens rea whilst for an accessory he is liable to whatever crime that the principle has
committed.
151
(f) Enabler
Section 21 of the Penal Code includes as accomplices those who does or omit
to do an act for the purpose of ―enabling another person to commit an offence.‖ And
to enable someone is to do something which facilitates the successful commission of
the offence by another.167 Before one can be convicted as an enabler, it is not necessary
to establish a causal link between the actions of the enabler and the commission of the
offence. So the activities of the enabler may not have ―enabled‖ the offence to be
committed or they are of such a nature that they can‘t, as a matter of fact, enable the
offence to be committed. But the accused person will be charged and convicted of the
offence as long as it is established that he did something, with the required mens rea so
as to enable the commission of an offence. The rationale for the principle is that there
is nothing in the word ―enable‖ that can be interpreted as requiring such a causal link.
However, it is necessary to establish that an offence was actually committed.
(g) Aider
According to the Attorney General‟s Reference (No 1 of 1975) ―to aid‖ means
to ―give help, support or assistance‖ the perpetrator to commit the principal offence.
The assistance may take a variety of forms: it may take the form of supplying
instruments for the offence, keeping a lookout, doing preparatory acts, etc. This can
happen both during the preparatory stage, i.e., supplying the necessary materials, and
during commission of the offence, i.e., holding a person down whilst he is being
robbed.
Before one is convicted for aiding in the commission of the offence, it is

necessary to show that the offence actually aided has actually been committed. Just as
is the position with enabling, so too with aiding, there is no need to prove any causal
connection between the assistance rendered and the commission of the offence. So you
don‘t have to establish that the perpetrator used the instruments that were supplied by
the accomplice or that if the assistance was not given the offence would not have been
committed. Hence, once A B C agree that they should engaged in a robbery and A is
assigned the task of driving B and C to the scene of the crime and to drive them back
167 See Republic v Chakana and Phiri (H.C)
152
with the proceeds of the robbery. And unknown to A, B and C agree among
themselves not to rely on A and engages some other person to do the job of A. If A
drives to the rendezvous and does not find B and C, his culpability as an accomplice
will not be affected.
But there is a need for consensus or the meeting of minds between the aider and
the aided. If A, knowing that B is planning to break into a building, and without
agreeing with B, leaves a house breaking instrument at such a place that B will use,
and has actually used in the commission of the offence of breaking into a building,
will not be liable as an accomplice of the offence of breaking into a building.
(h) Abettor
An abettor is an accessory who incites, instigates or encourages another to

commit an offence. It does not matter whether or not the abettor was present at the
time of the commission of the offence. Abetting has been distinguished from
counseling on the ground that to counsel means to incite at some other earlier time
whilst to abet is to incite at the time of commission of the offence.
(i) Counsel
Counseling means incitement, advising or even giving information required for

an offence. And this should be done before the actual commission of an offence.
Before one can be said to have counseled another, there is need to prove that there is
some positive act and active encouragement to the perpetrator. There is no need to
establish any causal connection between the counseling and the commission of the
offence. This common law position is being reiterated by section 23 of the Penal Code
which provides that where a person counsels another to commit an offence the liability
of the counselor will not depend on the fact that the offence that is actually committed
is the same as that was counseled or a different one. It is further immaterial whether or
not the offence was committed in the manner as counseled. What matters is that the
offence that is actually committed or the manner in which it has been committed is a
probable consequence of carrying out the counsel. According to the section, a person
153
who gives counsel is deemed to have counseled the other person to commit the offence
actually committed by him.
(j) Procuring
Procuring means ―to produce by endeavour.‖ One is said to have procured a

thing if he or she takes appropriate steps to ensure that the thing actually happens. And
hence, as stated above, there must be a causal link between what was procured and the
commission of the offence. There must be a link between the accomplice‘s procuring
and the principal‘s act. There is no need to prove any form of consensus between the
procurer and the procured. The rationale is that the very meaning of the words can not
be interpreted as requiring a consensus.
What about people who are in the trade of supplying goods and services to the
general public? Three scenarios need to be considered here:
Situation (i): A is in the business of selling explosives used in mining. He is

approached by B who demands that he be supplied by some. The law requires that the
supplier should ascertain from any prospective buyer of explosives that they will not
be used for criminal purposes. A never made any enquiry as to the use of the
explosives from B. B used the explosives to commit a terror attach. Will A be guilty as
an accomplice to the crime?
Situation (ii): the same facts as stated but A asked B as to what he intend to do
with the explosives and B told A that he intends to use them for terror attack. A did not
believe B and he supplied the explosives. B indeed used them for a terror attach. Is A
liable as an accomplice?
Situation (iii): the same facts but after the two have struck a deal and B has paid
the purchase price, but before A delivers the explosives, B tells him that he is going to
use them to commit an offence. A delivers the explosives and B uses them to commit
an offence. Is A liable as an accomplice?
According to the principle is National Coal Board vs. Gamble, A will be liable
in situation (ii) and not in situations (i) and (iii). He will not be liable in situation (i)
because of lack of knowledge of the facts and further because of the absence of the
intention. He will not be liable in situation (iii) because when he was delivering the
154
explosives, when he was actually aware of the use B to put the explosives, he was
merely performing a legal duty in pursuance of the contract of sale between them.
The accomplice need not know all the details of the offence. It is enough if he
knows such facts as they will indicate to him the particular type of offence intended
and which later committed. So as long as he knows that an offence of a particular type
will be committed, he need not know the targeted victim or object or which exact
offence of that type will be committed.
The requirements of mens rea apply even if the perpetrator has committed the
offence of strict liability.
If there has been a substantial variation from the abetted, procured etc course of
conduct, the abettor etc would not be liable unless he foresaw that the person might do
as he did. Further, the accomplice will be held liable for any act or omission done by
the person abetted etc in the course of endeavoring to carry out the common purpose.
Hence if the common purpose is to cause grievous bodily harm to someone, and in so
doing the targeted person is killed, both will be liable for murder. This is possible
under the doctrine of transferable malice.
What if the perpetrator has less mens rea than the accomplice? Knowing that as a
matter of principle secondary liability is derived from that of the principal, is it
possible to have a principal who has less mens rea that the accomplice? The answer to
this question is in the positive. This can happen where, for example, the accomplice is
aware of some circumstances which the perpetrator does not.
What if the perpetrator has a defense not available to the accomplice? The
respective liabilities of perpetrators and accomplices may vary where the principal can
avail himself of some defense not available to the accomplice, resulting, in some
cases, in the accomplice being convicted of the major offence, unlike the principal.
What about when the same results occur through unintended mode (e.g., death by
drowning instead of by beating.) Or where the principal makes a mistake of identity of
the victim. In all these circumstances, the doctrine of transferred malice will be used
and that all these factors will be irrelevant as far as the liability of the accessory is
concerned. What if the principal‘s acts are entirely different from what the accessory
contemplated? This can be the result of the principal deliberately deviating from the
agreed upon course of conduct. In that event, the accessory will not be liable because
the change of mind constitutes a voluntary intervening act and should sever all
155
connection between the accomplice‘s contribution and the principal‘s actual offence.
What if the principal deliberately commits a different and more serious offence? In
this case all that is required is to prove that defendants contemplated that there was a
real possibility that one member of the joint enterprise might go beyond their
agreement and do what he did.
What should be the position where the accomplice decides to withdraw from the
common design but the other person proceeds to perpetrate the offence? As a matter of
general principle where a person counsels etc another to commit an offence, it may be
possible for the counselor etc to escape liability. As to what exactly should be done
depends on the facts of each case. However, this may not affect his liability for
incitement or conspiracy or, if the withdrawal happen after the other has already taken
more than preparatory steps, for attempt to commit the crime. So if all that the person
did was merely to counsel or advise, he can merely communicate to the person to
desist from the offence so that the other is committing the crime without the former‘s
advise. Mere repentance without action is not sufficient. He has to effectively
withdraw from the commission of the offence. The withdrawal must be timely.
Withdrawal must also be voluntary. Hence, where a person has actually been arrested
it can‘t be said that the withdrawal is voluntary.
On the other hand if the common intention has started been effected, then the
duty on the accessory is quite onerous. He must do everything in his power actually to
prevent the commission of the offence. Hence as was stated in the case of R v Rook
[1993] 1 WLR 1005, ―a declared intent to withdraw from a conspiracy to dynamite a

building is not enough, if the fuse has been set; D must step on the fuse.‖
More controversy are cases where police or their agents sometimes do acts for
the purpose of getting evidence against offenders, which would certainly amount to
counselling or abetting an offence if they were not done for that purpose. This is called
entrapment. The difficult question is how far an officer may go without himself
incurring liability for the offence. As a matter o principle, law enforcement officers
have no general license to aid and abet crime. And hence, there is no defense of
entrapment.
3. Accessory after the fact (crime)
156
Throughout, we were examining the principles governing the criminal liability
of those involved in the commission of a crime (perpetrators) and the other persons
who, though not actual perpetrators of the offence, but whose actions put them within
the ambit of criminal liability, accessories before the fact. We now turn to examine the
principles applying to those who are involved after a crime has been committed:
accessories after the crime or fact. According to section 407 of the Code, an accessory
after the fact is a person who ―receives or assists another who is, to his knowledge,
guilty of an offence, in order to enable him to escape punishment.‖
It should be made clear at the very onset that an accessory after the fact is not a
party to the principal offence. He commits a different offence ―receiving or assisting
another…in order to enable him to escape punishment.‖ This is a specific offence
different from the principal offence. As a matter of fact, Division VIII of the Code to
which section 407 to 409 are located provides for a class of crimes, viz., attempts to
commit a crime, conspiracy to commit a crime and accessory after the fact And hence
technically it is possible for a person to face two charges: one under the principal
offence and the other under section 407 of the Penal Code. An accessory after the fact
is guilty of a felony or misdemeanor if he is an accessory to a felony or misdemeanor
respectively. This means that it is improper to discuss accessories after the fact under
the topic of parties to a crime.
CHAPTER TEN
DEFENCES
157
I. INTRODUCTION
Chapters 7 and 8 discuss the conduct element and mental element respectively of
a crime. But it is not always that a defendant who has committed the actus reus of an
offence with the requisite mens rea is held criminally liable for that offence. It is
possible for such a defendant to escape criminal liability if he satisfies the
requirements of any one of the ―defences‖ available in Malawian criminal law. For
example, if D intentionally kills a person who attacked him with the intention of
killing him (D), he will escape criminal liability for the murder because he (D) was
acting in self-defence. This Chapter discusses such defences as are available to
defendant who, but for the defence, would have been held criminally responsible for
their conduct.
II. CLASSIFYING DEFENCES

Defences to criminal liability may be either special or general. This is a
traditional way of classifying defences and one that is employed by different writers
and commentators on criminal law168. A ―special defence‖ is one that relates to one or
more of the elements of the actus reus of a ―particular‖ crime and, therefore, will only
apply to that crime. For instance, a defendant charged with the offence of rape can
raise a defence of lack of penile penetration. And since penile penetration is an
important element of an offence of rape169, he will escape liability. The defence of lack
of penile penetration is ―special‖ to the offence of rape. A special defence is,
therefore, one which challenges the prosecution‘s proof of the commission of the
crime by the accused by showing that one of the definitional elements of the crime has
not been proved. Such a defence is said to be a ―special defence‖ because it relates to
a special definitional requirement of the crimes charged. In contrast, ―general
defences‖ are those that may be raised to all crimes irrespective of the special
requirements of the actus reus. In this Chapter, we are concerned with
168 See for example, Smith and Hogan, Criminal Law CMV Clarkson and HM Keating Criminal
Law:
Text and Materials at p. 270
169 See Marriette v Republic 4 ALR Mal 119 (H.C.); Republic v Kaluwa 3 ALR Mal 359 (H.C.)
158
―general defences‖ and specific defences will be dealt with later when discussing
specific offences.
A chord of caution should be sounded, however, as far as the use of the

expression “general defences” is concerned. As will be seen when discussing the
specific offences later in the book, it is untrue that general defences apply to all
offences. General defences themselves have been categorised further into three
categories: those that justify the defendant‘s otherwise criminal conduct i.e.,
“justifications”; those that excuse his otherwise criminal conduct i.e., “excuses”;
and those that deny any criminal responsibility from the accused person, i.e.,
1
“exemptions.”
1
One of the most influential analysis of the difference between defences that are categorised as
“justifications” and those that fall into the category of “excuses” was provided by Paul Robinson,
Criminal Law Defences: A systematic Analysis” (1982) 82 Col.L.R. 199 at 213, 221, 229 when he said
that:
“[J]ustification defences are not alteration definition of the harm sought to be prevented or
punished by an offence. The harm caused by the justified behaviour remains a legally
recognised harm which should be avoided whenever possible. Under the special justifying
circumstances, however, that harm is outweighed by the need to avoid an even greater harm or
to further a greater societal interest…
Excuses admit that the need might be wrong, but excuse the actor…
Justifications and excuses may seem similar in that both are general defences which
exculpate the actor because of his blamelessness…The conceptual definition remains an
important one, however. Justified behaviour is correct behaviour which is encouraged or at
least tolerated. In determining whether conduct is justified, the focus is one the act, not the
actor. An excuse represents a legal conclusion that the conduct is wrong, undesirable, but that
criminal liability is inappropriate because some characteristic of the actor vitiates society ‟s
desire to punish him. Excuses do not destroy blame…rather, they shift it from the actor to the
extenuating condition. The focus in excuses is on the actor. Acts are justified; actors are
excused.
We now turn to examine the theoretical basis for each of these categories of defences.
159
1. Justificatory defences
Under a justificatory defence the law allows the performance of a prohibited
conduct and with the requisite mental element if, by reason of the circumstances of the
defendant at the time of the performance of the prima facie wrongful act, there were
sufficient reasons to perform the act. As one commentator had said, ―a defence is
justificatory whenever it denies the objective wrongness of the act.‖ A person who
raises a justificatory defence does not deny the commission of the prohibited conduct,
he, however, provides justificatory reasons for the doing of the prohibited act. And
neither does a justificatory defence deny the wrongness of the act: all what it does is to
say that in the circumstances of the defendant at the very specific time of committing
the act, there were justifying reasons for its doing.1
1
In the words of John Gardner, “Justifications and Reasons” in Simester and Smith (eds) Harm and
Culpability (1996) pp. 107 – 108 (Quoted from Clarkson et al, at p. 273) that:
In classifying some action as criminal, the law asserts that there are prima facie reasons
against its performance–indeed reasons to make its performance prima facie wrongful. In
providing a justificatory defence the law nevertheless concedes that one may sometimes have
sufficient reason to perform the unlawful act, all things considered…
The reasons against the action, which are the reasons for its criminalisation, may all
have been defeated in the final analysis. It may have been alright for the defendant to act
against them, all things considered. But it does not mean that they dropped out of the picture.
That a reason is defeated does not mean that it is undermined or cancelled. It still continues
to exert its rational appeal. It may indeed be a matter of bitter regret or disappointment that,
thanks to the reasons which justified one‟s action, one nevertheless acted against the prima
facie reasons for avoiding that action. It may even be a matter of regret or disappointment to
the criminal law. The law certainly need not welcome it. But by granting a defence the law
concedes that any regret or disappointment must be tolerated…By granting a justificatory
160
defence the law concedes that this is true by virtue of the fact that the defendant had, at the
time of her prima facie wrongful action, sufficient reasons to perform it.
There are five justificatory defences in Malawian criminal law, viz., selfdefence,
necessity, official capacity (or public authority), chastisement and consent. These
defences will be examined below.
2. Excusatory defences
According to Paul Robinson, ―[a]n excuse represents a legal conclusion that the
conduct is wrong, undesirable, but that criminal liability is inappropriate because some
characteristics of the actor vitiates society‘s desire to punish him.‖ A defence is
excusatory even when it is unjustified. There is no single test or rationale for excuses.
The Golden thread that runs through excusatory defences is the presence of
circumstances that exonerate the defendant from some moral blameworthiness 170.
Unlike with justifications that focus on the conduct of the defendant, excuses focus on
the defendant himself. It is accepted that excuses are not a denial of criminal
responsibility.
170 Victor Tadros, “The Character of Excuse” (2001) 21 O.J.L.S. 495 at 498 (Quoted from CMV
Clarkson at p. 277) that:
In fact, I would suggest that there is no single gist of excuses. The criminal law is
supervised by a multitude of principles. In arguing that one has an excuse, one attempts to
show that whilst one‟s action was wrongful, the principles of criminal law would not be
served by imposing criminal liability. Excuses, then, mop up exemptions, offence definitions
and justifications would lead to conviction in inappropriate cases. That may be because the
defendant came within the standards of reasonableness that the law expects. But it may also
be because the defendant underwent a fundamental, and reasonable, shift in character before
committing the wrongful act. Or it may be because the defendant only exhibited a vice that
is inappropriate target for criminal liability. Or it may be for some other reason, say because
the defendant was, beyond her control, placed in a situation in which she was deprived of a
fair opportunity to make her behaviour conform to the criminal law. in my view, that is as
much as can be said for the gist of excuses.
161
The following can be identified as excusatory defences: mistake, duress,
provocation, intoxication and, lastly, necessity (where the harm threatened in equal
to the harm caused.)
3. Exemptions
Under exemptions, a defendant lacks a basic responsibility for his or her actions.
This happens where the defendant ―lacks of practical reasoning skill or where the
actions are not amenable to intelligible rational explanation.‖ Defences that qualify as
exemptions include lack of age (or immaturity), insanity, diminished
responsibility and automatism.
4. Why the distinction?

The distinction between justifications, excuses and exemptions has both
theoretical as well as practical consequences. Key to the understanding of the effect of
defences on criminal liability and the very parameters of the defences is categorisation
of defences either as justifications, excuses and exemptions. For instance, approaching
self-defence as an excuse, and not as a justification, informs how the requirements of
the defence are to be framed. The theoretical importance of the classification,
therefore, cannot be overestimated.
Besides its theoretical importance, the classification has other practical

importance and the following are some of them:
(a) Consider the following example: D is attacked by murderous

robbers in the middle of the night. In trying to escape, he enters into C‘s house in
circumstances which satisfies the offence of burglary as provided under sections
308171 and 309 of the Penal Code. Suppose also that D acted in self-defence and all
the requirements for the offence of self-defence are satisfied. Will D be charged
with the offence of burglary under sections 308 and 309 of the Penal Code? The
171 Section 308 of the Penal Code provides in part as follows:
A person who breaks any part, whether internal, or external, of a building, or opens by
unlocking, pulling, pushing, or any other means whatever, 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 passage of a building to another, is deemed to break the building.
162
answer to this question depends on whether the defence of self-defence is
categorised as a justificatory defence or as an excusatory defence.
(b) Conduct that is justified is in effect ―approved‖ or accepted and,

for that reason, there is no need to prevent its re-occurrence. Killing in self-defence
is justified and a person who kills in self-defence is not prevented from killing
again and again as long as all the requirements of the defence are satisfied in each
and every time the defence is raised. On the other hand, where conduct is excused
or exempted, there are good reasons for the society to put in place mechanisms to
protect itself from the repetition of such conduct. For instance, a person who
successfully pleads the defence of insanity will be committed to a mental hospital
even though he is not guilty of the offence charged172.
III. JUSTIFICATORY DEFENCES

A. Self-defence
1. Introduction
Most of modern legal systems restrict an individual‘s right to self-help in order to
maintain law and order and also to protect the weak. So even where an individual is
clearly wronged, the law expects the person to go to the court for a declaration that a
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…
172 Section 135 of the Criminal Procedure and Evidence Code reads:
(1) Where any act or omission is charged against any person as an offence, and it is given in
evidence on the trial of such person for that offence that he was insane so as to be not
responsible, according to law, for his actions at the time the act was done or omission made,
then, if it appears to the court before which such person is tried that he did the act or made the
omission charged but was insane as aforesaid at the time when he did or made the same, the
court shall make a special finding to the effect that the accused is not guilty by reason of
insanity. When such special finding is made the court shall make a reception order for the
admission of the accused to a mental hospital and, the court may, if it thinks fit, make a further
order, with or without limitation of time, restricting his discharge from such mental hospital
without the sanction of the minister.
(2) …
163
wrong has been committed and for the court to impose legal remedies. As an exception
to this general principle, there are restrictively defined circumstances in which an
individual who faces a ―felonious‖ attack is afforded a right to use force (sometimes
even deadly) to defend himself or his property. In doing so, the law takes a pragmatic
approach by realizing that it is virtually impossible for the state to provide protection
to all persons and at all times whenever they need such help. To expect a person who
has been attacked by criminals at his home in the middle of the night to wait for
official help is to court disaster: such a person should be allowed to use whatever is in
his power to protect his person, property and those under his care. Lawyers commonly
refer to this principle as a defence of self-defence. A person acts in self-defence if he
defends himself or somebody against an unjustified attack on his or another‘s life,
limb or property. Considering the range of interests protected by the defence of self-
defence, the description is narrower since it is not only persons who defend themselves
but also the defence of others, the protection of property, prevention of crime and the
arrest of suspected offenders
The defence of self-defence has been one of the central principles of the English
common law for centuries. It was ploughed into the Malawian criminal law through
section 17 of the Penal Code that provides as follows:
Subject to any express provisions in this Code or any other law in operation in
Malawi, criminal responsibility for the use of force in the defence of person or
property shall be determined according to the principles of English common law.
By reason of the section, our criminal law has incorporated the principles upon which
the defence of self-defence is based under the English common law.
2. Justifying self-defence
There are a number of justifications for the defence of self-defence. Firstly, it has
been said that the defence of self-defence is based on the very idea of individual
autonomy, i.e., the very right to life and physical safety. This gave way to the principle
that an individual who is attacked or threatened with serious physical attack should be
at liberty to repel that attack, thus preserving his or her fundamental rights to life and
physical integrity. Hence, even though the society has the primary duty of
safeguarding the safety and physical integrity of its members, the reality of the
situation is that the society cannot provide such protection at every time and all times
164
when an individual is subjected to an unjustified attack. For sure our law would be
failing in its duties of protecting people if it did not recognise such a need.
The second view traces the source of the right to self-defence to a ―comparison
of the competing interests of the aggressor and the defender, as modified by the
important fact that the aggressor is the party responsible for the fight…As the party
morally at fault for threatening the defender‘s interests, the aggressor is entitled to
lesser consideration in the balancing process.‖173 According to Gardner, the underlying
rationale of the defence of self-defence is that fact that ―the defendant had, at the
time of her prima facie wrongful action, sufficient reason to perform it.‖174
There is a view that says that self-defence is not really a ―defence‖ because a
person who acts in self-defence is acting lawfully, a fact which excludes an element of
the actus reus is not thus not established. For instance, if we take the definition of the
offence of murder in section 209 of the Penal Code, a person commits the offence of
murder if he ―causes the death of another person by an unlawful act or omission…‖
But self-defence is not ―an unlawful act” and, thus, a person who causes the death of
an aggressor whilst acting in self-defence acts lawfully thereby excluding an important
element of the actus reus of the offence of murder as defined in section 209 of the
Penal Code. Regardless of whether the defence is characterised as a defence or a
denial of a definitional element of an offence, the effect and parameters of the defence
remain the same.
3. Crimes to which self-defence applies

Under Malawian criminal law, the defence of self-defence is available to the
offence of murder and other non-fatal offences against the physical integrity of a
person which include many of the offences in Chapter XV of the Penal Code175,
173 Fletcher, Rethinking Criminal Law (1978) pp. 857 – 858
174 Gardner “Justifications and Reasons” in Simester and Smith (eds) Harm and Culpability (1996)
103 at p. 108
175 Chapter XV of the Penal Code includes what are called “Offences Against Morality” and
offence to which self-defence would be a defence under the Chapter include rape, defilement,
abduction, indecent assault, detention with intent in a brothel, unnatural offences and indecent
assault of boys under fourteen.
165
4. Threat of unjustified attack
In a straightforward self-defence scenario an innocent person is attacked by an
unjustified aggressor and this triggers the right to a self-defensive action. Though not
yet considered by Malawian courts, an attack is unjustified when it is not sanctioned
by the law which includes statutory law, common law and customary law. However,
the attack need not be unlawful: as was explained by Ward L.J. in Re A (conjoined
twins: surgical separation)176 that:
The six-year-old boy indiscriminately shooting all and sundry in the school
playground is not acting unlawfully for he is too young for his acts to be so
classified. But is he ‗innocent‘ within the moral meaning of that word? ...I am
qualified to answer that moral question…If I had to hazard a guess, I would
venture a tentative view that the child is not morally innocent. What I am,
however, competent to say is that in law killing that six-year-old in self-defence
of others would be fully justified and the killing would not be unlawful.
The same principle can be said to apply when a person is attacked by an insane person
or a person in automatism. If one acts in self-defence against an insane person or a
person under automatism he cannot be said to be acting unlawfully even though the
actions of the attackers are not themselves unlawful.
What about a child who is being chastised by its parent, can it act in selfdefence?
What about bodily harm inflicted under certain customs, for instance, an attack by a
nyau dancer who seems to have a prerogative to violence or circumcision? There is a
plethora of authority for the rule that a plea of self-defence is only available if the
accused person is unjustifiably attacked or threatened with an unjustified attack. As
has been emphasised by our courts of law, the accused person must be attacked and he
or she must be defending himself177. Though the attack need not be unlawful, however,
the defence of self-defence is not available when an attack is lawful. Thus a person
may not defend himself against a lawful arrest or an attack which is itself justified by
necessity. A person who has attacked another prompting him to act in self-defence
cannot himself claim self-defence.
176 [2001] Fam. 146 (C.A.)
177 Lufazema v Republic 4 ALR Mal 415 (S.C.A.); Chitowe v Republic 8 MLR 34 (H.C.)
166
There is a proposition that the accused person must not be the aggressor. But this
proposition is not entirely correct because it takes no account of the chance medley
where neither party can be said to be an aggressor. Further, it is possible for an initial
aggressor to act in self-defence. For instance, X slaps Y in the face and Y retaliates by
taking a machete and descends on X with clear murderous intent. In these
circumstances, X will be entitled to defend himself.
The attack may be actual or apprehended. A person who strikes a pre-emptive

blow where there is reasonable anticipation of an attack can avail himself of the
defence. As was stated in Kaipa v Republic1 that:
Moreover, if the ‗excess of self-defence‘ doctrine is good law, it applies not only
to an actual felonious attack but to one which is reasonably apprehended. It
cannot invariably be said that when acting in self-defence a man must wait for an
opponent to deal a potentially mortal blow. If a man is approaching me in a
decidedly threatening manner, I do not necessarily have to wait for him to strike.
It may be that the only way of dealing with the situation is to strike first. If, in
such circumstances, I do no more than is reasonable, I may be justified and
acquitted.
This principle is best illustrated by the facts of Chitowe v Republic2 the facts of which
are as follows: the appellant was awoken in the middle of night by the sound of his
dogs barking. The roof, door and windows of his house were stoned and windows
were broken. He armed himself with a panga and went outside where he met the
complainant in the case also carrying a panga. He questioned him and the complainant
threatened the appellant. When the complaint started to run away the appellant chased
him and stabbed him twice in the back and shoulder. He was convicted of unlawful
wounding. On appeal, the court considered the application of the defence of
selfdefence. It was held that the defence of self-defence applied. The court stated that
even though the accused person would be expected to just chase the complainant,
considering the time of the night when the incident happened, the conduct of the
complainant and the real fear that he had, the complainant was justified to not only
chase the complainant but to even stab him.
5. Defence of whom?
167
In clearest cases, a person who raises the defence of self-defence would have
been acting in the defence of the self or his or her property. But the defence goes
1
3 ALR Mal 142
2
8 MLR 34 (H.C.)
further than that. Historically at common law, a person would claim self-defence only
if he were acting to defend himself or a relative: and a relative for whom one could
intervene for was restricted to husband and wife, parent and child or master and
servant. In R v Duffy1 the Court of Appeal held that apart from the any special
relationship that may exist between the person attacked and the rescuer, there is a
general right, even as between strangers, to prevent the commission of an offence. One
is therefore allowed to act in the defence of a stranger who has been unjustifiably
attacked. Accordingly, a person who responds to the cries of a person being attacked
by thieves can successfully plead self-defence against any charge that may arise out of
his actions in trying to rescue the stranger. This principle was accorded judicial
endorsement by the High Court of Malawi in the case of Nyuzi and another v
Republic.2
6. The duty to avoid

Courts of law have held that an accused person must retreat in order to show that
he had no intention to fight and attacked his assailant when retreat was no longer
possible.3 In the words of Tredgold, F.C.J. in Zabroni v R.4 that:
…[I]t is required that the person attached shall retreat in so far as he safely can,
that he shall not have any intention to kill or harm grievously except such as is
involved in the wish to defend himself, that what he does should really be done
in self-defence and not in participation in a fight, and that the means adopted
were reasonable.
So, if it is possible to escape from the attack by retreating then it is unnecessary and
unreasonable to use defensive force.
English law used to insist that one must ―retreat to the wall‖ before extreme
force could be justified. This meant that the use of extreme or deadly force should be
the very last option open to the accused person. But this strict approach has been
discarded and in R. v Julien the law was stated as follows:
168
1
[1967] 1 Q.B. 63 (C.A)
2
4 ALR Mal 249
3
See Kaipa v Republic 4 ALR Mal 142, Chitowe v Republic 8 MLR 34
4
1 ALR Mal. 353
It is not, as we understand it, the law that a person threatened must take to his
heels and run in a dramatic way suggested…but what is necessary is that he
should demonstrate by his actions that he does not want to fight. He must
demonstrate that he is prepared to temporise and disengage and perhaps to make
some physical withdraw and to the extent that that is necessary as a feature of the
justification of self-defence, it is true in our opinion, whether the charge is
homicide or something less serious.
However, the duty to retreat does not apply if a person is attacked at home or the
reason a person is expected to feel safe at least at his home and if he is forced out of
his house then where else can he feel safe. 178 Further, a person does not have a duty to
retreat if it would mean leaving his family or friend in danger.
7. Self-defence and criminal liability

A person who is acting in self-defence is acts lawfully and for this reason an
element of the actus reus is not established. In other words, the actus is not reus179.
8. Self-defence and the right to life

In many of the self-defence cases the alleged aggressor is killed. How can this
killing which is currently held to be justified be reconciled with the constitutional right
to life in section 16 of the Constitution? The section reads as follows:
Every person has the right to life and no person shall be arbitrarily deprived of
his or her life:
Provided that the execution of the death sentence imposed by a competent court
on a person in respect of a criminal offence under the laws of Malawi of which
he or she has been convicted shall not be regarded as arbitrary deprivation of his
or her right to life.
178 See D.L. Lanham, “Defence of Property in the Criminal Law” [1966] Crim L.R. 368
179 Abraham [1973] 1 W.L.R. 1270; Williams (Gladstone) (1984) 78 Cr.App.R. 276
169
The message of the section is very much clear ―everyone has the right to life and no
person shall be arbitrarily deprived of his or her life.‖ A proviso to the section provides
as an exception to the right to life the execution of a death sentence duly imposed by a
court of law in respect of a criminal offence.
If compared with the Article 2 of the European Convention on Human Rights 1

that recognises self-defence as an exception to the right to life.
One way of going through this problem is to try to place self-defence as a

limitation to the right to life under section 44 (2) of the Constitution. The problem with
such an approach is that section 44 (1) lists the right to life as non-limitable.
9. The necessity for a defensive action

It is trite that Malawian law recognises the right to protect both personal and
proprietary interests and, to that end, one can use force to repel an attack that threatens
personal and proprietary interests. As is clear to the discussion on selfdefence above
and as will become clear in our continued discussion below, that there are restrictions
as to the circumstances in which the defence of self-defence can be used. One of such
restrictions is that the use of force must be necessary to avert the attack that one faces.
In other words, the necessity must be judged according to the lawful purpose that the
defendant was trying to pursue. Hence if it is for self-defence, it must be purely for
defensive purposes. A court will examine such issues as the defendant‘s purpose and
whether the conduct could be said to be necessary for the purpose.
What if the defendant mistakenly believes that he is about to be attacked when in

fact there is no attack or any threat of an imminent attack? In England, it used to be the
position at common law that the defendant would only escape liability if his
1
Article 2 of the European Convention on Human Rights provides as follows:
(1) Everyone‟s right to life shall be protected by law. No-one shall be deprived of his life
intentionally save in execution of a sentence of a court following a conviction of a crime
for which this penalty is provided by law.
(2) Deprivation of life shall not be regarded as inflicted in contravention of this article when
it results from the use of force which is no more than absolutely necessary:
170
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or prevent the escape of a person lawfully detained; (c)
in action lawfully taken for the purpose of quelling a riot or insurrection.
See Buxton R, “The Human Rights Act and the Substantive Criminal Law” [2000] Crim.L.R. 31
mistake was a reasonable one.180 This position was abandoned and the current position
is that the defendant‘s mistake need not be reasonable and that he has to be judged
according to his view of the facts.181 The High Court in the case of Chitowe v Republic
considered the question and concluded as follows: firstly, the court held that the
question whether the defendant genuinely believed that his (or another‘s) life, limb or
property was threatened must be examined subjectively and, secondly, the question
whether the plea was reasonable must be determined by the application of an objective
standard external to the applicant. The first question relates to the necessity of any
defensive force whilst the latter relates to the amount of responsive force that may be
used, a point which is examined below.
This takes us to a story that happened in Bangwe Township of the city of

Blantyre. A section of the township had been experiencing a spate of violent (and
often fatal) crime for sometime. Early one morning, a person woke up to a sound of a
person running outside his house. He came out to find a person running around his
house. Mistaking him for one of the criminals that had been terrorising the area, he
struck him with a panga knife which he had carried with him when he was coming
outside. The person turned to be a son of a neighbouring house who was out for an
early morning physical exercise. If one follows the approach of the court in Chitowe
case, then the plea of self-defence will be upheld by the court because the actions of
the person must be judged according to the person‘s view of the facts. Living in an
area where criminals have held people‘s lives and property under siege and working
up at night to find a person running around one house would make anyone act
defensively. Under if the other requirements for the defence of self-defence are held to
be satisfied, he will escape liability. He thought that force was necessary, and on that
basis the first requirement is satisfied. This will be the case even if a reasonable person
would not have perceived the presence of any threat, actual or immediate.
180 See Rose (1884) 15 Cox 540; Albert v Lavin [1982] A.C. 546
181 See Williams (Gladstone) (1984) 78 Cr.App.R. 276; Beckford [1988] 1 A.C. 546
171
The most controversial issue is one involving the belief in witchcraft. In a society
in which the belief in witchcraft is rife, there have been a number of cases in which a
person kills another believing that the deceased has powers of witchcraft and is about
or intends to kill him. Courts
10. The amount of responsive force used

For one to successfully establish the defence of self-defence, it must be
established that his course of conduct was, not only necessary, but also reasonable in
the circumstances. The general rule is that the response must be proportionate to the
attack. For most people, a person who is slapped and respond by cutting of a throat of
the assailant would be condemned as having acted disproportionately. In the same
way, a person who is being stoned by a seven-year-boy who responds by shooting the
boy with a gun will be condemned. Our sense of fairness and justice would demand
that persons who act in a manner exemplified above should not avail themselves of the
defence of self-defence.
It has been said that this requirement incorporates an aspect of respect for the
rights of the attacker in self-defence cases. As was stated by one author that ―[t]he
initial aggressor, in making the attack, is culpable and deserves to forfeit some of his
rights but he does not sacrifice every right.‖ 182183 And as was stated by Lord Woolf C.J.
in R v Martin184 that:
[It has been accepted in the law of provocation that the jury is] entitled to take
into account some characteristic, whether temporary or permanent, which
affected the degree of control which society would reasonable expect of the
defendant and which it would be unjust not to take into account.
Is the same approach appropriate in the case of self-defence? There are policy
reasons for distinguishing provocation from self-defence. Provocation only
applies for murder but self-defence applies to all assaults. In addition,
provocation does not provide a complete defence; it only reduces the offence
from murder to manslaughter. There is also the undoubted fact that self-defence
182 Clarkson CMV and another “Criminal Law: Text and Materials” 5th Edition, Sweet & Maxwell,
183 at p. 311
184 [2002] 1 W.L.R. 1 (C.A.)
172
is raised in a great many cases resulting from minor assaults and it would be
wholly disproportionate to discourage medical disputed in cases of that sorts.
A person is allowed to use such force as is reasonably proportionate to the harm

as he believed to be present and in the circumstances as he believed them to be. For
the avoidance of doubt, and unlike the first test, this is an objective test. It follows the
subjective test in the sense that if a person believes that he is being attacked or faces an
imminent attack (a determination of which uses a subjective test) he will be allowed to
use such force as is reasonable and proportionate (a determination that uses an
objective test) to the circumstances he believed them to be. The personal beliefs of the
accused person (representing the subjective test) are relevant in the determination of
whether there existed an attack or a threat of an imminent attack. On the other hand,
the question as to what force is to be used in response to the perceived attack will be
determined by applying an objective standard. This is the position both under English
common law and followed by courts of law in Malawi. As was stated in the Chitowe
case:
… [T]he genuineness of the plea of an accused person that his life is threatened
must be examined subjectively. The reasonableness of the plea must be
determined by the application of an objective standard external to the individual.
The English common law follows a fairly rigorous and objective test of
reasonableness. What amounts to reasonable force is usually a question of fact. 185 This
has been interpreted to mean that for offences against the person, deadly force will be
justifiably used and permitted by the law for life-threatening attack and in respect of
crimes of extreme seriousness.
B. Official Capacity (Public Authority)

1. General
The second justificatory defence is that of official capacity or public authority.
An act which would otherwise be unlawful is justified if a person, acting under official
capacity or in exercise of public authority, performs it. For that reason, whilst
possession of prohibited drugs is an offence, a court clerk whose duty is to keep
exhibits for the court is not guilty of the offence of unlawful possession of drugs which
185 Attorney General for Northern Ireland‟s Reference
173
he is keeping under his official capacity. In the same way, a police officer who
confiscate as prohibited weapon in terms of a court order or whilst executing his
official duties is not guilty for the offence under the Firearms Act. What all this means
is that if a government official acts in his official capacity, his otherwise unlawful act
is justified by his official capacity. This is a principle that should not occasion much
controversy.
Problematic however are cases where the official exceeds his official duties or,
as is sometimes put, is acting outside the scope of his employment. There is a need for
our courts of law to resolve certain questions surrounding the defence of official
capacity. Firstly, what should be the position if the public official employs an
unauthorised mode of doing his official duty? For instance, a public official who
exceeds the speed limit in his official vehicle whilst doing official duties – is he liable
under the Road Traffic Act? What if a public official allows another person to act on
his behalf?
It should be mentioned that the defence of official capacity applies only to public
servants discharging public duties.
C. Chastisement
1. General
It is an established principle of the common law that parents are entitled to take
reasonable measures to discipline their children, including the use of moderate
physical punishment. In the recent case of Smith186 the continued application of the
principle has been affirmed by the Court of Appeal in England. In the case, the court
held that in order to sustain a charge of assault against a parent who claims the defence
of chastisement, the prosecution must prove that the defendant ―did more than inflict
moderate and reasonable chastisement on the child.‖
The defence was indirectly acknowledged as applicable to Malawi in Nyirenda v

Republic187 in which the Supreme Court of Appeal quoted the authors of Archbold,
Criminal Pleading, Evidence & Practice, 36th ed., at 930, para. 2510 (1966), where it
was stated as follows:
186 [1985] Crim. L.R. 42
187 (1968 – 70) 5 ALR Mal 249 (S.C.A.)
174
Where a parent or person in loco parentis is moderately correcting his child…
and he happens to occasion his death, it is only misadventure; but if he exceeds
the bounds of moderation, either in the manner, the instrument, or the quantity of
the punishment, and death ensues, it is manslaughter at the least, and in some
cases (according to the circumstances) may be murder…
In all case where the correction is inflicted with deadly weapon and the party
dies of it, it would be murder; if with an instrument not likely to kill, though
improper for the purpose of correction, it will be manslaughter.
Even without official statistics, it can be confidently asserted that chastisement is

applied by many parents in Malawi. However, the continued application of the
principle needs to be re-examined against the backdrop of two recent developments.
Firstly, the 1994 Constitution of Malawi provide entrench the rights of children and in
section 23 (4) provides that:
Children are entitled to be protected from economic exploitation or any

treatment, work or punishment that is, or is likely to—
(a) be hazardous;
(b) interfere with their education; or
(c) be harmful to their health or to their physical, mental or spiritual or social
development.
The section requires the protection of children from ―any treatment…or punishment‖
that may be hazardous or that may be harmful to their health or to their physical or
social development. There is no doubt that the protection that the section affords to
children extend to the treatment or punishment that they may receive in their homes.
The Malawi Government‘s interest in the area of children protection and development
confirms this conclusion.
Secondly, Malawians are more and more aware of cruelty that has been
happening to children in homes.
2. Chastisement of teachers
It is clear that the right of chastisement extends to guardians. However, does it
extend to teachers? In light of section 19 (4) of the Constitution, the answer should be
negative. The section provides as follows:
175
No person shall be subject to corporal punishment in connexion with any judicial
proceedings or in any other proceedings before any organ of the State.
And the question is: is chastisement corporal punishment?

The Education Act provides that…
D. Consent
1. Introduction
It should be pointed out at the very onset that consent is relevant in those crimes
which a specific individual can be designated as the victim or complainant. It plays no
part to those crimes which are, in principle, victimless but are committed against the
community in general or the state, such as offences in Divisions I, II, III and VII of the
Penal Code. And in those crimes where an identifiable individual is designated as a
victim, consent becomes relevant at three different levels. At the first level, there are
certain crimes that are defined in such a manner that they can only be committed
without the victim‘s consent. Rape is a classical example of such a crime: it is defined
by section 132 as ―unlawful carnal knowledge of a woman or girl, without her
consent…‖ In this case, the absence of consent by the victim is a definitional element
of the offence of rape. A person who is charged with the offence of rape and who
claims that the alleged victim actually consented to the sexual intercourse is not
pleading consent as a defence, but rather he is claiming that one of the elements of the
actus reus of rape, the absence of consent to the sexual intercourse, is missing. He is in
no different position from a person who pleads that penetration, (another essential
element of the actus reus of rape,) did not take place. I short, in crimes that require the
absence of consent on the part of the victim consent is not a defence. Another offence
where consent of the victim if a definitional element of the crime is that of abduction
of a girl under the age of sixteen as provided for in section 136 188 of the Penal Code.
The victim of an offence under the section is the parent or guardian of the girl. And
consent to the taking of the girl on the part of a parent or guardian will exclude
188 Section 136 of the Code provides as follows:
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, shall be guilty of
a misdemeanour.
176
liability just because one of the definitional elements of the offence has not been
proved by the prosecution.
At the second level, there are a number of crimes in the Penal Code that are
defined in such a manner that even the consent of the victim does not excludes
liability. Malawian criminal law, obviously following the approach of the English
common law, does not permit a person to consent to being murdered or maimed.
Section 245 of the Penal Code is the relevant provision and reads as follows:
Notwithstanding anything contained in section 244 consent by a person to the

causing of his own death or his own maim does not affect the criminal
responsibility of any person by whom such death or maim is caused.
The wording of the section is clear: a person cannot consent to his own murder or
maim. ―Maim‖ is defined by section 4 of the Penal Code as meaning ―any
destruction or permanent disabling of any external or internal organ, membrane or
sense.‖
It is, however, clear from the wording of section 245 that criminal liability would
be excluded where the victim of an assault has consented to it and the assault does not
occasion either murder or maim. This position is buttressed by the wording of section
244 that reads as follows:
Any person authorised by law or by consent of the person injured by him to use
force is criminally responsible for any excess, according to the nature and quality
of the act which constitutes the excess.
The section allows consent as a defence to any charge where force is used but subject
to the condition that no excess force is used. However, the consent that section 244
allows to a person is limited by section 245 of the Code in the sense that the person is
not allowed to use excess force.
Good examples of cases where a person may authorise the use of force against
him and where such consent operates as a defence include sporting activities,
handshakes, haircut, cultural or religions ceremonies and many other social events
where force is used against other people present. A person who extends his hand to
another for a handshake consents to the use of force by the other against him in the
normal way a handshake is done. But if the other person uses excessive force against
the other person so as to dislocate the shoulder joint would be held criminally liable
177
for the assault. In other words, consent is a valid defence in regard to injuries sustained
during innocent and friendly social interactions, provided the force used is not
excessive.
But before consent can become a valid defence a number of requirements must
be satisfied.
2. Requirements for a valid consent

In those offences where consent is a defence and those which are defined in such
a manner that lack of consent is a definitional element of an offence, the consent given
will only be accepted if it meets the following requirements:
(a) The person giving consent must have the capacity of forming a will.
Capacity to form a will is distinct from capacity to form a contract or criminal
responsibility. It means that the person must have the mental capacity not only to
know the nature of the act to which he or she is consenting, but also to appreciate its
consequences. A person who is mentally ill, drunk, asleep or unconscious cannot give
a legally valid consent. In pursuance of its paternalistic elements, Malawian criminal
law provides for an irrevocable presumption that girls under certain ages re incapable
of giving valid consent to certain sexual acts. Firstly, under section 136 of the Penal
Code a girl under the age of sixteen is incapable of forming a valid consent to her
being taken away from the custody or protection of her parents or guardians. 189
Secondly, under section 138 (1) of the Penal Code190, a girl under the age of thirteen
years is at law incapable of giving a valid consent to the sexual intercourse. Even if
Any person who unlawfully taken 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, shall be guilty of
a misdemeanour.
See
190 Section 138 (1) reads:
years shall be guilty of a felony and shall be liable to imprisonment for life…”
See Luwishi v Republic 1 ALR Mal 982
178
she ―consents‖ to the sexual intercourse, the offence of defilement will still be
committed.
(b) The consent must be given voluntarily, without any coercion. If D

brandishes a knife while asking a woman to have sex with him and the woman
―consents‖ to the sexual intercourse because she feels threatened, there is no valid
consent to the sexual intercourse. As is usually said, submission is different from
consent. In the case of rape, for example, it is possible for a woman to submitted to the
sexual intercourse without consenting to it, for instance, where she realises that it is
futile to resist the attacker and therefore acquiesces. In the same way, if an employer
asks an errant employee to choose between undergoing corporal punishment and being
sacked and the employee opts for corporal punishment because he does not want to
lose his job and face the consequent economic problems, his ―consent‖ to the assault
is not given voluntarily and thus, not valid.
(c) The consent may be given either expressly or tacitly and the question
whether consent was actually given is a question of fact depending on the facts of the
case. A football player needs not before each game give every of the opposing players
express consent to tackle him.
(d) The consent must be given before the otherwise unlawful act is committed.
Approval given afterwards does not render the act lawful.
(e) In principle, the consent must be given by the complainant, but it

exceptional circumstances someone else may give consent on his or her behalf, as
where a parent consents to an operation to be performed on his or her child.
IV. EXCUSATORY DEFENCES

A. Mistake of fact
1. Introduction
The law distinguishes between mistakes of fact and mistake of law. In this
section we are concerned with mistake of fact. Mistake (or ignorance) of the law will
be considered below. Section 10 of the Penal Code is the enabling section for the
defence of mistake of fact. The section provides as follows:
A person who does or omits to do an act under an honest and reasonable, but
mistaken, belief in the existence of any state of things is not criminally
179
responsible for the act or omission to any greater extent than if the real state of
things had been such as he believed to exist.
But not all mistakes of fact are accepted defences in criminal law. As a matter of
general principle, in order for a mistake of fact to be considered as an excusatory
defence to a criminal charge, a mistake must relate to a material requirement of the
crime charged. And a fact is material if it is contained in the description of the
prohibition or if it relates to the unlawfulness of the act. One should therefore always
first look at the description of the prohibition of the particular crime before deciding
whether the mistake alleged by the defendant is one that can be accepted as a defence.
This point must be explained better by considering a number of scenarios:
(a) The prohibited conduct for the offence of murder is defined in section 209
of the Code as a causing death ―of another person by an unlawful act or omission…‖
The object of murder is ―a person.‖ 1 D thinks that he is shooting a hyena whereas he
is in fact shooting a human being. He has made a mistake of fact; that mistake of fact
relates to the object of his conduct; and the mistake touches on the definitional
element of the offence of murder, i.e., causing death of ―another person.‖
(b) D intending to shoot X makes a mistake as to the identity of the victim and
shoots Y. He has made a mistake of fact. But his mistake does not relate to the object
of his action: he intended to kill a human being and has killed (albeit mistakenly)
another human being not intended. His mistake is not material because it does not
relate to material requirement of the crime of murder. The mistake need not be one as
to ―some quality‖ of the definitional element but it must be as to the very ―existence
as to the state of things.‖
(c) D is driving a vehicle and, intending to stop at a zebra crossing, puts his
foot on the accelerator mistaking it for the brake causing the car to accelerate killing a
pedestrian. It is clear that D has made a mistake of fact but his plea for the defence of
mistake will not be accepted by the court because his mistake is not material to the
description of the offence of causing death by reckless driving.
2. Mistake, actus reus and mens rea

As noted above, for most crimes the defendant must have mens rea in relation to
all elements of the actus reus. When a person has made a mistake as to one of the
180
definitional elements of the offence, such a mistake negatives the defendant‘s mental
element in respect of that element of the actus reus.
3. Requirements for the defence of mistake

(i) Honest mistake
(ii) Reasonable mistake

Section 10 of the Code requires that the mistake must not only be ―honest‖, it
must also be ―reasonable.‖ Section 10 of the Code does not mention any particular
standard to which a person must be measured against in deciding whether his or her
mistake is reasonable or not. However, in Lufazema v Republic2 the Supreme Court
1
See section 216 of the Penal Code
2
4 ALR Mal 415
of Appeal settled the matter when it held that what is reasonable must be decided by
having regard to the ordinary man in the community of the defendant. In the words of
the court:
Understandably, while the English courts inevitably relate reasonableness to the

norm of the homogeneous English community, in England, it seems to us
impermissible to transpose that norm to the inhabitants of another country in
another continent, at widely different stages of development, education and
scientific knowledge. While the English community in England may,
compendiously, be related to the average man in the English street–a ―common

man‖–as yet, in this country, no such homogeneity has been achieved, but groups
of different communities exist, some urban some rural, unequal in education,
culture and beliefs. The true criterion, therefore, must be restricted to the
notional ordinary man of the community to which the accused person himself
belongs. Although, ob majorem cautelam, this norm is enacted into s.214 of the
Penal Code as a touchstone for the assessment of provocation, it is implicit
generally in the Penal Code.
What the court is proposing here is that if a person honestly believes in the existence
of a state of affairs, the question whether the mistake is reasonable should be
181
determined by considering how a an ordinary person from the defendant‘s community
would have believed.
The facts of the case are significant and illustrate better the application of the
principle. The appellant killed his grandfather in the belief that the latter was causing
for the death and insanity in the appellant‘s family through witchcraft. According to
him own belief, he (the appellant) was the next to be killed. On the facts, the court
held that ―the appellant is entitled to have the facts in which he honestly but
mistakenly believed, regarded as the real facts for the purpose of assessing his criminal
responsibility…‖
(iii)Belief in the existence of state of things

The third requirement for the defence is that the defendant must act according to
a ―belief in the existence of any state of things.‖ The belief must relate to a specific
state of things. What does ―state of things‖ means?
(iv) Liability limited to the believed state of things

If a defendant successfully raises a defence of mistake of fact, it is not always
that he or she will escape liability completely: it all depends on the believed ―state of
things.‖ For instance, X goes into a game reserve to poach animals. He shoots at what
he believes to be an antelope when in fact it is a game ranger sleeping under a tree.
Whilst the defence of mistake will exonerate him from the charge of murder, he will
be liable for the charge of illegal poaching..
B. Compulsion (or duress)

1. Introduction
Section 16 of the Penal Code provides as follows:
A person is not criminally responsible for an offence if it is committed by two or
more offenders, and if the act is done and omitted only because during the whole
of the time in which it is being done or omitted the person is compelled to do or
omit to do the act by threats on the part of the other offender or offenders
instantly to kill him or do him grievous bodily harm if he refuses; but threats of
future injury do not excuse any offence.
182
Section 16 of the Code provides the statutory basis for the defence of duress or
compulsion in the Malawian criminal law. The origins of the defence are traceable to
common law. As a matter of fact, section 16 of the Code is a codification of the
principles of the defence as they have evolved at common law.
At common law a distinction is drawn between duress by threats and duress of

circumstances. The first type of duress arises where a person is threatened by another
person with death or serious bodily harm if he or she does not commit a crime. This
type of duress is the one that is contained in section 16 of the Penal Code. The second
type covers situations where the threat does not necessarily arise from other persons,
but when a person is faced with a crisis or emergency that compels him or her to act is
a certain way. The second type of duress is mostly termed necessity. In some
textbooks on English criminal law the two types of duress are treated together. 191 This
chapter discusses duress by threats (or duress properly so called) as provided in section
16 of the Penal Code. Duress of circumstances (or necessity) is discussed in the next
chapter.
2. Rationale of the defence of duress

As indicated earlier, defences either excuse or justify conduct. Self-defence, for
example, justifies what would have been otherwise be murder or an assault. On the
other hand,…On its part, the compulsion does not negative mens rea: X is compelled
to kill commit a crime under threats of his own death or grievous bodily harm. He will
commit the crime knowing too well the nature and consequences of his conduct. And
his conduct cannot be said to be involuntary in the same way is the conduct of a person
under automatism: the elements of unconsciousness and uncontrollability of bodily
movements central to automatism are not present in cases of compulsion. Why then
should the law allow the defence of compulsion or duress?
There are strong arguments against the defence of duress.1 The arguments against
the defence of compulsion fall into two groups: firstly, it is argued that accepting
compulsion as a defence would render the law lose some of its deterrence
1
J.S. Stephen, History of the Criminal Law of England, Vol. 2 (1883) (quoted by CMV Clarkson et
al, Criminal Law: Text and Materials, p. 325) said:

191 See Ashworth, Principles of Criminal Law CMV Clarkson and HM Keating, Criminal Law: Text
and Materials pp. 323 – 362;
183
Criminal law is itself a system of compulsion on the widest scale. It is a collection of threats
of injury to life, liberty and property if people do commit crimes. Are such threats to be
withdrawn as soon as they are encountered by opposing threats? The law says to a man
intending to commit a crime, If you do it I will hang you. Is the law to withdraw its threats if
someone else says, If you do not do it I will shoot you? Surely it is when temptation to crime
is strongest that the law should speak more clearly and emphatically to the contrary. It is, of
course, for a man that he should be place between two fires, but it would be a much greater
misfortune for society if criminals could confer impunity upon their agents by threatening
them with death or violence if they if they refused to execute their commands. If impunity
could be so secured a wide door would be opened to collusion, and encouragement would be
given to associations malefactors, secret or otherwise. No doubt the moral guilty of a person
who commits a crime under compulsion is less than that of a person who commits it freely,
but any effect which is thought proper may be given to this circumstance by a proportional
mitigation of the offender‟s punishment. These reasons lead me to think that compulsion by
threats ought in no case whatever to be admitted as an excuse for crime, though it may and
ought to operate in mitigation of punishment in most though not in all cases.
See also Lord Salmon in Abbot v The Queen [1977] A.C. 755 (P.C.)
effect. Why should D be allowed to heed the threats of Y to kill him if he (D) does not
commit the offence of murder and not the threat of the law to kill him (D) if he kills
the person? The argument goes further to state that the threat of punishment which
forms a central part of the criminal law will lose their deterrence effect of people are
allowed to yield to forces working against the law.
Further, it is argued that, apart from the deterrence aspect of the law, there is the
―educative‖ element of the law: that legal norms and legal sanctions also help in the
―fashioning of values and of character.‖ A denial of the defence of duress would
therefore strengthen those values that criminal law give expression to so that person in
situations of duress would be less likely to submit to the threats.
Lastly, it is argued that it is difficult to tell whether a person committed the crime
only because of the threats and not because of the knowledge that whatever the case he
or she has a defence available. In other words, when a person has committed an
offence allegedly under duress, is it possible to say whether he committed the offence
184
because of the threats or the assurance of exculpation offered by the defence such that
without the defence the person would have withstood the pressure?
The second argument against the defence of duress is that the defendant is
morally blameworthy since he acted with the required mental element and his conduct
cannot be said to be involuntary as that term is understood in criminal law and,
accordingly, deserves punishment. However, because of the compulsion his
blameworthiness should be considered as less and the compulsion should be a
mitigating factor in the sentencing process and not one that exclude criminal
responsibility altogether.
Despite these strong objections to the continued application of the defence of

duress, duress is allowed as a defence in many criminal jurisdictions across the world,
including in Malawi. The basis of the defence of compulsion or duress in Malawi has
never been considered. In England, the accepted view is that a defendant who acts
under duress has no effective opportunity to make a choice as to whether to commit
the crime. He is required to choose between two ―morally unacceptable courses of
action.‖ The conduct in response to duress may be characterised as ―non-voluntary,
even if not involuntary.‖192 In other words, he is coerced to commit the crime. His
conduct is said to be ―morally involuntary.‖ As was stated by Lord Morris in D.P.P. v
Lynch193 that:
It is proper that any rational system of law should take fully into account the
standards of honest and reasonable men. By those standards it is fair that actions
and inactions may be tested. If then someone is really threatened with death or
serious injury unless he does what he is told to do us the law to pay no heed to
the miserable, agonising plight of such person? For the law to understand not
only how the timid but also the stalwart may in a moment of crisis behave is not
to make the law weak but to make it just. In the calm of the court-room measures
of fortitude or of heroic behaviour are surely not to be demanded when they
could not in moments for decision reasonably have been expected even of the
resolute and the well disposed…
The law must, I think, take a common sense view. If someone is forced at
gun-point either to be inactive or to do something positive – must the law not
remember that the instinct and perhaps the duty of self-preservation is powerful
192 Ashworth Principles of Criminal Law p. 221

193 [1975] A.C. 653 (H.L.)
185
and natural? I think it must. A man who is attacked is allowed within reason to
take necessary steps to defend himself. The law would be censorious and
inhumane which did not recognise the appalling plight of a person who perhaps
suddenly finds his life in jeopardy unless he submits and obeys.
In Canada, the Supreme Court has adopted the concept of ―moral involuntary‖ as its
starting point. As LeBel J. said in R v Ruzic194 that:
Moral involuntariness is also related to the notion that the defence of duress
is an excuse…In using the expression ‗moral blameworthiness‘, we mean that
the accused person had no ‗real‘ choice but to commit the offence. This
recognises that there was indeed an alternative to breaking the law, although in
the case of duress that choice may be even more unpalatable-to be killed or
physically harmed…
Punishing a person whose actions are involuntary in the physical sense is

unjust because it conflicts with the assumption in criminal law that individuals
are autonomous and freely choosing agents. It is similarly unjust to penalize an
individual who acted in a morally involuntary fashion. This is so because his acts
cannot realistically be attributed to him, as his will was constrained by some
external force…[T]he accused‘s agency is not implicated in her doing. In the
case of morally involuntary conduct, criminal attribution points not to the
accused but to the exigent circumstances facing him, or to the threats of someone
else.
The application of the defence of compulsion in Malawi has never been

subjected to any academic or judicial scrutiny. What makes the application of the
defence to Malawi different from the position in England and Canada is that in Malawi
the defence was given statutory force.
3. Requirements of the defence

Section 14 lists the following as the requirements of the defence of compulsion:
(i) the offence must be committed by two or more people; (ii) the compulsion must
come from one or more of the other co-offender; (iii) the duress must be exerted
during the commission of the offence; (iv) the duress must take the form of death or
194 (2001) S.C.C. 24 (Supreme Court of Canada)
186
―grievous bodily harm‖: (v) the harm must be directed at the defendant; (vi) threats of
future injury not sufficient. We should examine each one of these requirements:
(i) The offence must be committed by one or two

people
The first requirement for the defence of duress is straightforward: the offence
must be committed by two or more people.
(ii) The duress must come from the other offenders

The duress must come from the other offenders.
(iii)During the commission of the crime

The compulsion must be exerted during the commission of the offence. This
raises the question: what would be the outcome where the D is threatened with death
and taken to the scene of the crime and told to commit a crime but the threat is not
repeated at the time of the commission of the crime.
This means that, one would be allowed to avail him or herself of the defence of
compulsion only if he is threatened with death or grievous bodily harm unless he
commits a particular, stipulated crime. In other words, there must be a link between
the threat and the commission of that particular crime. This is so because the law
require that the threat must be exerted on the defendant ―during the whole of the time
in which [the offence] is‖ committed. The same is the approach at the English common
law. In Cole195 the defendant robbed two building societies and claimed that he had
done so to pay off a debt to moneylenders who had hit him with a baseball bat and had
threatened him and his family. The Court of Appeal held that the defence of duress is
only available if the threats are directed at the offence committed. In the case, the
moneylenders had not stipulated that he commit robbery in order to meet their
demands and there was, therefore, an insufficient relationship between the threat and
the offence.
(iv)Threats of harm to the defendant
195 [1994] Crim.L.R. 582
187
The threat must be directed at the defendant‘s person. Threats to the defendant‘s
property or to the defendant‘s relatives, however close, will not suffice. The same is
the position at common law. It is submitted that excluding threats to the defendant‘s
relative is unjustified. If the law allows a person to act defensively if his relatives or
friends are threatened with violence, why should it excuse the person from acting
where they are threatened with death and death. To many people, seeing members of
their close family murdered in cold blood would really break their spirit more than if
the violence was threatened or done to them.
What is the position if the defendant thinks he has been threatened with death or
grievous bodily harm but a reasonable man in his position would not have interpreted
the threats thus? The question raises the question whether a subjective or objective test
ought to be applied in determining whether the defendant ought to have interpreted the
situation as involving threats of death or grievous bodily harm. The answer to the
dilemma can be answered by reading section 16 of the Code together with section 10
of the Code. Section 10 provides as follows:
A person who does or omits to do an act under an honest and reasonable, but
mistaken, belief in the existence of any state of things is not criminally
responsible for the act or omission to any greater extent than if the real state of
things had been such as he believed to exist.
What this means is that a defendant who honestly and reasonably believes that is being
threatened with death or grievous bodily harm will be judged in accordance with the
facts as he honestly and reasonably but mistakenly believed taken as the real facts for
the purposes of assessing his criminal liability. That is, if he honestly believed that he
was being threatened with death or grievous bodily harm and he reasonably believed
so, he will avail himself of the defence of compulsion if the other requirements for the
defence are satisfied.
As revealed in the discussion of the defence of mistake above, in Lufazema v

Republic1 the court held that when assessing the reasonableness of a mistake under
section 10 of the Code, a test of a reasonable man must be a test of ―notional ordinary
man of the community to which the accused person himself belongs.‖ 2 Accordingly, a
defendant will only be allowed to use the defence of compulsion if the mistake he
makes is honest and when an ordinary person of the community to which the person
belongs would have made the same mistake if he had found himself in the same
situation as the one the defendant had found himself.
188
(v) Threat of death or grievous bodily harm
Section 16 of the Penal Code requires that the compulsion must involve threats
of death or grievous bodily harm.3 In effect, the requirement rules out lesser forms of
harms that do not amount to grievous bodily harm, for example, common assault,
assaults occasioning actual bodily harm and wounding that does not amount to
grievous harms. This on its own seems uncontroversial and in straightforward cases
should cause no or little problems to the court.
Controversy starts to emerge in the application of this requirement when one

starts to balance up between the threats the defendant faced and the crime he was
required to commit. Suppose a defendant had been threatened that his legs will be cut
1
4 ALR Mal 415 (S.C.A.)
2
4 ALR Mal 415 at 417
3
Section 4 of the Penal Code defined “grievous harm” as meaning:
…any harm which amounts to a main or dangerous harm or seriously or permanently injures
health or which is likely so to injure health or which extends to permanent disfigurement or
any permanent or serious injury to any external or internal organ, membrane or sense.
The section defines “harm” as meaning “Any bodily hurt, disease or disorder whether permanent or
temporary.”
off if he does not set fire to a building in which almost a hundred innocent women and
children are sheltering, and the fact of which the defendant is well and fully aware. If
he set fire to the building killing all the people in the building, he would be morally
blamed because the harm he has caused is much greater than the harm threatened.
Whilst this ―balancing of harms‖ is used in our morally assessment of the decision of
the defendant, the question is whether the same would be the position under the
Malawian criminal law.
In England, there are dicta indicating that there should be some degree of
proportionality between the threat and the offence. Indeed Lord Hailsham ―believed
that some degree of proportionality between the threat and the offence must, at least to
some extent, be a prerequisite of the defence under the existing law.‖ 196 In Malawi, it is
196 See Howe [1987] 1 A.C. 417
189
impossible to justify the requirement of proportionality between the threat and the
offence on the wording of section 16 of the Penal Code. It is, nonetheless, submitted
that any reform on the law should include a requirement that there must be some
proportionality. This is the approach of the Model Penal Code which provides that any
―use of, or threat to use, unlawful force against his person or the person of another,
which a person of reasonable firmness in his situation would have been unable to
resist‖ will afford a defence of duress.
(vi) Crimes to which duress is a defence

Under Malawian criminal law, compulsion is a defence to any crime. This should
be contrasted to the position at English common law where duress is a defence to all
crimes except murder, attempted murder and treason.
4. Compulsion by husband
Section 19 provides for compulsion of a wife by her husband. The section
A married woman is not free from criminal liability for doing or omitting to do
an act merely because the act or omission takes place in the presence of her
husband; but on a charge against a wife for any offence other than treason or
murder it shall be a good defence to prove that the offence was committed in the
presence of, and under the coercion of, the husband.
The section does nothing apart from providing that the mere fact a wife has committed
a crime in the presence of her husband does not exonerate her of criminal
responsibility. The section further extends the application of the defence of
compulsion to wives.
C. Provocation
1. Introduction
Not infrequently, on charges of murder or assault, the evidence reveals that the
accused person‘s aggressive behaviour was immediately preceded by insulting or
provocative behaviour on the part of the victim, which angered the accused person and
led to his aggressive conduct. As a general principle, the law expects people to control
their emotions and short-temperedness and impatience cannot be an easy excuse. If it
190
were otherwise, there would be little incentive to control emotions and to act with
restraint.
However, as an exception to this principle, the law accepts provocation as a

defence in certain strictly defined circumstances for the offence of murder. The basic
reason why provocation is sometimes accepted as an excuse is that a crime committed
impulsively is morally less blameworthy than a premeditated one.
The statutory bases of the defence of provocation are sections 213 and 214 of
the Penal Code which provide as follows:
(1) When a person who unlawfully kills another under circumstance which, but
for this section, would constitute murder, does the act which causes death in
the heat of passion caused by sudden provocation as hereinafter defined, and
before there is time for his passion to cool, he is guilty of manslaughter only.
(2) This section shall not apply unless the court is satisfied that the act which
caused death bears a reasonable relationship to the provocation.
Section 214 defines provocation in the following terms:

The term provocation means and includes, except as hereinafter stated, any
wrongful act or insult of such a nature as to be likely, when done or offered to an
ordinary person, or in the presence of an ordinary person, to another person who
is under his immediate care or to whom he stands in a conjugal, parental, filial,
or fraternal relation, or in the relation of master and servant, to deprive him of
the power of self-control and to induce him to assault the person by whom the
act or insult is done or offered.
When such an act or insult is done or offered by one person to another, or in the
presence of another to a person who is under the immediate care of that other or
to whom the later stands in any such relation as aforesaid, the former is said to
give to the later provocation for an assault.
A lawful act is not a provocation to any person for an assault.

An act which a person does in consequence of incitement given by another
person in order to induce him to do an act and thereby to furnish an excuse for
committing an assault is not provocation for that assault.
An arrest which is unlawful is not necessarily provocation for an assault but may
be evidence of provocation to a person who knows of the illegality.
191
For the purposes of this section the expression ―an ordinary person‖ shall mean
an ordinary person of the community to which the accused belongs.
What is clear from section 213 quoted above, provocation features as a defence to the
crime of murder only. The reasons for this are historical. However, it is not
inconceivable that it may also apply as a defence to other crimes, such as damage to
property, arson or assault. However, in these other crimes provocation is relevant as a
mitigating factor during sentencing197.
Further, provocation is a partial defence and works to reduce the offence from
murder to manslaughter.
We now turn to examine the requirements of the defence.
(a) Requirements of provocation

Section 213 and 214 go to a great length in defining the requirements of the
defence of provocation. There is a sizable case low that explains these requirements.
1. Provocation and anger

Provocation and anger are two different things.
2. Unlawful killing
Provocation applies as a defence to a charge of murder. For that reason, before
the defence can be raised it must be established that the accused person unlawfully
killed another in circumstances that amount to murder. This is clear from the wording
of section 213 (1) of the Penal Code. What this means is that the accused person must
have acted with one of the required mental elements of the offence of murder as
provided in section 212 of the Penal Code. A person who throws a can on another not
knowing that it contains a hand grenade which explodes killing the other person
cannot be guilty of murder. He has acted without any of the required mental element
for the offence of murder. If he throws the tin on the person after being provoked, he
cannot be charged with the offence of murder but manslaughter and therefore the
defence of provocation will not be available to the accused person. He will be charged
197 In Chief Public Prosecutor v Phiri (H.) 10 MLR 202 the High Court stressed the fact that
provocation as a defence is only available in cases of murder and not assault. However, the court
accepted provocation as a mitigating factor during sentencing. See also Sumaili v Republic (H.C.) 2
ALR Mal 552
192
with manslaughter because his conduct satisfies the requirements of the offence as
provided in section 208 of the Penal Code. What this means is that before the court can
come to the point of considering the defence of provocation, all the requirements for
the offence of murder must be satisfied.
It should be underscored that the defence of provocation, just as that of

selfdefence, is available to an accused person even if he acted with the intention to
kill.198 Provocation, however, does not justify an unlawful killing: what provocation
does is to reduce the offence of murder to that of manslaughter.199
3. Wrongful act or insult

Section 214 defines provocation as ―any wrongful act or insult of such nature as to
be likely‖ to deprive an ordinary person of the of the accused person‘s community to
lose self-control. A survey of case law reveals that provocation may comprise either
words or conduct, or a combination of both. An example of provocation consisting
solely of conduct is where a spouse catches the other spouse in the act of committing
adultery.200 The act need to be wrongful and it is not necessary that it should be
unlawful. The approach of the court on the matter indicate that a wrongful act is one
that is contrary to accepted moral, social or cultural tenets of the community to which
the accused person belongs. Wrongfulness of conduct should not be confused with its
unlawfulness. Section 214 of the Code specifically provides that ―a lawful act is not
provocation to any person for an assault.‖
Without any statutory guidance on what factors should be taken into account
when considering whether an act is wrong or not, it seems the approach of the court is
to consider the issue by considering the circumstances of each case. Republic v
Mwasumola1 offers a very interesting reading. The facts of the case can be summarily
presented as follows: the accused person and his wife (the deceased) had during the
day agreed to have sex that evening. This was despite the fact that there had just been
a funeral in their village and customs required abstinence from married couples. To
complicate the matter further, the two agreed that the intercourse will take place in a
room in which the deceased would be sleeping with two other women. At the agreed
time the accused went into the room and the wife refused to have sex with him. This
198 See Kaipa v Republic 3 ALR Mal 142 at 155
199 Director of Public Prosecution v Chipaye and others 4 ALR Mal 43 (S.C.A.)
200 See Republic v Alayina 1 ALR Mal 510 (H.C.)
193
angered the accused person and he hit her with a stick fracturing her skull an injury
from which she died. Assessors advised the court that under custom, the wife was not
acting wrongfully in refusing the accused person intercourse for two reasons: first
because of the custom in the area from which the accused and his wife came from the
two were not required to have sexual intercourse, secondly, the place where the
accused person wanted to have intercourse was not proper. In the opinion of the court,
the deceased was ―justified.‖ Despite this advice of the assessors, the court went
further to find that the deceased acted wrongfully since she had previously agreed to
have sex with the accused well aware of the custom and the fact that she was sleeping
with two other women in the same room. The court observed that the deceased‘s
conduct had made the accused person believe that she he would have sexual
intercourse with her and turning him away was wrong. The manner in which the court
treated the issue of wrongfulness of conduct suggests that when assessing the
wrongfulness of conduct, there is not exact yardstick to be used and that all the court
must consider are the facts of the case in their totality and decide whether a reasonable
member of the accused person‘s community can be provoked.
In Kamiata v Republic2 it was held that a wrongful act done to the property of
another does not in itself amount to provocation. However, if the act is done in a
1
4 ALR Mal 569
2
4 ALR Mal 375
manner calculated to insult or provoke the owner of the property legal provocation can
be said to exist. For instance, if a person knows that another adores his vehicle and
comes to urinate or scratch the vehicle or does something wrongful in respect of the
vehicle in a manner that clearly shows that the intention of the person is to insult the
other there can be provocation. In the very words of the court
On a strict interpretation of the important words cited in section 214 of our Penal
Code, it does not seem that a wrongful act done to property, of itself, can ever amount
to provocation. Where, however, the wrongful act had an ulterior intent, for example,
where it is done maliciously to the accused‘s property in circumstances where it
amounts to an insult offered to him, then what has to be considered is not the act done
to the property but the extent of the overspill of insult to the owner. In such instances,
there would be no derogation from the intention of the legislature to exclude acts done
194
to property in assessing provocation; the sole consideration would be the extent of
actual insult offered to and intended against the person.
In light of the decision of the Supreme Court of Appeal in the Kamiata case, the
question that has to be asked is whether the principle can be extended to other things
that evoke people‘s emotions, for instance, wrongful acts done to religious objects or
symbols, political parties, sporting teams and many other objects.
4. heat of passion
It is not enough to establish that the accused person was provoked: in order to succeed
with the defence of provocation, the accused person must prove that he killed whilst
―in the heat of passion.‖
5. Sudden provocation
The “heat of passion” should have been caused by ―sudden provocation.‖ What does
the expression ―sudden provocation‖ mean? The decision of the High Court in
Republic v Lufazema201 seem to explain the phrase as requiring that the provocation
must be instant. The act of provocation must be impulsive or unexpected resulting into
an impulsive reaction from the accused person. In the Lufazema case, the accused
person entertained a belief that the victim was bewitching his (the accused person‘s)
relatives and believed that he would be the next victim. The court rejected the defence
of provocation pointing out that even if the belief in witchcraft is accepted as
amounting to provocation, the accused person could not avail himself of the defence of
provocation ―because it was not sudden…‖202203
Courts have accepted that there can be ―cumulative provocation‖ which involves
continuous provocative acts spread over a period of time. As a general principle,
cumulative provocation on its own cannot be a basis for the defence of provocation.
However, cumulative provocation may be taken into account in considering the last
provocative act that prompted the accused person to act as he or she did. For that
reason, the accused person must prove a proverbial last straw that broke the
201 (1966 – 68) 4 ALR Mal 355

202 (1966 – 68) 4 ALR Mal. 355 at 360
203 Kamiata v Republic 4 ALR Mal. 375 (S.C.A.), Nankondwa v Republic 4 ALR Mal. 388
195
2 It is important that the past conduct must be provocative in itself. As
Carmel‟s back. was stated in Kamiata v Republic that:
Although the whole history of the relationship of the appellant and the deceased ought
to be considered, it is commonsense that conduct which was not provocative in the
past cannot become provocation in the present merely because it was exasperating or
annoying, or to be cumulative to some insult or wrongful act done just before the
assault. Merely exasperating conduct cannot change its quality because of a later act or
insult…It is vain to add nothing to nothing and hope to arrive at a sum total of
provocation204.
The past conduct need not amount to provocation as defined in section 214: all that is
required is that they must be ―of provocative nature.‖205
In considering past insults, it is necessary to draw a distinction between past

provocation that lead the accused person to form an intention to assault the provoker
and wait for such time when the provoker would do it again for the person to act.
6. Before there is time to cool off

Section 213 of the Penal Code requires that there must not be any time interval
between the sudden provocation and reaction during which the passion can cool. Here
the question if one of fact. More problematic however are insults offered to people and
at the time when the insult or wrongful act is done the accused person does not realise
or appreciate the provocative nature of the act.
7. The test of provocation

Section 214 defines provocation as wrongful or unlawful act that would make
―an ordinary person‖ lose his self-control. The section goes further to explain the
204 Kamiata v Republic at p.381
205 In Zakaria v Republic 5 ALR Mal. 270 (S.C.A.) it was stated that:
If there has been a previous history of friction between those concerned, a course of
conduct in which there may have been other acts of provocative nature (not necessarily
amounting in themselves to provocation as defined), then, particularly where there have
been of a comparatively recent nature, it would appear to be unreal and unjust to an accused
person to view the cumulating incident in isolation. [Emphasis added.]
196
expression ―an ordinary person‖ as to mean ―an ordinary person of the community
to which the accused belongs.‖ This proviso to section 214 has been widely accepted
as importing an objective test in assessing whether indeed conduct is provocative or
not.1 The question that needs to be asked therefore is whether an ordinary person of the
accused person‘s community would have been provoked by the conduct of the victim
of the crime.
If a subjective test was applied personal characteristics of the accused person

would have been taken into account. The mere fact that a person is short-tempered or
jealousy and many other such traits that differentiate people and make them react to
the same situation differently would have been relevant factors. This would have
required the court to inquire into the exact mood of the accused person at the time of
committing the crime which would have been difficult.
The other important consequence of the objective test is that intoxication cannot
be relevant. It is common knowledge that there are people who become tempered with
the consumption of alcohol, narcotics or drugs. The test to be applied to these people is
the same objective test. In the words of Unsworth, C.J. in Kachamba v Republic2
1
Republic v Alayina 1 ALR Mal. 510 (H.C.), Republic v Chao 1 ALR Mal 189 (H.C.), Nankondwa v
Republic 4 ALR Mal 388 (S.C.A.)

2
2 ALR Mal 83
Provocation…must be judged by the standards of the ordinary man as prescribed
by the section and not by those of a drunken man.206207
8. Test of reasonable relationship between provocation and reaction

Apart from requiring that the conduct of the victim must be such as to provoke
an ordinary person of the accused person‘s community to lose self-control, another
hurdle that the accused person must pass is that the reaction to the provocation must
bear a ―reasonable relationship to the provocation. The reason for this requirement is
that people who provoke others don‘t really invite those provoked to murder them.
More importantly, as stated above, the law and society in general expect people to
reign on their emotions. The law‘s notions of justice and fairness would be defeated if
206 See also Menyani v Republic 4 ALR Mal 79 and Sitolo v Republic 4 ALR Mal 506
207 ALR Mal. 449
197
a simple insult was met with murderous rage. This is what is called the ―reasonable
retaliation doctrine.‖
There doctrine has been criticised on the basis that it is contradictory to the very
concept of provocation in the sense that a person who has lost self-control cannot at
the same time be expected to measure his reaction to the provocation. This criticism
has been accepted by the Supreme Court of Appeal as justified in Mbaila v Republic2
when the court made the following observations:
It is clear from the way in which s. 213 of the Penal Code is worded that the
provisions relating to provocation apply only in circumstances otherwise
amounting to murder; this means there will in most cases have been a fairly
serious attack or assault. Moreover, a loss of self-control is postulated. With two
prerequisites such as these, it is indeed difficult to apply the further provision
that the act causing death must bear a reasonable relationship to the provocation
for…how can a man who has lost his self-control be expected to act
reasonably?208
Whilst the criticism may be justified, on the other hand, it is not hard to imagine cases
where the reaction of a person to a provocation or insult can be said to be
disproportional. For instance, in Menyani v Republic209 the accused picked a quarrel
with the deceased, a woman, over trees. During the quarrel, the deceased called the
accused names including that he was a dog. This incensed the accused person that he
struck the deceased as a result of which she fell down. The accused then took off one
of his boot which he used to hit the deceased several times. The deceased sustained
injuries which included a fracture of the skull, fractures of two ribs and a ruptured
spleen. Both the High Court and the Supreme Court of Appeal was unanimous on
that the accused person was indeed provoked but that his retaliation bore no
reasonable relationship to the reaction. If one considers the sequence of the events as
narrated above it becomes clear that after the accused person had struck the deceased
he was really provoked. If she had died of the injuries sustained by that first blow the
208 Similarly, in Kaipa v Republic 3 ALR Mal 142 the Supreme Court of Appeal observed that:
…[I]n my opinion it does seem slightly illogical to find on the one hand that a man has been
provoked to a point of loss of self-control but has reacted reasonably, and yet on the other
hand to punish him for manslaughter.
209 Similar to 13 above
198
defence of provocation would have been available. The second phase of the events
started with the accused taking off his boot and which he used to hit the accused
person several times and all over the body so as to fracture a skull and ribs and cause
the rupturing of the spleen. When one considers the second phase, one would easily
conclude that the matter took some time when the accused person should have
regained his self-control and stopped. The criticism against the reasonable retaliation
doctrine noted above would have applies to case is the first blow was fatal. But here
the accused person went far and to murder someone with a boot for calling you a dog
does not really justify such retaliation.
All in all, there are cases where one can say that the accused person went a little
bit too far.
D. Intoxication
1. Introduction
There is a close nexus between the consumption of alcohol (and other prohibited
drugs) and certain forms of crime in Malawi. Research has revealed that there is an
identifiable correlation between excessive consumption of alcohol and ―non-
propertyrelated violent crime‖ in Malawi210 and that places where alcohol is consumed
(i.e. bars, taverns and other entertainment places) are associated with assaults and,
secondly, that victims of assaults believe that alcohol abuse was directly linked to their
being assaulted211. As a matter of fact, 31.5 percent of assault victims were assaulted
by persons who were under the influence alcohol. 212 Moreover, not infrequently,
accused persons cite drunkenness as either a defence or as a mitigating factor during
sentencing. But saying that a significant number of people who commit certain crimes
are drunk is not the same thing as saying that it is the consumption of alcohol that
caused the criminal acts. All that is being claimed here is that there is a strong
association between the two.
2. General
And it is this association between consumption of alcohol and drugs that lead to
criminal laws of many jurisdictions to take a specific stand as regards the relationship
210 Eric Pelser Crime of Need (2004) at p. 43

211 Eric Pelser et al Crimes of Need at p 43
212 Eric Pelser et al, Crimes of Need at p. 43
199
between intoxication and criminal liability. And that is exactly what section 13 of the
Penal Code does. The section reads as follows:
(1) Save as provided in this section, intoxication shall not constitute a defence to
any criminal charge.
(2) Intoxication shall be a defence to any criminal charge if by reason thereof the
person charged at the time of the act or omission complained of did not know
that such act or omission was wrong or did not know what he was doing
and–
(b) the state of intoxication was caused without his consent by the malicious
and negligent act of another person; or
(c) the person charged was by reason of intoxication insane, temporarily or

otherwise, at the time of such act or omission.
(3) …
(4) Intoxication shall be taken into account for the purpose of determining
whether the person charged had formed any intention, specific or otherwise,
in the absence of which he would not be guilty of the offence.
(5) For the purposes of this section ―intoxication‖ shall be deemed to include a
state produced by narcotics or drugs.
From section 13 above, the law in Malawi as regards intoxication is clear and should
not occasion problems in the majority of cases. Firstly, and as a general principle,
intoxication is no excuse for a crime in Malawi. 213 Secondly, intoxication will be
accepted as a defence in certain restrictively defined circumstances, i.e., if by reason of
the intoxication the person did not know that what he was doing was wrong or did not
know what he was doing and either he was
involuntarily intoxicated or he was insane by reason of the intoxication. 214 Lastly,

intoxication is said to be relevant for the purposes of determining whether the
defendant had formed any intention, specific or otherwise, required for the offence for
which he or she is charged.
3. Intoxication not a defence

213 Section 13 (1) of the Penal Code. See also Republic v Andrea 5 ALR Mal 158
214 Section 136 (2) of the Penal Code; See Republic v Andrea 5 ALR Mal. 158 (H.C.)
200
The general principle that intoxication is not a defence to any criminal charge
gives expression to a policy of criminal law traceable from the English common law.
The law would have failed in its objectives of protecting the public and would have
compromised its deterrence effect if it had allowed drunken persons to escape criminal
liability and punishment. The message is clear: those who voluntarily take substances
that have the capacity to alter their reasoning abilities should do so responsibly
otherwise they will be made responsible for their actions. The effect of intoxication are
clear; it removes or weakens the restraints and inhibitions which normally govern
conduct; it impairs the faculty to appreciate the consequences of ones actions; it may
also make a person act negligently by impairing powers of perception, delaying
reaction in time, and renders coordination of movement difficult. As a consequence, a
person who starts consuming alcohol should bear all these consequences.
4. Intoxication a defence
Despite the general principle discussed above, there are circumstances in which
intoxication may be a defence. Before a person can avail himself of intoxication as a
defence, the following requirements must be satisfied.
(i) Incapacity to know what one is doing

Intoxication will be accepted as a defence if, by reason of the intoxication, the
person is incapable of knowing that the act or omission is wrongful or completely lost
the capacity to know what he or she is doing. Apart from this requirement, the person
must also satisfy any of the following two requirements. In Republic v Andrea it was
held that the question that must be decided by the court is: ―Did the accused know
what he was doing, or did he know he ought not to do it?‖
(ii) Involuntary intoxication

Section 13 of the Penal Code makes a distinction between voluntary and
involuntary intoxication. The distinction is a codification of the approach at common
law. Under section 13 (2) (a) involuntary intoxication is restrictively defined to
involve cases where the defendant took the intoxicating substance without his consent
―and by the malicious or negligent act of another person.‖ The defendant must not
consent to the consumption of the alcoholic drink. This can happen where he does not
know the true nature of the drink or he is forced to take the drink in circumstances
201
where there cannot be said to be a valid consent. Further, the person who has made the
defendant drink must be acting maliciously. What about cases where the defendant is
mistaken about the alcoholic content of the drink? If the accused person knew that
what he is taking is an alcoholic drink then the mere fact that he was misled or was
mistaken about its alcoholic content will not suffice.
Voluntary intoxication can be defined as intoxication resulting from intentional

consumption of alcohol or any other drug with the full knowledge that the substance
taken has intoxicating effects. On the other hand, involuntary alcohol would involve
cases where the accused person does not know the alcoholic nature of the drink or if
there is a fact unknown to the accused person.
(iii)Insanity by reason of intoxication

Section 13 (2) (a) of the Code also covers cases where the alcohol induces a state
of insanity, whether temporarily or otherwise in which case all the requirements of the
defence of insanity must be satisfied.
5. Intoxication and the ability to form intent

Lastly, under section 13 (4) of the Code, intoxication will be relevant in
determining whether the defendant ―had formed any intention, specific or otherwise,
in the absence of which he would not be guilty of the offence.‖
(i) Specific or otherwise intent

At common law a distinction was drawn between crimes of ―specific intent‖ and
crimes of ―basic intent.‖ Drunkenness could only be a defence to the former and not
the later. Though not yet expressly considered by the court, it is submitted that by
providing that intoxication would be relevant in deciding whether the defendant ―had
formed any intention, specific or otherwise…‖ section 13 (4) clearly signals a departure
from common law approach mentioned above. Under section 13 (4) of the Code,
intoxication will be a defence to crimes that require proof of intention as distinguished
from those crimes that require other forms of mens rea for instance negligence or
recklessness.
V. EXEMPTIONS
202
A. Immaturity (Lack of Age)
1. Introduction
Malawian criminal law recognises immaturity of a person in itself as a defence.
Section 14 of the Penal Code is the enabling provision for the defence of immaturity.
It read as follows:
A person under the age of seven years is not criminally responsible

for any action or omission.
A person under the age of twelve years is not criminally responsible for an act
or omission unless it is proved that at the time of doing the act or making the
omission he had capacity to know that he ought not to do the act or make the
omission.
A male person under the age of twelve years is presumed to be incapable of

having carnal knowledge.
From section 14, it is clear that for the purposes of general criminal responsibility our
law arbitrarily divides immature age into three groups: those under seven years of age,
between seven years of age and twelve years, and from twelve years and upwards.
2. Below the age of seven

Children below the age of seven years are exempted from criminal responsibility
for their actions or omissions. The basis of this principle is an irrebutable presumption
that children below this age are incapable of forming the requisite mental element for
the commission of any crime: they are said to be doli incapax.
It is submitted that this arbitrary age limit is considerably low by modern

standards. To consider that a child who is just seven years and one week can be sent to
prison is quite tragic both to the child and to the society in general. The Penal Code
(Amendment) Bill now before Parliament is proposing that the ages be increased from
seven years to ten years for doli incapax.
3. Between the ages of seven and twelve

A child who has completed the seventh age but not the twelfth year is
also, to use the language of courts of law, presumed to be doli incapax, but in the
case of such a child the presumption can be rebutted by evidence proving ―that
at the time of doing the act or making the omission he had capacity to know that
203
he ought not to do the act or make the omission.‖ 215 In other words, a child
between this age group is exempt from criminal responsibility unless it is proved,
not only that he committed the prohibited conduct for the offence with the
requisite mens rea, but also that he had the criminal capacity in the sense that he
knew that his act was wrongful. We now turn to examine in more detail the
requirements for the establishment of criminal responsibility of person between
this age limit.
The proposed amendment to the penal code is seeking to increase the age from
twelve years to fourteen years for this category.
(i) Criminal Capacity

Section 14 of the Penal Code demands that in rebutting the presumption of doli
incapax, it must be proved that the child ―had capacity to know that he ought not to
do the act or make the omission.‖ The inquiry into the ―criminal capacity‖ of the child
between this age group should be done by examining the child‘s understanding and
judgment. This would involve bringing before the court evidence about the child‘s
upbringing, level of education or inquiries asking the child his general understanding
of the elements of the offence charged. But the mere fact that the child did the acts
constituting the actus reus for the offence charged cannot be taken as evidence that the
child had criminal capacity. In other words, the criminal capacity of the child must be
assessed independent of the assessment as to the actus reus or the mens rea of the
offence.
The capacity of the child to know must be both actual and subjective. It would be
insufficient therefore if a reasonable child of the same age would have had the
capacity to know. The court need to make a specific finding of fact that the child
actually had the capacity to know.
(ii) Knowledge
Secondly, it is required that the child must have the ―capacity to know that he
ought not to do the act or make the omission.‖ Once it has been found that the child
had criminal capacity, actual knowledge is not required. The conclusion would have
been different if the proviso was worded as follows: ―…it is proved that at the time
215 Section 14 of the Code
204
of doing the act or making the omission he knew that he ought not to do the act or
make the omission.‖ If this was the formulation, then it would have been said that
actual knowledge of the child was required.
(iii) Meaning of wrongful

The section requires that the child must have the ―capacity to know that not to
do the act or make the omission.‖ In other words, the child should have had the
capacity to know that the act or omission was prohibited. This begs the question:
should the child know that he ought not to do the act because it is criminally
prohibited or morally prohibited or just because it is prohibited? At common law, it is
required that the child should know that the act is wrongful. And the word ―wrong‖
has been interpreted to mean ―gravely‖ or ―seriously‖ wrong. In other words, it is
not required for the child to know that it is prohibited from doing the act but that ―he
ought not to do the act or make the omission‖ because it seriously or gravely wrong.
I would make the same recommendation for Malawi: a child should have the
capacity to know that ―he ought not to do the act or make the omission‖ because it is
seriously wrong. A child aged seven years who is prohibited by his parents from
entering neighbours‘ houses may know that he ought not to enter the houses. And if
the child enters the house without permission should such a child be charged with
housebreaking?
(iv) Mens rea

The assessment of the child‘s criminal capacity is independent of the assessment
of the child‘s mens rea. Where mens rea is required for guilt it must, of course, be
proved in addition to criminal capacity. Mens rea in the form of intention may be more
difficult to establish in the case of a child because of the immaturity of his mind. But
where such intention is proved, there is nothing to prevent the court from recording
proof of intention.
4. From the age of twelve and upwards

On attaining the age of twelve a child‘s criminal capacity is regarded in law as
being the same as that of an adult. However, Malawian laws recognize the
vulnerability of children who are in conflict with criminal law and provide as special
processing regime applicable to such children. So even though children within this age
205
bracket are criminally responsible for their actions, it is an established principle that
custodial sentences should only be imposed on juveniles if there is evidence that they
are ―unruly and of depraved character.‖216
Starting with the Constitution, apart from providing for the general rights of
children under section 23 and the right guaranteed to all person accused of an offence
under section 42 (2), in its section 42 (2) (g) the Constitution provides the following as
the rights of children accused of an offence:
(i) not to be sentenced to life imprisonment without possibility of release;

(ii) to be imprisoned only as a last resort and for the shortest period of
time;
(iii) to be separated from adults when imprisoned, unless it is considered to

be in his or her best interest not to do so, and to maintain contact with
his or her family through correspondence and visits;
(iv) to be treated in a manner consistent with the promotion of his or her

sense of dignity and worth, which reinforces respect for the rights and
freedoms of others;
(v) to be treated in a manner which takes into account his or her age and
the desirability of promoting his or her reintegration into society to
assume a constructive role; and
(vi) to be dealt with in a form of legal proceedings that reflects the

vulnerability of children while fully respecting human rights and legal
safeguards.
Besides, the Children and Young Persons Act217 provide for all matters pertaining
to the processing of a ―juvenile‖218 who is in conflict with the law. And in examining
216 See Republic v Mapila and another [1990] 13 MLR 385 (H.C.)
218 A “juvenile” is defined by section 2 of the Children and Young Persons Act as including a
“young person” who is in defined as–
A person who, in the absence of legal proof to the contrary, is, in the opinion of the
court having cognizance of the case in relation to such person, fourteen years of age or
upwards and under the age of eighteen years.
206
the provisions in the Children and Young Persons Act, the proper starting point is
section 4 of the Act that provides:
Every juvenile court in dealing with a juvenile who is brought before it either as
being in need of care or protection, or as an offender or otherwise, shall have
regard to the welfare of the juvenile and shall in a proper case take steps for
removing him from undesirable surroundings, and for securing that proper
provision is made for his/her education and training.
The above-quoted section and the relevant constitutional provisions have been said to
set the underlying considerations in juvenile trials and that these considerations can be
achieved in a number of ways one of which is through the provisions of the Children
and Young Persons Act.219
The first task of every court that has before it a person whose particulars or
appearance suggest that he or she is a juvenile is to ascertain the age of the person 220
because it is the age of the accused person that gives it jurisdiction as a juvenile
court.221 At the very be beginning of the trial it is the duty of the court to ensure that
the juvenile fully understands the substance of the allegation(s) being leveled against
him or her by, inter alia, explaining the charge to the juvenile in a simple language
suitable to his or her age and understanding. Where a juvenile is not legally
represented it is allowed for parents or guardian to explain the proceedings to him or
her.222 And where the juvenile cannot be assisted by either a legal practitioner or a
parent or guardian the court is required to assist him or her in the conduct of his or her
case.223
219 Republic v Blessings Mwenda, Confirmation Case No 449 of 1998 (H.C.) (L.L.) (Unrep)
220 See Regina v Kamanga, (1964 – 66) 3 ALR Mal 317; Republic v Blessings Mwenda,
Confirmation
Case No 449 of 1998 (H.C.) (L.L.) (Unrep)
221 See Republic v Blessings Mwenda, Confirmation Case No 449 of 1998 (H.C.) (L.L.) (Unrep)
222 Section 14 (4) of the Children and Young Persons Act provides:
The court shall, except in any case where the juvenile is represented by a legal
practitioner, allow his parents, guardian or, in their absence, any relation or other
responsible person to assist him in conducting his defence.
223 See section 14 (5) of the Children and Young Persons Act
207
Both the procedure used in processing a juvenile and the punishment imposed
reflect the vulnerability of the children. The court is required to sit as a juvenile
court224 and there are restrictions on attendance at the trial. 225 Section 14 of the
Children and Young Persons Act regulates the manner in which the trial is conducted
including the giving of Evidence in Chief, cross-examination of the juvenile and the
manner of conducting defence by the juvenile. There are restrictions as well as to the
language used: the Children and Young Persons Act prohibit the use of the word
―guilty‖ in
respect of a juvenile, in its stead, the court is required to find the juvenile ―liable‖ and
to impose, not ―punishment‖, but a ―final order.‖5
224 See section 6 of the Children and Young Persons Act. Section 7 (2) require that that
sittings should, where possible, be in a different building from that in which ordinary court sittings
are held. If this were not possible then the sittings should be on different days from ordinary court
sittings.
225 See section 7 of the Children and Young Persons Act. The section allow the attendance of only
those person the court considers necessary such as the officers of the court, parties to the case and
others directly concerned in the case. The parents or guardians should be required to attend if they
can be found unless the court considers it unreasonable or undesirable that they should attend. 5 In
deciding what order the court should impose on a juvenile, the advice of Nyirenda, J., in Republic v
Blessings Mwenda, are pertinent. He said:
208
Failure to observe these requirements may result into the proceedings against the
juvenile being set aside by a court of appeal.1
B. Insanity
1. Introduction
One of the fundamental presumptions of Malawian criminal law and criminal
liability is that every person is of ―sound mind, and to have been of sound mind at
any
The most vital role of the court in juvenile cases is to determine the best way of dealing
with the juvenile when it is proved that he committed the offence. The cardinal
consideration is what would be in the best interest of the juvenile and the desirability of
promoting his or her reintegration into society to assume a constructive role. It is therefore
necessary that before deciding on how to deal with the juvenile the court shall obtain such
information as to his general conduct, character, home surrounding, school records, medical
history and such relevant information. The most convenient way of obtaining such
information is by assigning the matter to a probation officer although some of the
information can be obtained by the court itself from the parents, guardian, other responsible
persons and by putting questions to the juvenile himself or herself…
My contention is that in deciding on the appropriate measure a court must, in each case,
consider each of the measures in ascending punition in order to arrive at an appropriate
measure in the circumstances of the case. To demonstrate this observation let me outline the
powers of the court under section 16(l) in their order. The court is empowered to:
(a) acquit or discharge the offender
(b) require the offender to enter into a bond to be of good behavior
(c) commit the offender to the care of a relative or other person
(d) order his parent or guardian to execute a bond to exercise proper care and
guardianship
(e) place the offender under the supervision of a probation officer
(f) order the offender to pay a fine, compensation, damages or costs
209
(g) make an approved school order
(h) in rare cases where the court is satisfied that the juvenile is of so unruly a character
or that he is of so depraved a character the court will order imprisonment for an
indeterminate period.
1
See Republic v Samu Kalua and Dyton Nyirenda, Confirmation Case No 314 of 1995 (H.C.) (Mz)
(unrep.)
time which comes in question, until the contrary is proved. 226‖ This presumption
follows closely the theory of individual autonomy that presupposes an individual who
is rational and autonomous otherwise he does not deserve to be liable for criminal
punishment. These presumptions are uncontroversial. But it follow that a person who
does not meet the presumption of sanity need not be held criminally responsible for
the act or omissions does. One of the most important defences that exclude mens rea is
that of insanity. If a person successfully raises this defence, it means that he is held not
to be criminally responsible for his conduct. The law on insanity in Malawi is a team
work of statutory law and common law principles. For the first, section 12 of the Code
A person is not criminally responsible for an act or omission is at the time of

doing the act or making the omission he is through any disease affecting his
mind incapable of understanding what he is doing, or of knowing that he ought
not to do the act or make the omission.
But a person may be criminally responsible for an act or omission, although his
mind is affected by disease, if such disease does not in fact produce upon his
mind one or other of the effects above mentioned in reference to that act or
omission.
At the core of the defence of insanity is the concept of ―criminal responsibility‖

discussed earlier. And it is in the discussion of the defence of insanity (and other
defences such as immaturity, intoxication and intoxication) that the concept becomes
much clearer.
In the Penal Code, as well as in case law, the defence being discussed here is
known as ―insanity.‖ However,
210
(a) The M‟Naghten Rules and their relationship to section 12 of the Penal
Code
It is impossible to discuss the defence of insanity without first discussing the

principles that arose from the old English case M‟Naghten227. The facts of the case
can be briefly stated as follows: the defendant in the case, a man named M‘Naghten,
was indicted for the murder of Edward Drummond, Secretary to the Prime Minister,
Sir Robert Peel. The defence brought evidence of the defendant‘s insanity. The jury
acquitted the defendant by reason of his insanity. The acquittal caused much
indignation in England. The House of Lords reacted by asking the top judges of the
day to clarify the application of the defence of insanity. It is in answering the questions
that the House of Lords had put to the court that the famous M‘Naghten rules were
given out. The rules have been followed in virtually all the AngloAmerican legal
systems. In some jurisdiction, the rules have been changed but are still followed in
other jurisdictions. The court advised that a person would be said to be suffering from
insanity so as to exclude his criminal responsibility for his act if –
[T]o establish the defence on he ground of insanity, it must be clearly proved

that, at the time of the committing of the act, the party accused was labouring
under such a defect of reason, from disease of the mind, as to know the nature
and quality of the act he was doing; or, if he did know it, that he did not know
that he was doing what was wrong…
It is clear that there is a close resemblance between the wording of section 12 of the
Penal Code and the quotation above. As a matter of fact, section 12 represent a
codification of the common law position as expressed in the so called M‘Naghten
rules. For that reason, any discussion of the key elements of the defence of insanity
invariably calls for a discussion of the common law position on the matter. As a matter
of fact, our courts of law have been greatly influenced by decisions of courts of law in
England.
(b) Requirements for the defence of insanity

Both section 12 of the Code and the M‘Naghten rule represent a series of hurdles
over which the defendant must pass in order to be excused of liability. These include
(1) he must have committed a prohibited act or omission (2) was suffering from a
disease affecting his mind (3) the disease affected his mind should have rendered him
227 (1843) 10 C & F, 200, 8 Eng Rep 718
211
incapable of understanding what he was doing or of knowing that he ought not to do
the act or make the omission.
1. Presence of an actus reus

Before coming to the question whether the accused person was insane or not it is
important that one must determine that the accused person committed the actus reus.
Upon being satisfied that all the elements of an offence are present, then one should go
further to consider the defence of insanity.
2. Disease affecting the mind

Critical to the defence of insanity is the need to prove that the defendant was
suffering from a ―disease affecting his mind.‖ In the M’Naghten rules the requirement
is that the accused person must have been suffering from a ―disease of the mind.‖
There are no any practical or juridical differences between the two formulations. The
wording of section 12 of the Penal Code is clear: what is required is not a ―mental
disease‖ or ―mental illness‖ but rather a disease that affects the mind. Any disease
suffices as long as it affects the mind. The section is therefore not limited to known
forms of mental illnesses or abnormalities, to the exclusion of others. A person who
raises a defence of insanity will, therefore, has to seek the aid of psychiatric evidence
to show that the disease he was suffering from affected his mind to render him
―incapable of understanding what he [was] doing, or of knowing that he ought not to

[have done] the act or make the omission‖ as is also required by the law.
The expression ―disease affecting the mind‖ also means that it is not necessary
to prove that the disease originated in the mind of the accused person: the defence can
succeed even if the origin of the disease is organic. In the English case of Kemp1 the
accused person was suffering from arteriosclerosis and his defence of insanity was
accepted. All that is important is that the disease must lead to a disturbance of the
mental faculties.
In Ngwira v Republic2 the Appellant set fire to grain stores belonging to her
sister-in-marriage. She and her husband strongly believed that the complainant had
bewitched their son. Both in the lower court and in the High Court, the Appellant
claimed that she did not know what she was doing at the material time. The trial court
set aside the conviction and sentence because the trial court did not consider the
212
defence of insanity. Further, the court quoted with approval a statement made by the
High Court of Uganda in the case of R. v. Magata s/o Kachehakana on whether the
belief in witchcraft can be a basis for a finding of insanity. In that case the court said:
1
(1956) 3 All ER 249
2
11 MLR 292
An African living far away in the bush may become so obsessed with the idea
228
that he is being bewitched that the balance of his mind may be disturbed to
such an extent that it may be described as disease of the mind.
In that case, the accused person killed his father because he believed that he had
bewitched and killed his two sons, bewitched and killed his wife, bewitched and made
him impotent, he bewitched and killed his goats, bewitched his cow which was still
sick and had bewitched his second wife. But at the time of the trial he was declared
medically normal.
The mere fact that a person has been declared insane under the Mental Treatment
Act does not mean that he is automatically insane for the purposes of criminal law.
The court must also make a determination whether the person‘s condition meet the
requirements of section 14 of the Penal Code. Of course such a declaration will be one
of the factors to be taken into consideration when deciding whether a person is legally
insane or not and hence lacks criminal responsibility.
3. Disease at the time of committing the crime

It is not enough for the defendant to prove that he was suffering from a disease
affecting the mind. Most, importantly, the accused must establish that the accused
person was suffering from the disease at the time of committing the prohibited act or
making the prohibited omission. This was stressed in the case of Republic v Phiri1
where the defence adduced evidence showing that the accused person was a
―mentally deranged person‖ and that at one point in time he was admitted at a mental
hospital. However, the court stressed that the evidence failed to prove that the accused
person was suffering from a disease affecting the mind at the time of committing the
crimes.229
228 MLR 274
213
4. Incapacity to understand or know what one is doing
The fact that a person suffers from a disease affecting his mind is not in itself
sufficient to warrant a ―special finding‖ of ―not guilty by reason of insanity‖. 230 The
disease affecting the mind must have a certain effect on the accused person‘s mental
abilities: he must be incapable of (a) understanding what he is doing or (b) knowing
that he ought not to do the act or make the omission. These are psychological
conditions and apply in the alternative. So even if the accused person understands
what he is doing, he will escape liability if he lacks to the capacity to know that he out
not to do the act or make the omission.
5. Burden of Proof
The burden of proving that the accused person was insane at the time of doing
the act or making the omission that forms the basis of the criminal charged and
therefore cannot be held criminally responsible for his or her actions rests on the
accused person. He discharges it by proving on the balance of probabilities that he was
insane.
6. The “Special Finding” of “Not Guilty By Reason of Insanity”

Under section 135(1) of the Criminal Procedure and Evidence Code, if the
accused person satisfies all the requirements of the defence of insanity mentioned
above, the court must make ―a special finding to the effect that the accused person is
not guilty by reason of insanity.‖ Such a finding is followed by a ―reception order‖
which entails that the person must be admitted to a mental hospital. The language of
section 135(1) as to the admission of the person to the mental hospital are mandatory
which means that the such an admission will be ordered even if the person‘s insanity
was temporary. Of course this may lead to the peculiar situation where a person who
was insane at the time of committing the crime was insane, but who was completely
sane at the time of the trial may be admitted to a mental hospital even though he does
229 As a matter of fact, the court noted that the crime was well planned and was committed
during a period of over one month. This fact cast doubt whether a mentally defective person could
plan and carry out a crime in a manner the accused did.
230 Section 135(1) of the Criminal Procedure and Evidence Code.
214
not need any treatment. But this should not be a major cause for concern since a
proviso to section 135(1) of the Criminal Procedure and Evidence Code gives to the
trial court discretionary powers to limit the period of time the person will be kept in
the mental hospital. Where, therefore, a reception order is made against a person who
is sane at the time of the trial, the court should limit the time for the person‘s
observation at the mental hospital to the shortest period possible.
On the other hand, section 135(1) allows the court to make an order restricting
the discharge of the person from the mental hospital unless with the sanction of the
Minister. Such an order will be appropriate where the accused person is still insane at
the time of the trial.
215
CHAPTER TEN
OFFENCES AGAINST PUBLIC ORDER
A. TREASON
1. Introduction
Treason can be rightly regarded as the most serious offence in the criminal
calendar. It strikes at the very foundations of the state and its social organization and
has the potential to plunge an otherwise peaceful country into the abyss of chaos
thereby leading to a huge loss of life, limb, property and even hope. The effects of
treason may be felt for years to come. And since the enjoyment of almost all the
fundamental human rights and freedoms guaranteed by the Constitution depends upon
the existence of a peaceful and stable social, economic and political environment,
treason poses one of the greatest dangers to human rights and freedoms. The situation
in other countries which have witnessed violent overthrow of lawfully constituted
governments and with often attendant civil wars or genocidal civil wars should be a
reminder of the dangers of treason and the need to effect a change in government, laws
or government policies through constitutional means.
Section 38 (1) of the Penal Code defines the offence of treason in the following
manner:
(1) Any person who–

(a) prepares, endeavors or conspires to overthrow the lawfully constituted
Government by force or other unlawful means;
216
(b) prepares, endeavors or conspires to procure by force any alteration of the
law or the policies of the lawfully constituted Government;
(c) prepares, endeavors or conspires to carry out by force any enterprise which
would, if effected, usurp the executive power of the State;
(d) incites or assists any person or conspires to invade the Republic with force
or unlawfully to subject any part of the Republic to armed attack by land, sea or
air, or assists in the preparation of any such invasion or attack; (e) in the time of
war and with intent to give assistance to the enemy, does any act which is likely
to assist the enemy; or
(f) recruits or trains persons for the implementation of any of the
aforementioned purposes, or participates in any such recruitment or training,
shall be guilty of treason and shall on conviction be sentenced to death.
2. The perpetrator
At common law, only a person owing allegiance to the Republic can commit the
offence of treason. Traceable to feudalism, the doctrine of allegiance is said to
recognize the duality of the relationship between the citizen and the sovereign under
which the former requires the protection of the sovereignty whilst the latter requires
obedience and service. Based on this reciprocal relationship, it is argued that it is
wrong for the citizen to ―betray‖ the trust and commit treasonous acts against his or
her benefactor.
For Malawi, it is clear that section 38 of the Penal Code does not require that the
accused person must owe allegiance to the country. All it says is that ―any person‖
who does any of the prohibited acts under that section is guilty of the offence of
treason. In other words, from the wording of section 38, the requirement that the
accused person must owe allegiance to Malawi is not a definitional element of the
offence of treason. However, when the question came for consideration by the court is
the first case of treason in Malawi after attaining independence of Makawanga and
seven others v Republic231 the Supreme Court of Appeal ruled that it was a definitional
element of the offence of treason that the accused person should hold allegiance to
Malawi. In the words of Bolt, J.:
231 (1966 – 68) 5 ALR Mal 14 (S.C.A.)
217
Now although it might be argued that in Malawi such acts as amount to
treason are clearly defined by s.40 of the Penal Code (cap. 23), nonetheless sub-
s.(1), in referring to ―any person who‖ commits any one or more of the acts in
question, instead of concluding with the normal phraseology–―is guilty of an
offence, of a felony or misdemeanor,‖ ends with ―is guilty of treason‖; and one
must, I think, consider the meaning of the word itself. Basically, it is an act of
treachery, the betrayal of a trust or breach of faith. But all these, and similar
meanings one could think of, postulate a relationship already existing; one can
hardly be guilty of betraying a trust unless there is some sort of bond in
existence.
Consequently, having due regard to the comity of nations and also the fact
that logically some sort of relationship or bond is a prerequisite of a betrayal
thereof, there can be no doubt on the authorities that in relation to the offence of
treason this bond is what has always been referred to as protection on the one
hand and drawing allegiance to the other; consequently the reference in s.40 of
the Penal Code to ―any person‖ must be construed as meaning–―any person
owing a duty of allegiance.‖ In other words, allegiance is an essential ingredient
of the offence of treason.1
Having concluded that allegiance is an essential ingredient of the offence of treason in

Malawi just as is the case at common law, the court also held that all the common law
rules on allegiance applied in Malawi. Again to quote Bolt, J. on the point, he said: As
there is no law in Malawi relating to allegiance (as distinct from treason itself) it
follows that everything I have said about the law, i.e., the common law, of England on
the subject is also the law of Malawi.
Underlying the doctrine of allegiance is a reciprocal agreement between the

citizen from whom acknowledgement of state authority is sought allegiance is
demanded2 and the Republic which provides protection to the citizen. And under this
1
5 ALR Mal 14 at pp. 52 - 53
2
As was stated by Bolt, J., (quoting Stephens on the Laws of England, 21 st ed., (1950) at 529 – 530)
that:
218
Allegiance is the tie which binds the subject to the ruler, in return for the protection
which the ruler affords the subject. This relationship is coloured by the ideas of feudalism, a
system under which it was custom for the vassal to admit his obligation to his lord by
swearing an oath of fealty. There exists at this day a similar oath of allegiance, but this oath is
only exacted from certain person on acceptance of office, from members of Parliament, and
from a few other subjects. Aliens, however, who seek naturalisation are required to take oath
of allegiance…
But, apart from any express oath or affirmation, there is an implied allegiance owing
from every subject to the sovereign. Thus in Coke‟s words,
„all subjects are equally bounden to their allegiance as if they had taken oath; and the
taking of the corporal oath is but an outward declaration of the same.‟
The duty of allegiance is not confined to…subjects; corresponding to the „natural‟
allegiance,…is the so-called „local‟ allegiance which every resident alien friend owes to the
doctrine, both citizens and ―friendly alien‖232 are afforded the protection of the
Republic in exchange of their allegiance to the state. Members of the diplomatic
232 A “friendly alien” is any person who is from a “friendly state and who resides within the
Republic.” As was explained by Bolt, J., in the Mwakawanga cases that:
It will be observed that thus far reference has been made only to what is described as a
friendly alien or one that is in amity…It is necessary, therefore, to consider what precisely
this means. Here, there can be no question at all that such terms as “friendly alien,” “alien
friend” and “alien that is in amity,” have nothing whatever to do with the temperament,
disposition or inclinations of the person concerned, but are used in contradistinction to an
“enemy alien” to an “enemy alien,” which term means the subject of a state actually at war
with one‟s own…One quotation from the judgment of Lord Phillimore in the case of
Johnstone v Pedlar…is sufficient to illustrate the principle…
To begin with the alien takes his character from his State. If his State is at war
with ours is individual friendliness avails him nothing unless it enures to procure for him
the special favour of licence from the King. If his State is in amity with ours he is
considered an alien ami even though his personal intentions are hostile. His individual
hostility does not entitle him to the character of an alien enemy.
219
community are exempted from the principle on allegiance. As far as citizens are
concerned, the mere fact that they reside outside the Republic does not change their
status. Questions about citizenship will have to be resolved by the applicable laws on
citizenship in Malawi.
The Constitution of Malawi and the Citizenship Act regulates the substantive
content of what citizenship means. Under the Constitution, a person can acquire
citizenship by birth, descent, marriage, registration and naturalization.
3. Acts of treason
If one goes through the wording of section 38 (1) of the Penal Code, it becomes
apparent that what is prohibited is the preparing, endeavoring, conspiring, inciting or
King whose protection he enjoys. But no oath of allegiance is ever exacted from him, unless
he should seek naturalisation…
We have this conception of allegiance still lying behind the rule that only a person who
owes allegiance can be guilty of treason or analogous crimes; and resident friendly aliens are
in this respect in the same position as the subjects. But the local allegiance of the former,
generally speaking, lasts only as long as they continue to reside within the realm.
rendering assistance to a achieve certain results, i.e., ―to overthrow the lawfully
constituted Government by force or other unlawful means‖; ―to procure by force any
alteration of the law or policies of the lawfully constituted Government‖; ―to carry
out by force any enterprise which would, if effected, usurp the executive authority‖;
―to invade the Republic with force or unlawfully to subject any part of the Republic
to armed attack by land, sea or air, or assists in the preparation of any such invasion or
attack‖ etc.
It is therefore impracticable to state a certain type of conduct as a definite

requirement for the crime of treason, because the hallmark of treason is not a certain
type of act but the intention with which an act is committed. Any act, however
innocent it may seem to be when viewed objectively, may constitute treason if it is
committed with the requisite mental element. The same can be said of an omission: if
an omission has been done with the required mental element may constitute treason.
To give an example, registering an association of people from a certain district is
220
apparently innocent and a legitimate exercise of a constitutional right: but if it is
accompanied by an intention to turn the group into a rebel group, an otherwise
innocent act becomes treasonous.
Under section 38 of the Penal Code, treason can be committed in times of both
war and peace and the act of treason can be committed either within or outside the
territory of the Republic of Malawi.
4. No attempt, conspiracy, incitement, accomplices or accessories after the fact

The manner in which section 38 (1) of the Penal Code is worded clearly indicates
that all acts of treason are essentially mere attempts, conspiracies or incitements to
destroy the existence, independence or safety of the Republic or government authority.
In other words, on a charge of treason there is no need that the Government should
actually be overthrown or that any definite treasonous plan must be successfully
committed. If it were a requirement for the crime that the treasonous act must be
successfully committed by the accused person (s) and the Government must be
overthrown or cease to exist etc, it would be difficult to prosecute the crime because in
most cases there would then be no Government left to prosecute such ―act of
treason.‖
For this reason, the law does not make any difference between perpetrators and
accomplices because every person who with the required mental element participates
in the doing of the treasonous acts complies with the wide definition of the crime.
However, as a minimum, it must be established that the person involved at least agreed
to commit the offence or a person incited other to commit the crime. But mere
discussion of the possibility of acts of treason, not culminating in any agreement nor
involving any mutual incitement, does not suffice as an act of treason.
5. Unlawfulness
Paragraph (a) to section 38 (1) of the Code defines the treasonous act as
involving preparing, endeavoring or conspiring ―to overthrow the lawfully
constituted Government by…unlawful means. Similarly, paragraph (d) to the same
section defines the treasonous act as involving incitement, rendering of assistance
conspiracy
221
―…unlawfully to subject any part of the Republic to armed attack…‖ The emphasis
has been supplied to highlight the need for the unlawfulness of the act. And unlawful
should be given its ordinary meaning as involving a violation of the laws of Malawi. It
is this element of the crime which prevents a member of an opposition party, who
strives for a change of government, from committing treason.
6. Use of force
Paragraphs (a) to (d) of section 38 (1) require that the act must be committed by
force. Force means that
7. The required mental element

The mental element which must accompany the act consist of an intention to do
any of the prohibited acts as described in paragraphs (a) to (f) of section 38 (1) of the
Penal Code. As required for every offence, the mental element must apply to all the
elements of the offence. For instance, if a person is charged under section 38 (1) (a) of
the Penal Code, it must be established that the accused person acted with the intention
of overthrowing the lawfully constituted Government by force or unlawfully.
The motive of the accused person must not be confused with his intention. Even
though the motive of the accused person may be to create a just society or to remove a
Government that is extremely corrupt or that is violating the fundamental human rights
of its citizens with impunity, but all that will not avail the accused person if the
intention is to ―overthrow a lawfully constituted Government by force or other
unlawful means.‖
B. SEDITIOUS OFFENCES
1. Introduction
Seditious offences are allied to the offence of treason. In England, sedition
remains a common law misdemeanor.233 In Malawi, seditious offences were codified
by sections 50 and 51 of the Penal Code which are a direct derivative of the common
law position. Just as is the case at common law, section 51 does not provide for a
specific offence that can properly be described as ―sedition‖ but rather an assortment
of acts which if committed with a ―seditious intention‖ will amount to sedition.
233 Smith and Hogan, Criminal Law 9th ed. (1999) at p739
222
Central to the offence of sedition, therefore, is the mental status of the accused
person at the time of committing an act, uttering words, printing, publishing, selling or
distributing or importing a publication. An apparently innocent act may become
seditious if accompanied by a ―seditious intention.‖ Section 50 (1) of the Penal Code
defines a ―seditious intention‖ as follows:
Section 50 of the Penal Code defines ―seditious intention‖ as meaning:

(1) A ―seditious intention‖ is an intention–
(a) to bring into hatred or contempt or to excite disaffection against the
person of the President, or the Government;
(b) to excite the subjects of the President to procure the alteration otherwise
than by lawful mean of any other matter in the Republic;
(c) to bring into hatred or contempt or to excite disaffection against the

administration of justice in the Republic; or
(d) to raise discontent or disaffection amongst the subjects of the President; or
(e) to promote feeling of ill-will and hostility between different classes of the
population of the Republic.
But an act, speech or publication is not seditious by reason only that it tends– (i)
to show that the president has been mislead or mistaken in any of his
measures; or
(ii) to point out errors or defects in the Government or Constitution or in

legislation or in the administration of justice with a view to the remedying
of such errors or defects; or
(iii)to persuade the subjects of the President to attempt to procure by lawful

means the alteration of any matter in the Republic; or
(iv) to point out, with intent to their removal, any matters which are
producing or have tendency to produce feelings of ill-will and enmity
between different classes of the population of the Republic.
223
The wording of section 50 (1) of the Penal Code is much similar to the accepted
definition of sedition at common law.234 Speaking in reference to the section, the
Supreme Court of Appeal had the following to say in the case of Chihana v
Republic235: In our judgment, each definition of seditious intention provides a distinct
foundation for a separate count of sedition. The definitions in S. 50 (1) of the Penal
Code should be construed disjunctively and not cumulatively. We are reinforced in
this view by the use of the word ―or‖ at the end of each paragraph clearly indicating
that they are to be treated as alternatives.
3. The prohibited conduct

Section 51 (1) of the Code lists down an ―assortment of offences‖ called
seditious offences. The section provides as follows:
(1) Any person who–

(a) does or attempts to do, or makes any preparation to do any act with a
sedition intention;
234 See Smith and Hogan, Criminal Law at p. 739 to 740 quoting Stephen where seditious intention
is defined as follows:
…an intention to bring into hatred or contempt, or to excite disaffection against the
person of Her Majesty, her heirs or successors, or the government and constitution of the
United Kingdom, as by law established, or either House of Parliament, or the administration
of justice, or to excite Her Majesty‟s subjects to attempt, otherwise by lawful means, the
alteration of any matter in Church or State by law established, or to raise discontent or
disaffection amongst Her Majesty‟s subjects, or to promote feelings or ill-will or hostility
between different classes of such subjects.
An intention to shew that Her Majesty has been misled or mistaken in her measures, or
to point out errors or defects in the government or constitution as law established, with a
view to their reformation, or to excite Her Majesty ‟s subjects to attempt by lawful means the
alteration of any matter in Church or State by law established, or to point out, in order to
their removal, matters which are producing, or have a tendency to producing feelings or
hatred or ill-will between classes of Her Majesty‟s subjects, is not a seditious intention.
235 M.S.C.A. Criminal Appeal No. 9 of 1992
224
(b) utters any seditions words;
(c) prints, publishes, sells, offers for sale, distributes or reproduces any
seditions publication;
(d) imports any seditious publication, unless he has no reason to believe that it
is seditious,
shall be liable…
(2) Any person who without lawful excuse has in his possession any seditious
publication shall be liable…
Each of these paragraphs must be discussed separately.

(i) The offence under section 51 (1) (a) of the Code
Paragraph (a) to section 51 (1) of the Code prohibits the doing, attempting or
preparation to do ―any act with a seditious intention.‖ Under this paragraph, it is not
possible to state in advance what act is prohibited; the question whether an act is
prohibited will depend on the intention with which it is committed. Any act, if
accompanied by a seditious intention, will suffice as a prohibited conduct under the
paragraph regardless of how innocent it may seem to be when viewed objectively. For
instance, if a person imports printing machine into the country with the intention of
printing seditious materials, he can be charged under the section. What this means that
the question whether an act is seditious or not will depend not on the act itself but
rather the quality of the intention with which the act is done.
It is submitted that, the phrase ―any act‖ as used in the paragraph should be
interpreted as meaning even an omission as long as it is accompanied by the requisite
seditious intention.
(ii) The offence under section 51 (1) (b) of the Code

Under paragraph (b), the prohibited conduct consists of uttering of ―seditious
words.‖ And under section 45, the phrase ―seditious words‖ is interpreted as meaning
―words having a seditious intention.‖ Words will be said to have ―seditious
intention‖ if they have a tendency either to bring into ―hatred or contempt or to excite
disaffection against the person of the President or Government‖; or ―to excite the
subjects of the President to procure the alteration otherwise than by lawful mean of
any other matter in the Republic‖; or ―to bring into hatred or contempt or to excite
disaffection against the administration of justice in the Republic;‖ or ―to raise
225
discontent or disaffection amongst the subjects of the President;‖ or ―to promote
feeling of ill-will and hostility between different classes of the population of the
Republic.‖
(iii) The offence under section 51 (1) (c) of the Code

Under this paragraph the prohibited conduct consists of the printing, publication,
selling, offering for sale, distribution or reproduction of ―seditious publication.‖
Under section 45 of the Code, the phrase ―seditious publication‖ is interpreted as
meaning ―a publication having a seditious intention.‖ A publication will be deemed
seditious if it has the tendency to either bring into ―hatred or contempt or to excite
disaffection against the person of the President or Government‖; or ―to excite the
subjects of the President to procure the alteration otherwise than by lawful mean of
any other matter in the Republic‖; or ―to bring into hatred or contempt or to excite
disaffection against the administration of justice in the Republic;‖ or ―to raise
discontent or disaffection amongst the subjects of the President;‖ or ―to promote
feeling of ill-will and hostility between different classes of the population of the
Republic.‖
(iv) The offence under section 51 (1) (d) of the Code

What has been said in respect of the prohibitions in paragraphs (b) and (c)
applies to paragraph (d) under which the targeted conduct as consisting of importation
of ―a seditious publication, unless he has no reason to believe that it is seditious.‖
(v) The offence under section 51 (2) of the Code

Lastly, section 51 (2) of the Code criminalizes the possession of any seditious
publication.
In Chihana v Republic it was argued before the Supreme Court of Appeal that
sedition requires proof of incitement to violence. Having considered the relevant
definitions as contained in section 51 of the Code the court came to the conclusion that
none of the definitions in section 51 of the Code require proof of incitement to
violence.236
236 In coming to this conclusion, the court had the following to say:
226
The words in the different paragraphs of section 51 (1) of the Code must be
given their ―ordinary grammatical meaning.‖237
4. Proving the seditiousness of words or publications

As far as the offences in paragraphs (b), (c) and (d) are concerned, it is not
enough that the words are uttered or the publication is printed, published, sold,
distributed or imported with a seditious intention: there must also be an actus reus
consisting of the words themselves or the publication itself being seditious. A person
who tells people that the President‘s brother is a bad cook and does so with the
intention of bringing ―into hatred or contempt…the person of the President‖ cannot
be convicted of sedition just because he has said something in respect of the president
with a seditious intention. The court will also have to examine whether the words that
the President‘s brother is a bad cook have the tendency to ―bring into hatred or
contempt…the person of the President.‖
Proving the intention of the accused person at the time of doing an act is,
therefore, the most difficult part in the prosecution of the offence of sedition. Section
50 (2) of the Penal Code provides guidelines on how that is to be done. The section
reads:
In determining whether the intention with which any act was done, any words
were spoken or any document was published was or was not seditious, every
person shall be deemed to intend the consequences which would naturally follow
from his conduct at the time and under the circumstances which he so conducted
himself.
It is our considered view and are satisfied that S. 50(1) (b) is capable and does involve
an element of incitement to violence, but it is possible to prove a charge of sedition under
that paragraph by proof of unlawful means short of violence. Similarly we are equally
satisfied and find that the other definitions of seditious intention do not involve an element
of incitement to violence. The words “hatred, contempt and disaffection” in S. 50(1) (a) must
have their ordinary grammatical meaning. Consequently, to the extent that the learned trial
judge found that incitement to violence was not an element in the law of sedition in Malawi
he was clearly wrong.
237 Chihana v Republic M.S.C.A. Criminal Appeal No. 9 of 1992
227
In Chipembere v Reginam238239 the Federal Supreme Court explained section 56 (2) of
the Penal Code, 1957 and which is worded in exactly the same way as section 50 (2)
of the Code as follows:
A sub-section corresponding to sub-s (2) was considered by this court in

Buchanan v. R in which is was held…that ―the word ‗deemed‘ was not meant
to allow artificial intention to shut out actual intention‖ and that the subsection
allowed of ―the consideration of evidence outside the publication itself in
deciding whether or not there was seditious intention.‖2
In other words, a determination must be made as to the ―actual‖ meaning of the words
objectively. The same approach was followed by the Supreme Court of Appeal in
Chihana v Republic240 where the court had to consider the circumstances in which the
alleged seditious words were said including the explanation given by the appellant as
to the particular sense in which he used the concerned words.
The fact that the statements are actually true is no defence 241 and neither is the
sincerity or honesty with which the accused person holds his opinion.242
In determining whether the words or act or publication is seditious, the statement

by the High Court in Republic v Chihana243 is in order here. The court quoted with a
approval a statement of the law from the case of Buchanan v Reginam244 the following
passage:
Clayden, F.J., delivering judgment to the Court put it thus at page 527, paragraph
(g):
―Generally on the merits it was urged by the appellant that intent could not
be found merely by inference from the publication. But that argument is
wrong. In Wallace Johnson v The King, (supra) it was said at p. 241: ―The
submission that there must be some extrinsic evidence of intention outside
238 (1961 – 63) 2 ALR Mal 83
239 ALR Mal 83 at pp 88 – 89
240 M.S.C.A. Criminal Appeal No. 9 of 1992
241 Chihana v Republic M.S.C.A. Criminal Appeal No. 9 of 1992
242 Ibid
243 Criminal Case No 1 of 1992 (H.C.)
244 (1957) R & NLR 523
228
the words themselves, before seditious intention can exist, must also fail and
for the same reason. If the words are seditious by reason of their expression
of a seditious intention as defined by the section, the seditious intention
appears without any extrinsic evidence.‖
It will be seen from the above cases that the most important indicator of the intention
of the writer or publisher of a document is the article itself. Put simply, intention is to
be inferred from the language of the article. But a word of caution is in order here. As
was observed by Counsel for the accused, the documents must be read as a whole. In
other words, it would be unfair to judge the intention by isolated passages or
statements in the article without reference to the general drift or context.
5. Defence
Section 50 of the Code contains a statutory defence as follows:
But an act, speech or publication is not seditious by reason only that it intends–
(v) to show that the president has been mislead or mistaken in any of his
measures; or
(vi)to point out errors or defects in the Government or Constitution or in

legislation or in the administration of justice with a view to the remedying
of such errors or defects; or
(vii) to persuade the subjects of the President to attempt to procure by

lawful means the alteration of any matter in the Republic; or
(viii) to point out, with intent to their removal, any matters which are
producing or have tendency to produce feelings of ill-will and enmity
between different classes of the population of the Republic.
In Useni and others v Reginam1 it was observed, in reference to section 56 (1) of the
Penal Code, 1957 and a predecessor to section 50 (1) of the Code, that the effect of
section 56 (1) of the Penal Code, 1957 declare that ―fair and reasonable political
polemics and criticism are not seditious.‖ 2 But beyond such a fair and reasonable
political polemics, the criminal law will intervene.
At common law truth is not a defence to a charge of sedition.
1
(1964 – 66) 3 ALR Mal 250
229
2
3 ALR Mal 250 at p. 261
6. Sedition and human rights

At common law it has long been acknowledged that the offence of sedition must
be balanced against the freedoms of expression and of the press. As early as 1887, in a
statement to the jury in a sedition case, it was observed that:
You will recall how valuable a blessing the liberty of the press is to all of us, and
sure I am that that liberty will meet no injury – suffer no diminution at your
hands.245
Or in the words of Archbold246, that:

[Sedition] does prevent candid, full and free discussion of any public matter,
which is the right of every citizen, unless the discussion takes place in
circumstances calculated or intended to incite tumult.247
The potential restrictive effects of sedition on some of the fundamental human

rights and freedoms was recognized by the Supreme Court of Appeal in Chihana v
Republic as early as 1992 and even before the passage of the current Constitution. In
that case, the Supreme Court of Appeal was confronted with the argument advanced
by Counsel for the appellant to the effect that the laws on sedition in Malawi are
inconsistent with the right to freedom of expression as guaranteed by the United
Nations Declaration of Human Rights and which was incorporated into the laws of
Malawi by virtue of section 2 (1) (iii) of Schedule 2 to the 1966 Constitution of
Malawi which provided that:
The Government and people of Malawi shall continue to recognize the sanctity
of the personal liberties enshrined in the United Nations Declaration of Human
Rights and of adherence to the law of Nations.
In its ruling on the matter the Supreme Court of Appeal made the following
observations:
We accept that the UN Universal Declaration of Human Rights is per of the

law of Malawi and that the freedoms which that Declaration guarantees must be
respected and can be enforced in these Courts. It seems to us, therefore, that it is
245 Per Cave J in Burns (1886) 16 Cox CC 355 at p. 362
246 Archbold Pleading, Evidence and Practice in Criminal Cases 40th ed. (1979)
247 At para. 3148
230
the right of every citizen of the Republic of Malawi to have a candid, full and
free discussion on any matter of public interest. It is open to every citizen of the
Republic to express his or her concern on any aspect of Government policy. This
Court must be the protector of the fundamental Human Rights which are part of
our law. However, that right to freedom of speech or expression may be subject
to restrictions and limitations…
However, it does not follow in our judgment that any section enacting the
law of sedition must of necessity invariably be inconsistent with a constitution
which guarantees the right of freedom of speech and expression. It must and will
depend upon the facts and circumstances of each particular case having regard to
the words of a particular law of sedition and the provisions of the
Constitution in issue…
It is clear, therefore, that even principles of English common law recognize
the restrictions and limitations which are imposed on the right to freedom of
speech. There can be no doubt, therefore, in our judgment, that from the
authorities cited before us, the limitations and restrictions on the right to freedom
of speech and expression are of universal application. We are satisfied and find
that there is nothing inconsistent between the law of sedition as provided for in
S.50 and S. 51 of the Penal Code and the Constitution of Malawi. We are
satisfied that the restrictions and limitations which the criminal law of Malawi
imposes on the right of freedom of speech are no more a flagrant violation of the
purposes and principles of the UN Universal Declaration of Human Rights any
more than the principles of English common law and the European Convention
on Human Rights do. It is, therefore, wrong to describe or treat the right to
freedom of speech as absolute.
According to the Supreme Court of Appeal, restrictions may be placed on the right to
freedom of expression ―in the interest of national security, for the prevention of
disorder or crime and for the protection of the reputation and rights of others who may
be the object of criticism.‖
But the Chihana v Republic case was decided a almost two years before the
adoption of the current Constitution which, as discussed above, has an entrenched Bill
of Rights, adopt as one of its guiding principles the principle of the protection of
human rights and, arguably, calls for a human rights-based approach to criminal law in
Malawi. Three rights are potentially affected by Malawi‘s seditious laws, viz., the
231
rights to freedom of opinion248, freedom of expression249 and, lastly, freedom of the
press250. The question whether the seditious offences are constitutional or not will have
to be reexamined within the context of the 1994 Constitution by examining whether
they meet the constitutional muster that is required of every limitation of any right
guaranteed in the Constitution. And according to sections 44 (2) and 44 (3) of the
Constitution, any limitation or restriction on the rights guaranteed in the Constitution
must be ―prescribed by law‖, ―reasonable‖, ―recognized by international human
rights standards‖, ―necessary in an open and democratic society,‖ should not ―negate
the essential content of the right or freedom in question‖ and, lastly, must be of general
application.
248 The right to freedom of opinion is provided in section 34 of the Constitution which provides as
follows:
Every person shall have the right to freedom of opinion, including the right to hold
opinions without interference to hold receive and impart opinions.
249 Section 35 of the Constitution, which reads:
Every person shall have the right to freedom of expression.
250 Section 36 of the Constitution, which provides:
The press shall have the right to report and publish I freely, within Malawi and abroad,
and to be accorded the fullest possible facilities for access to public information.
232
CHAPTER ELEVEN
OFFENCES AGAINST MORALITY
A. INTRODUCTION
CHAPTER XV of the Penal Code provides for what are called ―offences
against morality.‖ The issue about the propriety of the naming in respect of some of the
offences included in the CHAPTER has already been discussed above. However, as a
matter of recap, it should be pointed out that the offences in the CHAPTER can be
properly grouped into two categories: those that can be said to be offences against
morality proper and offences against the bodily integrity of its victims. The first
category of offences include offences pertaining to prostitution in sections 145, 146
and 147 of the Penal Code, unnatural offences in sections 153 and 154 of the Code,
and incest offences in section 157 of the Code. The rest of the offences in the
CHAPTER are basically offences against bodily integrity and include offences such as
rape, defilement, indecent assault, abortion, abduction and detention.
The reason why the law criminalizes rape or defilement cannot be said to be on
moral grounds but rather to protect the bodily integrity of women and young girls
respectively. It has been argued the wrongfulness of rape stems from its disrespect to
the autonomy and bodily integrity of women. However, for the purposes of our
discussion, we will follow the classification of the Penal Code and will treat all these
offences together.
B. RAPE
1. Definition
Section 132 of the Penal Code provides:
Any person who has unlawful carnal knowledge of a woman or girl, without
her consent, of with her consent if the consent is obtained by force or means
233
of threats or intimidation of any kind, or by 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, shall be guilty of a felony termed rape.
To reflect the society‘s abhorrence for the offence of rape, the punishment for rape is
death or imprisonment for life1 in effect putting the offence on the same pedestal with
offences of murder2 and treason.3 The advent of HIV/Aids pandemic has rendered the
offence of rape extremely dangerous and with very serious and devastating
psychological and physical consequences.
The current definition of rape follows the old English common law approach to
the offence: an approach that was abandoned in England in 1994 with the enactment in
that country of the Criminal Justice and Public Order Act 1994. The Criminal Justice
and Public Order Act 1994 has radically altered the parameters of the offence of rape
in England.4
2. The prohibited conduct for the offence of rape
(a) Sexual Intercourse (carnal knowledge)
At the core of the offence of rape is sexual intercourse. The Penal Code uses the
old English phrase of “carnal knowledge” which means sexual intercourse. Though
it might appear straightforward at the first glance, the idea of sexual intercourse
1
2
3
See section 38 (1) of the Penal Code
4
Under section 142 of the Criminal Justice and Public Order Act 1994, rape is defined as follows:
(1) It is an offence for a man to rape a woman or another man.
(2) A man commits rape if –
(a) He has sexual intercourse with a person (whether vaginal or anal) who at the time of
the intercourse does not consent to it; and
234
(b) At the time he knows that the person does not consent to the intercourse or is reckless
as to whether that person consents to it.
(3) A man also commits rape if he induces a married woman to have sexual intercourse with
him by impersonation her husband.
…
sometimes acquires a complexity of its own if all the modes (or styles) how people
chose to experience sexuality is taken into account.
Unfortunately our criminal law, does not define what carnal knowledge means.
It has therefore been left to courts of law to define what carnal knowledge is. Our
courts on their part have followed the English common law conception of sexual
intercourse which, unfortunately, has been abandoned in English after the passage of
the Criminal Justice and Public Order 1994. Following the English common law,
courts of law in Malawi have held that sexual intercourse consist of the penetration of
the penis into a vagina251. As a minimum, therefore, there must be proof of penetration
however slight252. Even where the penetration is of such a depth not to rupture the
hymen, sexual intercourse will be said to have taken place. 253 Nor is it necessary to
prove emission of semen or sperms.254
Our law follows the traditional conception of sex and is heterosexual in

orientation: the penetration must be of the penis into the vagina. In England, the
definition of rape was changed in a major way by the Criminal Justice and Public
Order Act of 1994 and includes anal penetration. Even without statistical evidence on
the prevalence of sexual practices where anal connection was used or the number of
women who have been penetrated in the anus without in circumstances which would
have amounted to rape if the man had preferred vaginal penetration, it is submitted that
there is a need to seriously consider extending the definition of sexual intercourse to
include anal penetration if indeed the bodily integrity of women and girls is to be
effectively protected. In the first place, anal penetration without consent violates the
251 See Mariette v Republic (1966 – 68) 4 ALR Mal 119 (H.C.); Republic v Fred 8 MLR 48 (H.C.);
M‟bwana v Republic 8 MLR 159 (H.C.);
252 Ibid
253 Ibid
254 Ibid
235
bodily integrity of those it is forced upon them as vaginal penetration. The only
difference is the choice of place of penetration of the criminal. The fact that he chose
to do it in the anus and not in the vagina does not make much of a difference. As a
matter of fact, it reinforces his power over the unfortunate female. Secondly, as a
matter of fact, the risk of infection of sexual transmitted diseases is ever present in
both cases.
(b) The offender and victim
Under the Penal Code, rape can only be committed by a male of at least 12 years
of age255 against a female of at least 13 years of age. 256 It is necessary that the victim
must be alive. Although a woman cannot commit the crime, she can be guilty as an
accomplice to its commission, as where she induces another woman by threats to
submit to intercourse with a male. If the male acts with the required mens rea for the
offence, he will be guilty as a perpetrator and the woman will be an accomplice. If the
man lacks the required mens rea then he will not be guilty as a perpetrator. However,
the woman will be guilty as an accomplice.
There is debate current raging in Malawi on whether a woman can commit the
offence of rape. The current definition of rape limits rape as the conduct of a man
against a woman. What of those cases where a woman has sexual intercourse with a
man in circumstances where there is no consent on the part of the man? This can
happen either after the woman threatens the man with violence or intimidation of any
kind, or by means of false representation as to the nature of the act or, indeed, by
impersonating the wife of the man. The matter can only be resolved through proper
consultations involving different stakeholders.
255 Section 14 of the Penal Code provides in part as follows:
“… A male person under the age of twelve years is presumed to be incapable of having
carnal knowledge.”
256 Unlawful sexual intercourse between a male person and a female under the age of
thirteen years of age (with or without consent) is defilement, an offence under section 138 (1) of
the Penal Code that reads as follows:
shall be guilty of a felony and shall be liable to imprisonment for life.
236
There is an irrebutable presumption in our law that a male person under the age
of twelve years is incapable of having carnal knowledge of a woman. It would seem
the origin of the rule lay on a presumed age when a male person can emit semen and
procreate children. The illogicality of the rule lays in the fact that it ignores the
physical developments of the boy and his mental condition at the time of the doing of
the act. It is submitted that this presumption should be abandoned. The fiction is
unsupportable on any ground. It is not hard to think of cases where the evidence before
the court could point to a clear case of rape and to exonerate such a boy based on
fiction is unsound to say the least. Our criminal law cannot afford to be based on
fiction. The ability to emit semen or procreate is immaterial, because the reason for
punishing rape is to protect the general sexual integrity of women and girls.
The last question is whether a husband can rape his wife, the so called ―marital
rape‖. The Penal Code is unclear on the question. However, the inclusion of the term
“unlawful” in the definition of rape in section 132 of the Penal Code has been
interpreted to exclude marital rape257. This has been the position in England for a long
time until the term “unlawful” was dropped from the definition of rape in section 142
of the Criminal Justice and Public Order Act of 1994 quoted above. In England before
the passage of the Criminal Justice and Public Order Act, and in Malawi now, in such
cases the husband would be guilty of assault. A husband can, however, be guilty as an
accomplice to the rape of his wife. Before we can come to the question whether the
current position should be retained or changed, we have to explore the originality of
the rule. The origins of the marital rape exemption lie in the notion that, at the time of
marriage, the wife gave irrevocable consent to intercourse with the husband.
Recently, the marital rape exemption has been defended on the basis that such cases
would be difficult to prosecute because they raise family matters. There has not been
much debate on the matter in Malawi. However in England the marital rape exemption
was judicially abolished by the House of Lords in the landmark case of R (Marital
Rape)258. The major reason for the abolishment of the rule was that the view that,
through marriage, a wife accords the husband an irrevocable consent to intercourse is
unsupportable and unacceptable in modern times in which social conditions and
expectations have changed. The court, consequently, recommended that the term
257 Republic v Mwasumola (1966 – 68) ALR Mal 569
258 [1992] AC 599
237
―unlawful‖ in the definition of rape be removed. The legislature endorsed this
position through section 142 of the Criminal Justice and Public Order Act of 1994.
What about in Malawi? In a country committed to the protection of women, and

where such protection includes protecting them from practices such as ―sexual abuse,
harassment and violence‖, there is a need to decide whether women need to be
protected from domestic violence even where such violence takes the form of sexual.
Consider the case of a husband who beats his wife hard and then whilst she is
bleeding, he has sex with her. Both the physical assault and the sex is a way to show
physical power over the poor wife. We should turn to the Prevention of Domestic
Violence Act to see what the position is…
(c) Sexual intercourse without the consent of the woman
The core of the wrong that is rape is the absence of consent on the part of the
woman or girl to the sexual intercourse. That lack of consent is an essential feature of
the prohibited conduct of the offence of rape. Whether the woman consented or not is
essentially a question of fact. Section 132 provides some guidelines on the matter by
providing that consent will be said not to exist where, firstly, the woman has not
consented, secondly, where she has consented but the consent was obtained by force or
means of threats or intimidation of any kind, thirdly, where consent is obtained by
means of false representation as to the nature of the act and, lastly, in the case of a
married woman, when the man impersonates her husband.
The woman need not expressly indicate her lack of consent or objection to the
intercourse. It is imperative for the accused person to make sure that the woman
consents to the intercourse. Further, the consent must be obtained before the
intercourse and must persist throughout the intercourse. The facts of the case in
Republic v Shauti1 should be considered here. In the case, the accused person, who
claimed to be a “witchdoctor capable of making barren women fertile and of healing
the sick,” was approached by one of the complainants in the case for help as she
could not bear children. In one of her trips to the house of the accused person
seeking help, the accused person advised her to sleep at his house. At night, he
asked the complainant to undress herself because he wanted to examine her to see
what exactly prevented her from having children. The complainant obeyed and lay
238
on her back. The accused person then proceeded to have sexual intercourse with the
complainant who did not protest throughout the intercourse. After the intercourse,
the complainant asked the accused person what he had done. The
1
8 MLR 69 (H.C.)
Accused person explained that that was his method of examining his patients. He
went further to assure the complainant that following the intercourse she will
become fertile and be able to bear children. The complainant believed the story. She
went home and told her husband who was displeased with what had happened and
reported the accused person to the authorities who later arrested him. He was
charged with the offence of rape and pleaded guilty to the charge. The matter came
to the High Court for confirmation. The court did not dwell on whether the facts
prove the offence of rape or not. Suffice to mention that had the court considered
the question, it is clear the conviction would have been upheld. As far as the issue of
consent was concerned, even though the woman did not protect to the intercourse in
any manner, the mere fact that the accused person never obtained her consent to the
penetration in the first place render the intercourse rape.
Even if the woman consents to the intercourse and later withdraws it, the
accused person is expected to withdraw at that very moment otherwise continued
intercourse will amount to rape even though the initial penetration was not.
Historically, at common law the emphasis was placed on the violence or force
accompanying the intercourse. But whilst it is true that in most cases of rape force is
used against the victim, the use of force is not a definitional element of the offence
though it may be relevant evidentially is some case. The current position under
Malawian criminal law places emphasis on the absence of consent to the
intercourse on the part of the woman. This position is best evidenced by the case of
Republic v Nzina259 where the court held that where the accused has sexual
intercourse with a sleeping woman, knowing that she is asleep and incapable of
consenting, will amount to rape. The same applies where the victim is unable to
give or withhold consent as where she is unconscious.
Rape can also be committed where an apparent consent is not real consent.
Three scenarios can be considered can be considered.
259 (1966 – 68) ALR Mal 263
239
(i) Cases of threats or intimidation
Section 132 of the Code provides that where the woman consents to the
intercourse after being threatened or intimidated or where she is afraid of any bodily
harm such consent will not suffice as real consent for the purposes of the offence of
rape. A number of point need to be raised here. Firstly, the threats or intimidation may
be either express or implied. A woman who wakes up in the middle of the night to
discover a group of criminal heavily armed in her bedroom will be said to be raped if
she submits to the intercourse even if no express threats are issued to her. In other
words, the situation itself is quite intimidating.
Secondly, the threatened bodily harm can be directed either against her or
another person. A woman who is told either to submit to sexual intercourse or to have
her relatives killed or bodily injured in any way one cannot be said to have consented
to the intercourse.
What if the woman is threatened or intimidated with unpleasant social and

economic consequences, for instance, where she is told either to submit to the sexual
intercourse or be fired from her job after she has committed a dismissible offence?
Section 132 of the Penal Code provides that “intimidation of any kind” is sufficient
to vitiate consent. Where the consent is induced with a promise to pay for the sexual
intercourse, the consent will be treated a real consent because the fraud would relate to
collateral matter and not to the nature of the act.
Consider the case of a woman who agrees to sexual intercourse on condition that
the man wears a condom. During the act, the woman realizes that the man did not put
on a condom as agreed and then withdraws her consent, if the man continues, is he
guilty of rape? As a matter of principle, where there is initial consent to intercourse but
that consent is withdrawn while intercourse is taking place, it is rape to continue with
intercourse.
(ii) False representation as to the nature of the act
It is possible for some crooked individuals who can trick women to consent to
sexual intercourse by falsifying the nature of the act. What is required is that the
falsification must relate to the ―nature of the act‖ and not the purpose or motive of it.
240
(iii) Impersonating the husband of the victim
3. The mental element for the offence of rape
The mental element for the offence of rape can take two forms: intention and
recklessness.
(a) Intention
In the first place, a person will be said to have committed the offence of rape if
he does so intentionally, i.e., if he intended to have sexual intercourse with a woman
without her consent. In this case, the accused person must be aware that the woman
has not consented to the sexual intercourse. Accordingly, if the accused person
honestly and reasonably believes that the woman is consenting to the intercourse, he
cannot be said to have the requisite mens rea for the offence of rape, that is to say, an
intention to have sexual intercourse with a woman without her consent.
(b) Recklessness
The second form of mens rea for the offence of rape is recklessness consisting of
an awareness of a risk of non-consent on the part of the woman. Here the attitude of
the accused person is that he ―could not care less‖ whether the victim was consenting
or not.
4. Possible defence
Possible defences to a charge of rape include compulsion, mistake and

immaturity. In a charge for rape, self-induced intoxication is no defense, whether the
issue be intention or mistake as to the identity of the victim.
C. INDECENT ASSAULT
1. Introduction
Section 137 (1) and (2) of the Penal Code provides:
(1) Any person who unlawfully or indecently assaults any woman or girl shall
be guilty of a felony and shall be liable to imprisonment for fourteen years.
241
(2) It shall be no defence to a charge for an indecent assault on a girl under the
age of thirteen years to prove that she consented to the act of indecency.
Simply put, an indecent assault is an assault accompanied by indecency. Refer the case
of Watipasa Mzungu v R. In the case the accused invited a girl of 13 years to his
house on pretence that he would be teaching her. He eventually turned on her and
started to undress her. After indecently rubbing her private parts with his penis, he let
the out of the house through the window. Court held that there was not defilement but
indecent assault. He was convicted.
(a) Assault
As a minimum, it must be established that an assault was committed by the

accused person on the complainant. And an actus reus of an assault consist of both the
unlawful physical invasion of the person of another and the apprehension caused in the
mind of the victim though the apprehension may be non-sexual. It is necessary that the
complainant must do something to the complainant or causes the complainant to
apprehend that the defendant will do something to him.
The assault itself may be non-sexual. For instance, where the accused person
took the hand of a woman and placed it on his private parts. The assault in such a case,
the touching of the hand of the woman, is not sexual in nature. Or where the accused
person threatens a woman with a knife and demands that she undress and run in a
public place.
In Chilunga v Republic260 it was held that an assault had been committed when a
man had put his arm around the waist of a woman against her will. The court in the
case emphasized the fact that this is the case especially in this country. Very few
would dispute that finding. For a man to put his arm around the arm of woman without
her consent would cause great embarrassment and discomfort to most women.
(b) Unlawful assault
260 (1968 – 70) 5 ALR Mal 338
242
The assault must be unlawful in the sense that it must be contrary to general or
customary law.
(c) Indecency
The second most crucial definitional element of the offence of indecent assault,
and one that distinguishes it from other forms of assaults, is that the assault must be
accompanied by an indecency.261 This is different from saying that the assault
must be accompanied by an indecent motive 262 or intention. In other words, the
nature of the act itself must be indecent if viewed objectively and having regard to all
the circumstances of the case.
It is submitted that courts of law in Malawi should follows the approach of the
House of Lords in Court where three categories of conduct were identified: (a)
conduct which is inherently decent; (b) conduct which is inherently indecent; and (c)
conduct which may or may not be indecent.
Inherently decent conduct
Conduct is inherently decent if it cannot be indecent even if accompanied by an

indecent intention or motive. For instance, smoothing a woman‘s cheek without her
consent will amount to a common assault notwithstanding that the defendant derived
some sexual pleasure in merely touching and feeling the woman‘s cheek. In other
words, the touching may be an assault but which is not indecent. Thus whilst the
accused person can be convicted of common assault under section 253 of the Penal
Code by merely touching the cheek of the woman without her consent, he cannot be
convicted of the indecent assault under section 137 (1) of the same Code.
Inherently indecent conduct
Inherently indecent conduct is indecent by its very nature, regardless of the

motive or intention of the defendant. A good example of such conduct is an intimate
examination of the private parts of a woman. If the woman consents to such an
examination there will be no indecent assault. In the Court case, a hypothetical cases
261 Tinazari v Reginam (1964 – 66) 3 ALR Mal 184
262 Ibid
243
was given of a doctor who takes a vaginal sample from a woman under the guise of
diagnosis when, in reality, he intends to use the sample for his own purpose. By
falsifying the true nature of the act, no valid consent will be given and, since the
conduct is inherently indecent, he can be charged and convicted of the offence of
indecent assault.
Conduct which may or may not be indecent
Conduct that fall in this category acquires its quality (decent or indecent) from
the intentions or motives of the defendant. A thief in trying to snatch a pulse from a
woman and touches her breast, that will be common assault. However, if the same man
touches the breast for sexual gratification, that will be indecent assault. In Chilunga v
Republic the appellant had put his arm around the waist of the complainant and pulled
her into the bush for sexual intercourse. Having found that the putting of his arm
around the waist of a woman without her consent constituted an assault, the court went
further to find the act indecent after having regard to the manner in which it was done
viz., it was in the presence of other people and the pulling of the woman into the bush
for sexual intercourse. If the appellant had placed his arm around the waist of the
complainant against her will in the presence of other people but whilst trying to
restraining her from fighting another person, the finding of the court would have been
different.
(d) Consent
Consent negatives assault. But under section 137 (2) of the Penal Code, consent
is not a defence to a charge for an indecent assault on a girl under the age of thirteen
years.263 As is the case of rape, consent exacted by threats, intimidation or falsification
of the nature of the act is not valid consent.
(e) Offender and victim of the offence
Though not expressly considered by Malawian courts, at common law, the

offence can be committed by both men and women against women. Section 137 (1) of
the Penal Code provides that ―any person‖ and there is nothing in the section
263 See Republic v Mwale (1966 – 68) 4 ALR Mal 354
244
indicating that only men can commit the offence. It is possible for a husband to
commit the offence of indecent assault against his wife.
3. The mental element
The mens rea for the offence of indecent assault consists of an intention. The
intention must relate to all elements of the offence: firstly, the accused person must
intend to commit an assault against the complainant (and which assault it either
inherently indecent or is indecent having regard to the circumstances accompanying it)
and, secondly, the accused must intend to commit such an assault knowing that it is
inherently indecent or aware of the circumstances accompanying it which make it
indecent.
Recklessness will not suffice.
D. DEFILEMENT OF GIRLS UNDER THE AGE OF THIRTEEN YEARS
1. Definition
Section 138 (1) of the Penal Code make it an offence for a person to
―unlawfully and carnally‖ know any girl under the age of thirteen. Whilst the offence
of rape protects the bodily the sexual integrity of women, the offence of defilement
goes further: it seeks to protect young girls from sexual exploitation. For that matter,
the offence of defilement can be committed even if the girl consents to the sexual
intercourse. The physical and social consequences of intercourse require that only
people who are fully prepared to face the physical and social consequences of sex
should engage in the act. This is truer considering the grim statistics on maternal
mortality rate particularly among young mothers in Malawi. It therefore makes a lot of
sense to criminalize sexual intercourse between males against young girls.

(a) Sexual intercourse
Sexual intercourse is a one of the definitional elements of the offence of
defilement that must be proved as a minimum. It is not necessary to discuss in detail
what sexual intercourse mean for the obvious reason that all the requirements of sexual
245
intercourse as discussed under the offence of rape applies to defilement, i.e., there
must be proof of penetration however slight and it is not necessary to prove
ejaculation.
(b) A girl under the age of thirteen
It is necessary that the age of the girl must be established. This is ordinarily done
by requiring the girl to undergo medical examination in which case the she is Xrayed
for that purpose or, alternatively, where such medical facilities are not available at the
nearest hospital, the girl‘s parents or guardian or any other person who can testify as to
the age of the girl can be called to testify as to complainant‘s exact date of birth.264
(c) “Unlawful” sexual intercourse

It is necessary to establish that the intercourse must be ―unlawful‖ which means
that it must not be sanctioned by the law.
There are cultural practices in Malawi that require that girls who have just
undergone initiation ceremonies should have sexual intercourse with older men
allegedly to test whether or not they have grasped whatever they are taught regarding
sex. Some of the girls are below the age of thirteen years and the question is whether
such intercourse amounts to defilement. Considering the requirement that the
intercourse must be ―unlawful‖, it is likely that courts of law will hold that the
offence of defilement has not been committed.
(d) Consent of the girl

The definition of the offence of defilement under section 138 (1) of the Penal
Code does not include the lack of consent on the part of the girl as a definitional
element of the offence. Thus, consent on the part of the girl is not a defence to a
charge of defilement.265 However, consent may be relevant for the purposes of
sentencing. As was stated by the court in Republic v Goliati and Jonas266, that: It
must be stated quite clearly, lest there be misunderstanding, that consent of the
complainant provides no defence to a charge of defilement. A girl who is under the
age of thirteen is not capable of giving that consent. Be that as it
264 See Republic v Malanda 12 MLR 213 (H.C.)
265 See Regina v Kaluwa (1964 – 66) 3 ALR Mal. 356 (H.C.); Republic v Milanda 12 MLR 213 (H.C.)
266 (1971 – 72) 6 ALR Mal 251
246
may, the question of consent may be taken into account in considering the
sentence.1
3. The mental element for the offence of defilement

Just as in the offence of rape, the mental element for the offence of defilement
consists of an intention and recklessness.
(a) Intention
The accused must have the intention to commit the offence. The mental element
must relate to all elements of the offence, i.e., he must intend to have unlawful sexual
intercourse with a girl under the age of thirteen years. Thus, knowledge is very
important here.
(b) Recklessness
4. Defences
A proviso to section 138 of the Penal Code provides for a statutory defence to a
charge of defilement. The proviso provides:
Provided that is shall be a sufficient defense to any charge under this section if
it shall be made to appear to the court, jury or assessors before whom the charge
shall be brought that the person so charged had reasonable cause to believe and did
in fact believe that the girl was of or above the age of thirteen. The section places a
burden on the accused person to satisfy the conditions in the proviso, viz., that he had
reasonable cause to believe that the girl was of or above the age of thirteen and that he
actually believed that the girl was of or above the age of thirteen. As was stated by the
High Court in Republic v Malanda2, that:
The emphasized words in the proviso [i.e., “if it shall be made to appear to the
court‖] were considered by Blagden, J. in a Northern Rhodesian case, D (A
juvenile) v R, where he observed:…
In my view, the words ‗if it shall be made to appear to the court that…‘
occurring in the proviso…are somehow stronger…and they point clearly to
the fact that for the proviso to be held applicable the conditions pertinent to
247
1
6 ALR Mal 251 at p. 252
2
12 MLR 213
it must be ‗made to appear to the Court.‘ There is therefore a burden on the
Appellant to make it appear to the Court, not only that he had reasonable
cause to believe that the girl was of or above the age of [13] years, but that he
did in fact so believe. This view is in accordance with quite ancient authority.
In the case under consideration, the accused person appears to have satisfied this
condition…1
Both of these conditions must be satisfied by the accused person. If he knew that the
girl was under the age of thirteen but there existed things that would make a person
reasonably believe that she was above thirteen years of age (for instance her physical
appearance), he will be convicted of the offence.
Other defences available to the accused person include duress, immaturity and
mistake.
E. ABDUCTION OF GIRLS BELOW THE AGE OF SIXTEEN
1. Introduction
The offence of abduction of an unmarried girl under the age of sixteen years
consists of unlawful and intentional removal of the girl from the control of her parents
or guardian without the parent‘s or guardian‘s consent. The enabling section 136 of the
Penal Code provides as follows:
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, shall be guilty of a misdemeanor.
It should be mentioned that both the girl and the guardian are the victims of the
offence. The goal of the criminalization here is two-fold: to protect young girls from
sexual exploitation and to protect the parent‘s or guardian‘s right to have custody or
protection of the girl. Even tough the section does not specify that the purpose of the
taking of the girl should be sexual, but it has long been acknowledged that protection
248
1
12 MLR 213 at pp. 215 to 216
of young and immature girls underlies the offence. As was noted by Kamwambe J in
Francis Mangani v Republic267, that:
Section 136 as an offence is there to protect the girl child under 16 years old.
Even policy would require that such a child continue attending school rather
than rush into marriage.
But apart from protecting the girl, the offence also seeks to protect the parent‘s or
guardian‘s right to factual exercise of control over the girl. As a matter of fact, the real
victim of the offence of abduction is the parent and not the girl even though the
interests of the girl play a part. So even where the girl consents, the mere fact that the
consent of the parent was not sought would mean there has been an infringement of
the section. As Kumwambe J stated in the case mentioned above that:
This is why the offence of abduction under section 136 has the parents or
guardians as the victims and not the abducted girl. This is so because in any case
the girl is a willing partner to join the man or accused. I would not be wrong to
say that she is also a party to the offence as an aider and abettor, hence the girl is
not the complainant but the guardian.

The prohibited act consists in unlawful taking of a girl under the age of sixteen
out of the custody or protection of her lawful guardian. Taking requires removal of the
girl from the control of her parents or guardian. Whether the girl is removed by force
or she voluntarily decide to accompany the accused person is immaterial. In practice,
the girl is mostly a willing party since, if she is removed by force,that will be
kidnapping. The accused person need not to accompany the minor when she leaves
home: it suffices if she leaves her home herself after a prior arrangement with the
accused person. Even where the accused person meets the girl after she has left home
on her own, he or she will still be guilty of the offence. A person will be said to have
abducted a girl even where the girl leaves home on her own and joins the accused
person and, knowing that the girl has left home without her parent‘s or guardian‘s
consent, continues to keep her.
267 Criminal Appeal No 3 of 2007 (Unreported.)
249
There is a need for proof of some permanence of the removal. Taking a girl from
her house temporarily will not suffice. What time is required before one can be said to
have abducted the girl is a question of fact to be decided on the facts of each case.
However, a substantial period of time is required.
There is a need that the girl must be unmarried.

By requiring that the taking must be ―unlawful‖ means that it must not be
sanctioned by the law. For instance welfare officer who takes a girl under the age of
sixteen after being authorized by the law are not acting in breach of the section.
Guardians whose consent must first be sought include parents or other person having
the lawful care or charge of the girl. And lastly, the taking must be without the will of
such parent or person who has the lawful custody of the girl.
It matters not whether the purpose for taking her is for sexual or other purposes.
The section requires that the accused person must take the girl out of the custody
or protection of her parent or guardian. The custody or protection of the parent or
guardian over the girl is not limited to the time when the girl is in her parent‘s or
guardian‘s home or premises. A girl remains under her parent‘s or guardian‘s custody
or protection even if she is out of the home, for instance, is visiting a friend or is at
school. Whilst the term custody is limited that of protection is much wider.
What about cases where the parent or guardian has completely lost the custody or
protection of the minor, as where the minor has left the parental custody and is all on
her own and the parent or guardian neither know or is unconcerned about the girl‘s
whereabouts? In such cases the minor cannot be abducted since there is no custody or
protection from which the accused person can be said to have been taken from.
3. Mens rea
It must be proved that the accused person intended to take an unmarried girl.
Further, the accused person must know that the girl is under the age of sixteen and that
the person who has custody of the girl did not consent.
F. ABDUCTION OF A WOMAN
1. General
250
The offence of abduction of girls under the age of sixteen should be
distinguished from that of abduction provided under section 135 of the Penal Code.
The section reads:

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, shall be guilty of a felony and shall be
liable to imprisonment for seven years.
There are major differences between the offence of abduction under section 135 of the
Code and that of abduction of a girl under the age of sixteen. Firstly, the victim of the
offence under section 135 of the Code is the woman abducted whilst the victim of later
offence is the parent or guardian of the girl. In other words, the interests being
protected by the two sections differ: whilst the first protects the liberty of women, the
later protects the right of parents or guardian to have physical control of their children
or dependents. Secondly, the offence under section 135 applies to ―a woman of any
age‖ whilst the offence under section 136 applies to ―unmarried girl under the age of
sixteen‖. Thirdly, under section 135 the purpose for the abduction is specified as either
marriage or sex whilst section 136 does not specify the purpose for the abduction.
Fourthly, and lastly, under section 135 the woman must be taken or detained ―against
her will‖ whilst under section 136 there is no need to prove lack of consent on the part
of the girl.
G. LIVING OF THE EARNINGS OF PROSTITUTION
1. Introduction
The Human Immuno-Deficiency Virus (HIV) and the Acquired Immune
Deficiency Syndrome (AIDS) has resulted into social, economic and physical toll on
our society. HIV/Aids has stirred debate about the practice of prostitution in Malawi.
Prostitution is a practice whereby a woman offers herself for sexual gratification to
men for payment. The relevant provisions in the Penal Code were enacted long before
the HIV/Aids pandemic hit our country.
And prostitution is not a crime in Malawi even though, largely on moral grounds,
the state has sought ways to discourage this practice. Sections 145, 146 and 147 of the
Penal Code are the relevant provisions. Section 145 (1) (a) of the Penal Code makes it
251
a criminal offence for a male person to live on the earnings of prostitution. The section
(1) Every male person who –

(a) knowingly lives wholly or in part on the earnings of prostitution; or
…
shall be guilty of a misdemeanor…
Similarly, section 146 of the Penal Code provides:
Every woman who knowingly or in part on the earnings of prostitution or who is
proved to have for the purposes of gain exercised control, direction or influence
over the movement of a prostitute in such a manner as to show that she is aiding,
abetting, or compelling her prostitution with any person or generally shall be
guilty of a misdemeanor.

The prohibited conduct for the offences under section 145 (1) (a) and 146 of the
Penal Code consist of ―living on the earnings of prostitution.‖ The phrase was
explained by the court in Republic v Kadzakumanja1, as follows:
In order for an offence under the section to be committed, it is necessary that the
prisoner should gain from the earnings of one who is a prostitute. It is a moot
point as to whether it is an offence for a prostitute to live on her own earnings
from prostitution. The corresponding English legislation…is very different from
s. 146 of the Penal Code. In Kuruira v Republic the High Court pf Kenya,
construing a section whose wording was similar to ours. 146, held that it was
not an offence; but with respect I have considerable doubt as to the reasoning
which led to that construction. In any event, that point is not before me because
the starting point, and indeed the kernel of the offence, is that the person from
whom the money or other benefit is received is a prostitute. 2
The essence of the offences of living on the Sections 145 criminalizes
252
It is clear that the required mental element for the offences under sections 145
and 146 of the Penal Code takes the form of intention. This is evident from the
wording of the two sections: section 145 provides: ―every male person who
knowingly
1
9 MLR 343 (H.C.)
2
9 MLR 343 at p. 344
lives on the earnings of prostitution…‖; whilst section reads: ―every woman who
knowingly lives...on the earnings of prostitution…‖ [Emphasis supplied.] The term
―knowingly‖ imports the requirement that the accused person must have actual
knowledge that he or she is living gaining from the prostitution of another. As a
corollary,
H. BROTHEL
Under section 147 of the Penal Code, ―any person who keeps a house, room,
set of rooms or place of any kind whatsoever for purposes of prostitution shall be
guilty of a misdemeanor.‖ The section does not define what a brothel is. According to
the …dictionary, a brothel is defined as a house, building or place used for purposes of
prostitution or for persons to visit for the purposes of having unlawful sexual
intercourse or for sexual gratification.
The prohibited act is the keeping of a place for the purposes of prostitution.
Mens rea in the form of intention is required. This is apparent from the term
―keep‖ used by the section. One cannot be said to ―keep‖ a house for the purposes of
prostitution unless it is proved that the person had knowledge that the premises over
which he exercise control is being used for the purposes of prostitution. Any person
who manages premises used for the purposes of prostitution will be guilty of the
offence even though the person does not own the premises. The term keep is wider and
would include the following people: (a) any person who manages or assists in the
management of any brothel; (b) any person who knowingly receives the whole or any
share of any moneys taken in a brothel; (c) any person who, though a tenant, lets it to
be used as a brothel.
I. UNNATURAL OFFENCES
253
1. Introduction
Section 153 of the Penal Code criminalizes a number of acts whereby sexual
gratification is obtained in a manner other than heterosexual and penile/vaginal
intercourse. The section provides as follows:
Any person who –

(a) has carnal knowledge of any person against the order of nature; or
(b) has carnal knowledge of an animal; or
(c) permits a male person to have carnal knowledge of him or her against the
order of nature,
shall be guilty of a felony and shall be liable to imprisonment for fourteen years.
The forms of conduct targeted by section 153 can be grouped under three generic
terms: bestiality, sodomy and residual forms of unnatural sexual offences,
2. Sodomy
The term sodomy has a restricted meaning, namely, intentional relation between
two adult males per anum. Paragraphs (a) and (c) provides for the offence of sodomy.
The paragraphs presuppose two parties: an active and passive one. The active person
will be charged under paragraph (a) and the passive will be charged under paragraph
(c). The act consists in the anal penetration of the passive party by the male organ of
the active party. It is immaterial whether there is an emission of semen.
3. Bestiality
Section 153 (b) of the Penal Code criminalizes intentional sexual practice
between human being and an animal. Such conduct is called bestiality. In Republic v
Nthala1 it was held that the term animal as used in the section includes birds. In the
case, Nthala was convicted under the section having being caught having sex with a
chicken. The crime can be committed by both males and females.
When the act involves a male person and considering how courts have defined
sexual intercourse generally, it must be proved that the person penetrated the anus or
vagina of an animal using his penis. Conduct falling short of this may amount to
attempted bestiality. It is immaterial whether there has been emission of semen. The
animal may be either male or female.
254
When the offence involves a female, there must be proof that the animal‘s sexual
organ penetrated her vagina.
4. Residual forms of unnatural sexual offences
1
11 MLR 338
But the offences under paragraphs (a) and (c) go beyond sodomy: there still
remain other forms of conduct which would be punishable under the paragraphs. It is
uncertain which conduct or acts would be included but some of them would be the
following: acts of sexual gratification between two females, penile penetration of the
anus of a woman and oral sex are the most commonly practiced and can be said to fall
within the generic term ―unnatural sexual offences.‖ But as peoples sexual
experimentation widens, it is possible to come across acts where sexual gratification is
sought and which could be described as unnatural sexual offence.
It is submitted that there is a need for clarification of the matter and remove the
uncertainty surrounding the offence.
Self-masturbation cannot be considered as an unnatural offence and from this is

in safe to infer that for an unnatural offence to be committed there must be two parties.
255
CHAPTER TWELVE
OFFENCES AGAINST THE PERSON
J. MURDER
1. Introduction
It has been observed that ―the culpable causing of another person‘s death may
fairly be regarded as the most serious offence in the criminal calendar.‖ 268 These
sentiments are quite true considering the grief and agony that accompany death
generally even when everyone expected it. They are even truer considering the finality
and irrevocability of death itself. Leaving aside the religious inclinations of many
people particularly on the issue of death, we all live and die once. Death is therefore
―irremediable.‖ So, whilst victims of the other crimes stand a chance of either
recovering from their emotional or physical injuries attendant to most crimes, or,
though they may not fully recover from their injuries, but they may still live to enjoy
life and gain things that may compensate for their injuries, victims of murder have no
such a chance thrust upon them. Once you die then that‘s the end and those who knew
and love you will only find solace in their religious beliefs about the after death.
It is for this reason that a person who deliberately and without any legitimate
justification whatsoever causes the death of another does his victim and the society in
general a great wrong. Murder is arguably the most serious harm that can be inflicted
on another person. And it if for this reason that Malawian criminal law once required
that a person who unlawfully and ―maliciously‖ causes death of another should face a
268 Ashworth, A. p. 254
256
mandatory death sentence.269 It is therefore important that we should not lose sight of
the practical implications of death when discussing the offence of murder. It is actually
incomprehensible that there can be a human society, whether characterized as modern
or traditional that does not punish willful causing of death or another.
The simplest definition of murder is that it is the unlawful and intentional

causing of death of another human being. Section 209 provides as follows:
Any person who of malice aforethought causes the death of another person by an
unlawful act or omission shall be guilty of murder.
2. The prohibited conduct for the offence of murder (a)

Who can commit the offence?
The offence of murder can be committed by ―any person‖ as long as he has

acted with the necessary mental element and his conduct falls within the prohibited
conduct in the offence of murder.
(b) Victim of murder

The actus reus for the offence of murder is defined as the causing of death of
―another person‖ which can be literally translated to mean a human being. In the
majority of cases, the human status of the victim of an alleged murder is not in dispute.
But this does not mean that it cannot arise in certain cases. First, there is the question
of when life starts: is it at the time of conception, or after the foetus has developed to a
certain extent or just after delivery? In other words, at what time from the moment of
conception to the time of birth does a fetus become a person capable of being a victim
not only to the offence of murder but any other offence?
Malawian law on the point is regulated by section 216 of the Penal Code which
A child becomes a person capable of being killed when it has completely

proceeded in a living state from the body of its mother, whether it has breathed
or not, and whether it has an independent circulation or not, or whether the navel
string is severed or not.
269 Before
257
The law therefore has taken a position that a child is a person capable of being killed if
two conditions are satisfied: (a) the whole body of the child must completely emerge
from its mother‘s womb, and (b) the child must be alive. According to the law, it is
irrelevant whether the child has breathed or not or whether it has an independent
circulation or not. Section 216 codifies common law principles on the subject. At
common law a child acquires full personality and capable of being killed if it has
completely emerged from the womb270. It also is not necessary that the umbilical cord
should be severed.
The other issue that has attracted its own controversy has been the position of the
unborn child vis-à-vis the mother. The issue has never been considered by a Malawian
case and neither is it provided for by statute. On the other hand, at common law it was
once the position that an unborn child is an integral part of the mother just like an arm
or any other organ and hence incapable of being an identifiable victim of a crime. But
this position was later reversed by the House of Lords the landmark case of
Attorney-General’s Reference (No 3 of 1994)271. The ruling position is that the mother
and the unborn child are ―two distinct organisms living symbiotically, not a single
organism with two aspects.‖272 Even with the lack of decided cases on the point in
Malawi, from the reading of section 216 it appears that if a person causes an injury to
the foetus intending to kill it, or intending to cause any harm to it, and the foetus dies
inside the body of the mother, the offence of murder will not be said to have been
committed. Under section 216, the foetus is incapable of being killed. What would be
a legal solution to a case where a person has caused harm to a foetus intending to kill it
or to do any harm to it, and a child is born alive and dies of the injuries inflicted upon
it whilst in the womb: will it be murder? From the reading of section 216 of the Code,
at the time when the injury is being inflicted, the child is incapable of being killed
within the statutory definition of the offence of murder. However, the injury inflicted
is a continuing thing and the child is born alive and dies from the injuries, will it be
murder? Courts of law in England have resolved the perplexing question by holding
that if a child is born alive and dies wholly or in part because of ante-natal injuries to
the mother or the child, the person who inflicted them will be said to have caused the
death of the child. In short, the actus reus for homicide will be committed. However,
270 See Poulton (1832) 5 C & P 329
271 [1997] 3 All ER 936
272 Attorney General‟s Reference (No. 3 of 1994) [1997] 3 All ER 936
258
the person will not be guilty of murder essentially by reason of lack of mens rea for
murder. He will however be guilty of manslaughter.273 In the Attorney General
Reference (No 3 of 1994) one judge went further to hold that the position stated above
applies even to cases where the ante-natal injuries result into a premature birth which
has had a fatal effect on the child274.
Under section 231 of the Penal Code it is an offence to prevent a child from
being born alive. The section provides as follows:
Any person who, when a woman is about to be delivered of a child, prevents the
child from being born alive by an act or omission of such a nature that, if the
child had been born alive and had then died, he would be deemed to have
unlawfully killed the child, shall be guilty of a felony and shall be liable to
imprisonment for life.
The section in effect creates a separate substantive offence of preventing a child from
being born alive. Surprisingly there are no decided cases on the section that would
have enlightened us on how the full nature of the offence.
The second question that touches on the human status of a victim of a murder
pertains to the time when a person can be said to have died and hence incapable of
being killed. Medical science says that death is a continuing process and not
spontaneous and different parts of the body die at different times. Malawian statutory
law is silent on the point as to when a person can be said to have died. At common
law, it was once the position that a person is to have died if the heart stopping beating
and breathing ends. This brought the concept of ―heart death.‖ But this position was
unsatisfactory because there are certain conditions that can bring about the same
conditions i.e., barbiturate overdose and hypothermia, from both of which recovery is
possible. Advances in medical technology seriously challenged the ―heart death‖
concept. It is now possible to artificially maintain the heart beat and breathing through
a respirator. This resulted into a change from the ―heart death‖ concept to a ―brain
stem death.‖ ―Brain stem death‖ occurs if there is irremediable structural brain
damage. This happens if none of the vital centers of the brain is functioning. In line
with this, the Royal College of Physicians defines ―death‖ as: ―the irreversible loss
273 Attorney General‟s Reference (No 3 of 1994)

274 Attorney General‟s Reference (No 3 of 1994) per Lord Mustill
259
of the capacity for consciousness combined with irreversible loss of capacity to
breathe.‖
So a person who is on a ―vegetative state‖ but has not suffered from a ―brain stem
death‖ is not dead. The ―brain stem death‖ definition has been indirectly commented
upon as the legal definition of death in England.1
If this definition is indeed accepted as a legal definition of death, a doctor who

switches off a ventilator which was being used to ventilate a patient who has suffered
irreversible brain damage does not commit the offence of murder because legally the
person is already dead even though he was being ventilated by a respirator.
(c) Causing death

A key element of the offence of murder is the unlawful causing of death of
another person. For this purpose, it is necessary to establish that the accused person‘s
act or omission caused death. And just as is the case with all crimes, issues of
causation are critical to the offence of murder. In most cases, the issue of whether the
defendant‘s act caused death or not is not in serious issue. This is the case in
straightforward cases. However, problematic are cases where the defendant‘s act or
omission cannot be said to be the only cause of death. We therefore should turn to
examine the principles that are used to process the actual case.
Section 215 of the Penal Code defines ―causing death‖ 2. The section represents
a codification of the common law principles on causation as they apply to the offences
1 2
Airedale NHS Trust vs. Bland [1993] 1 All ER 21 per Lords Keith, Goff and Brown-Wilkinson
Section 215 provides:
A person is deemed to have caused the death of another person although his act is not
the immediate or not the sole cause of death in any of the following cases–
(a)If he inflicts bodily injury to another person in consequence of which that other
person undergoes surgical or medical treatment which causes death. In this case it is
immaterial whether the treatment was proper or mistaken, if it was employed in good
faith and with common knowledge and skill; but the person inflicting the injury is not
260
deemed to have caused the death if the treatment which was its immediate cause was not
employed in good faith or was so employed without common knowledge or skill.
(b) If he inflicts a bodily injury on another which would not have caused death if
the injured person had submitted to proper surgical or medical treatment or had
observed proper precautions as to his mode of living;
of murder and manslaughter. Since we have already discussed principles of causation

in criminal law, we need not discuss causation in any detail here.
In the first place, the section provides for the principle that acts or omission of
medical personnel or those trying to help a victim of the defendant‘s injury will not
break the chain of causation if such treatment is ―employed in good faith and with
common knowledge and skill.‖ This will be so even if the treatment was improper or
mistaken. The chain of causation will be broken only if the treatment is employed in
bad faith or was employed without common knowledge and skill required of a
particular profession.
The second principle provided by section 215 is that a chain of causation will not
be said to have been broken merely because the victim of the bodily injuries did not
submit to proper medical or surgical treatment or because he or she failed ―to observe
proper precautions as to his mode of living.‖ A good example of this is when the
victim refuses or neglects medical help which would have saved his life. So, if a
person inflicts bodily injury on another and that other person dies but the injury should
not have caused death if the injured person had submitted to proper surgical or medical
treatment or had observed proper precautions as to his mode of living, he will be said
to have caused death. Republic v Banda (S.J.)1 is a case in point. The accused person
defiled a young girl injuring her severely but to an extent that if her parents had taken
her to hospital as soon as they had discovered what had happened, she should have
recovered. Unfortunately, the parent took the girl to the hospital when her condition
was such that it was inevitable that she would die. The court found the
(c)If by actual or threatened violence he causes such other person to perform an act
which causes the death of such person, such an act being a means of avoiding such
violence which in the circumstances would appear natural to the person whose death is
so caused;
261
(d) If by an act or omission he hastened the death of a person suffering under any
disease or injury which apart from such act or omission would have caused death;
(e)If his act or omission would not have caused death unless it had been accompanied by
an act or omission of the person killed or of another person killed or of another person.
1
(1968 – 70) 5 ALR Mal 96
accused guilty of the offence of murder after the court had found that he actually
caused the death of the child.
Thirdly, if a person threatens another with violence which causes the other
person to perform an act which causes death, that act being a means of avoiding the
threatened violence, he will be said to have caused death.
The fourth principle cover cases where the accused person‘s act hastens the death
of a person suffering from any disease or injury that, despite the defendant‘s act,
would have caused death anyway.
Lastly, the section provides that voluntary third party conduct will not break the
chain of causation if the act of the defendant contributes to the death. It does not
matter that the defendant‘s act if the sole cause of death. Hence a person will be said to
have caused death even if his act or omission would not have caused death unless it
was accompanied by an act or omission of the person killed or of other person. This
position represents a departure of the position at common law where all was required
is to establish that the defendant‘s act or omission is a substantial cause of death. This
requirement excludes conduct that is minute that it can be ignored: the so-called ―de
minimis‖ principle.
If the intervening fact is a natural event which occurs after the accused person‘s
conduct then the chain of causation will be broken. Such conduct is called ―visitation
of Providence.‖ What about the conduct or condition of the victim? This covers
situations where the victim has a certain special condition that makes him or her
especially vulnerable. This is sometimes known as the ―thin skull‖ principle or the
principle that the defendant must take their victims the way they found them.
Resultantly, a person will be made responsible for death even if the matter has been
exacerbated by the special condition of the victim.
262
Much of what has been said on actions also applies to omissions. It is possible to
say that but for an omission death would not have occurred. For an omission to be
considered there must be a legal duty to act. Hence, a parent who fails to save his
drowning child can be said to have caused the death.
Theirs is clarity on the test that courts of law in Malawi must use: the ―but for‖
test or the substantial cause test. In Republic v Alves275 the approach used the
substantial cause approach. The court in effect held that all that the prosecution must
prove is that the act of the defendant ―was a substantial cause of the death of the
deceased.‖276
(d) Unlawful act or omission

An act or omission that causes the death must be unlawful. The term ―unlawful‖
as used in other provisions of the Penal Code has been interpreted as meaning that the
act must be contrary to the law, whether the general law or, indeed, customary law or
without lawful justifications.277 There is no authority as to the meaning of the word
within the context of either murder or manslaughter. It is submitted that, within the
context of murder or manslaughter, the term should be interpreted as to mean the
unlawful act that causes death must also be a crime.
: in other words, there must not be any grounds of justification for the doing of
the act or the making of the omission. Consent to the killing by the deceased does not
exclude unlawfulness. Justification that renders a killing lawful include public/private
defense, advancement of justice and misadventure.
Public/Private Defence: in this category of lawful homicide, the accused person

kills by using reasonable force in self-defense, in defense of another, in prevention of
crime or in effecting arrest. This will be discussed later when we will be discussing the
defenses below.
Advancement of justice: if a hangman duly carries out the lawful sentence of a

competent court, the killing is lawful.
275 (1966 – 68) 4 ALR Mal 100

276 Ibid at p. 103
277 See Republic v Metani, 7 MLR 341 (H.C.); Republic v Damaseki, (1961 – 63) ALR Mal 69 (H.C.);
Republic v Komihiwa, 7 MLR 325 (H.C.)
263
Misadventure: death is caused by misadventure where it results, by accident not
involving gross negligence, from the doing of a lawful act. This is the case with
surgery or other medical procedures or from lawful sporting games.
(e) The required mental element: malice aforethought

The mental element of the offence of murder is defined as ―malice
aforethought.‖ Section 212 of the Penal Code defines malice aforethought as follows:
Malice aforethought shall be deemed to be established by evidence proving

any one or more of the following circumstances–
(a) an intention to cause death of or to do grievous bodily harm to any

person, whether such person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably
cause the death of or grievous bodily harm to some person, whether such
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;
(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.
(i) Intention to cause death
An intention to cause death is the most straightforward form of mens rea for the
offence of murder. All the principles on intention discussed above apply here. The
intent to be proved in a case of murder is a subjective intent possessed by the accused
himself at the time of doing the act or making the omission which allegedly caused the
death. Though seemingly obvious, in reality proving the exact mental status of the
accused person at the very time of committing the act causing death is not easy. The
question is: how can one prove the mental state of the accused person?
264
Intention may be proved by direct evidence or implied from the facts of the case.
A person who beheads another person will be said to have intended to cause death.
Rex v Macheso278 is the case in point. The facts of the case can be summarized as
follows: following a minor quarrel between the accused and the deceased, the accused
picked a pounding stick with which he beat the deceased to death. From these facts,
the court implied an intention to kill on the part of the accused person. It was observed
that an intention may be implied where death results from a voluntary act of the
accused which is both intentional and unjustified.
(ii) Intention to cause grievous bodily harm
An intention to cause grievous bodily harm is listed as one of the required mens
rea for the offence of murder by section 202 (a) of the Penal Code. Malice
aforethought can also be established by proving an intention to do grievous harm to
any person. This covers person who plead that all what they wanted was to injure and
not to kill the victim.
(iii) Knowledge that act causing death will cause death
Knowledge that the act or omission causing death will probably cause the death
of or the grievous harm to some person suffices as adequate malice aforethought for
the offence of murder. It matters less that the 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. More controversial is the question: whose knowledge should be
applied; the actual knowledge of the accused person when doing the act or making the
omission or that of a reasonable man? It has been heard that the wording of the section
does require the actual knowledge of the accused person himself and not a fictitious
reasonable man. This imports a subjective test. If the objective test is to be applied, it
will extend the section beyond the legislative intent. The case of Nankondwa v
Republic279 is an authority on the point. The appellant piled some bales of hay at the
door of a glass hatched house, propped them up with poles and set fire to them. One of
the people in the house died. He claimed that he never wanted to kill anyone but rather
278 (1923 – 1960) 1 ALR Mal 102

279 (1966 – 68) 4 ALR Mal 388 (S.C.A.)
265
to deprive the owner of the house, his estranged wife, a house. It was proposed that the
test to be applied should be a subjective test.
(iv) An intent to commit a felony

Malice aforethought can also be established by proof of the fact that the accused
person acted with the intention of committing a felony and in pursuance of which
death results. This is sometimes called a felony-murder rule: that anyone who kills in
the course of a felony should be charged and convicted of murder. In Billioti v.
Republic1 the victim died whilst she was being raped by the appellant. He had tied her
hands together to prevent effective resistance and also tied a cloth around her neck to
prevent her shout for help. In the same way in Kholiyo v. Republic2 the victim was a
night watchman. The appellants pushed a large rag into his mouth, tied his limbs and
laid him under a tree. He died of asphyxiation caused by the rug in him mouth. It was
proved that it was not the appellant‘s intention to cause death.
(v) An intent to facilitate flight
Lastly, malice aforethought can be established by proving intention to facilitate the

flight or escape from custody of any person who has committed or attempted to
commit a felony.
K. MANSLAUGHTER
1. Introduction
Malawian criminal law distinguishes between two forms of homicide: murder

and manslaughter. A uniting factor between the two forms of crimes is that death is
caused as a result of the defendant‘s unlawful act or omission. We have looked at the
law on murder and we now turn to examine the law on manslaughter.
Section 209 of the Penal Code defines the offence of manslaughter as follows:
Any person who by an unlawful act or omission causes the death of another
person shall be guilty of the felony termed ―manslaughter.‖ An unlawful
omission is an omission amounting to culpable negligence to discharge a duty
266
tending to the preservation of life or health, whether such omission is or is not
accompanied by an intention to cause death or bodily harm.
1
(1968 – 70) 5 ALR Mal 281 (S.C.A)
2
4 ALR Mal 388 (S.C.A)
What distinguishes manslaughter and murder therefore is the fact that in manslaughter
there is no need that one should act with malice aforethought. For this reason, a person
convicted of manslaughter has a lower degree of culpability. What this means is that
the offence of murder is committed whenever a person causes death, by an unlawful
act or omission, but without such degree of blameworthiness as is required for the
offence of murder.
The conduct being targeted by the offence of manslaughter consists of the

causing of death by an unlawful act or omission.
(i) Unlawful act
Section 208 of the Penal Code requires that the act or omission causing death
must be ―unlawful.‖ As discussed above, the general approach of courts of law has
been that an act or omission is ―unlawful‖ if it is contrary to the law, whether civil,
criminal or customary law.280 This interpretation causes little problems in the case of
murder because the requirement that the accused person must act with ―malice
aforethought‖ restrict the application of the act. On the other hand, the same
interpretation if applied to the offence of manslaughter expands the ambit of the
offence of manslaughter by imposing criminal liability on the basis of mere civil-law
wrongdoings. For instance, D prepares a home-made fruit juice and forgets to cover it
overnight resulting into the infection of the juice. The next day he offers the drink to a
group of friends who have paid him a visit. All the friends who took the drink fall sick
but recover. By failing to discharge his duty of care which he owed his friends as far
as the proper keeping of the juice is concerned, D has acted contrary to the law of
torts. On the same facts, however, D has not committed any criminal offence. The
280 See Republic v Metani, 7 MLR 341 (H.C.); Republic v Damaseki, (1961 – 63) ALR Mal 69 (H.C.);
Republic v Komihiwa, 7 MLR 325 (H.C.)
267
friends have an option of institution civil proceedings against D for damages.
However, under the present current approach, if one of them dies, D can be prosecuted
for murder and face the risk of spending the rest of his life in jail.
In Republic v Chidothi,281 the court held that, for a verdict of manslaughter to

follow death caused by an unlawful act, the unlawful act must be such as all sober and
reasonable people would recognize that it will subject the victim to at least the risk of
harm resulting from that act. In other words, the mere fact that death has been caused
by an unlawful act does not suffice in itself to sustain a liability for manslaughter. The
court did not explain the nature the harm should take: whether physical, psychological,
environmental or economic harm. The facts of the case are as follows: following a
drinking spree which the accused had with his wife, the two picked up a quarrel during
which he pushed her hard causing her to bump her head against the door and he
slapped her twice. When a third party intervened, both the accused person and the wife
assured him that all was fine and the wife, probably under the influence of alcohol,
added saying that: ―I want Mr. Chidothi to beat me as much as he likes.‖ The next
morning the wife was discovered unconscious and died later at the hospital.
Postmortem results revealed that that the cause of death was a blow to the head whose
effect was exacerbated by Malaria from which she was already suffering from. On the
principle stated above, the accused person was not acquitted of a charge of
manslaughter.
It is submitted that this is contrary to the basic principles of criminal law which
require that the defendant must be blameworthy.
(ii) Act or omission
Section 208 of the Penal Code requires that death must be caused by either an act
or omission. Not much can be said of the act. As far as the omission is concerned,
there is a bonus requirement that the omission must amount to ―culpable negligence
to discharge a duty tending to the preservation of life or health, whether such omission
is or is not accompanied by an intention to cause death or bodily harm.‖282
281 (1966 – 68) 4 ALR Mal 437 (H.C.)
268
By demanding that the omission must amount to ―culpable negligence‖ requires
that, mere negligence as required in the law of torts does not suffice. To cause death of
another negligently will not, of itself, incur liability in manslaughter. The failure of
care must be rather egregious that is required in civil law. To borrow the words of
Lord Hewart C.J. in Bateman283, it must be the case that:
In the opinion of the jury, the negligent of the accused went beyond a mere
matter of compensation between subjects and showed such disregard for the life
and safety of others, as to amount of amount to a crime against the state and
conduct deserving punishment.284
That is not all, the negligence must relate to a duty to the preservation of life or health.
Different laws impose duties on persons that relate to the preservation of life or health,
for instance, sections 218 to 212 of the Penal Code.285
(iii) Causing death
Causing death has been discussed above. The principles are the same as in the
case of murder and require no repetition here.
For the mental element, one has to draw a distinction between what has been
termed ―voluntary manslaughter‖ and ―involuntary manslaughter.‖
(i) Voluntary manslaughter
One is said to have committed voluntary manslaughter where the accused person
has caused death of another person and with the mens rea for the offence of murder
but has a defense available to him and which reduces the offence to either
manslaughter or is wholly excused. This covers cases of self-defense and provocation.
283 (1925) 19 Cr App R 8
284 Ibid, at p. 11
285 The sections impose duties on certain persons to provide necessaries of life and hold
those persons responsible for any consequences which result to the life or health of the other
persons by reason of any omission to perform those duties.
269
These will be examined when we are examining manslaughter. Self-defense will be
examined when we are looking at defense latter on but now we have to examine
provocation.
(ii) Involuntary manslaughter
The first thing that should be stated here is that involuntary manslaughter has
nothing to do with the involuntariness of the accused person‘s conduct. It applies to
cases where the accused person causes death with insufficient fault to justify labeling
it as murder, but with such fault so as to require him to face some criminal sanctions.
The word ―involuntary‖ is used merely to distinguish it from cases where there is the
sufficient mental element for murder. Involuntary manslaughter stems from section
209 of the Penal Code itself. As was put by Hogan, ―involuntary manslaughter‖ is a
generic term comprising those forms of homicide which occupy ―the shifting sands
between the uncertain…definition of murder and the unsettled boundaries of excusable
or accidental death.‖ For instance, think of the case where a person pushes someone
backward whilst disagreeing on a point and the person falls on a sharp object. Should
the person be charged of the offence of murder or should he be left to go scot-free?
This may be a case where the accused person never acted with an intention to kill the
person or there is no any proof of the circumstances proving any of the elements of the
malice aforethought as discussed earlier.
There are two types of involuntary manslaughter: (a) the first is where death
results from an unlawful act that is likely to cause bodily harm (also known as
‗constructive manslaughter‘). It is referred to constructive manslaughter because the

law constructs liability out of a lesser crime which the defendant was committing and
which happened to cause death. (b) Where death results from an act of gross
negligence.
(iii) Constructive manslaughter
It must be mentioned at the very beginning that to be guilty of constructive

manslaughter, the accused person‘s act must be unlawful, in the sense that it
constitutes a criminal offence in its own right. Typical acts include assault etc. For
270
example in Republic v Chidothi286 a case where a husband pushed his wife backwards
causing her to hit her head against the door or in 287
Republic v Sikero1…The unlawful
act must be such that any reasonable person would regard as being likely to cause
harm288. The harm likely to result from the unlawful act must be physical harm.289
A person who uses excessive force in circumstances where the use of force
would otherwise be lawful may be guilty of manslaughter. 290 Further, the accused
person must have acted with the intention of committing that unlawful act or omission.
What this means is that the required mental element is an intention to commit an
unlawful act or omission which is lesser than an intention to commit a felony which
will establish malice aforethought for the offence of murder. Or the accused person
must have done a thing which a reasonable person would have foreseen to be likely to
cause harm to an individual. Consent is not a defense to a charge of causing grievous
bodily harm since a person cannot validly consent to its infliction on himself.
(iv) Manslaughter by culpable negligence
This is the second variety of involuntary manslaughter. Manslaughter by

negligence is committed when there is a breach of a duty of care ―tending to the
preservation of life or health‖ on the part of the accused person and which duty touches
on the preservation of life or health. It is provided for under the last paragraph of
section 209 of the Penal Code. What is required to be proved is that, (a) there existed a
duty of care tending to the preservation of life or health on the part of the accused
person towards the deceased; (b) that the accused was in breach of that duty of care;
(c) that the breach of duty of care caused the death of the victim; (d) that the breach of
duty amounted to ―culpable (or gross) negligence.291
286 (1066 – 68) ALR Mal 439

287 ALR Mal 463
288 The Chidothi case
289 R v Chidothi 1966-68 ALR Mal 439; Maya v. Rep 1 ALR Mal 101; Rep v. Sikelo 4 ALR Mal 463
290 Kaipa v. R ALR Mal 142; Jackson v. R ALR Mal 1961-63 175
291 Jackson v. Republic (1961-63) 175; Tipezenji v. Republic 1 ALR Mal 912 – the case of a woman
whose child fell into a pit latrine just after birth and who failed to seek help to rescue it; Republic.
271
(v) Killing on provocation
Our criminal law recognizes provocation as an extenuating circumstance for the

offence of murder. An extenuating circumstances are circumstances which at the time
of doing the prohibiting act (in this case causing the death) so influenced his state of
mind as to render the conduct morally less blameworthy.
L. GRIEVOUS HARM
1. Definition
Any person who unlawfully does grievous bodily harm to another shall be guilty
of a felony and shall be liable to imprisonment for fourteen years.
―Grievous harm‖ is defined by section 4 of the Penal Code as meaning:
any harm which amounts to a maim or dangerous harm, or 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, membrane or sense.
(i) grievous bodily harm
The offence of grievous harm is a ―result crime.‖ The section prohibits the
causing of a particular result: ―grievous bodily harm.‖ The harm element of the crime
is present when the accused person inflicts a harm which results into the victim either
being maimed, or his or her health seriously or permanently injured, or a (permanent
or temporary) disfigurement. The offence of grievous harm is ranked high on the list
of non-fatal violations of the bodily integrity of another person. In the words of
v. Sinambale (HC) 4 ALR Mal 191 – this is a case where the accused person killed two ladies
through negligent driving.
272
Unyolo J in Republic v Jonathan,292 a ―grievous bodily harm‖ means ―really serious
bodily harm.‖ The phrase has also been explained as meaning ―serious injury.‖ 293294 It
is important that the harm occasioned must qualify as serious or one that permanently
injures the health or permanently disfigures or causes a permanent injury to any
external or internal organ, membrane or sense of the victim. At the centre of the
offence of grievous harm is a serious injury to the person affected. It is something
more than merely inflicting a wound or injury to a person: something really serious (or
grievous) must be done.
Where a number of injuries have been inflicted, the totality of all injuries and
their effect on the victim should be considered.
And since the offence of grievous harm is a result crime, the manner in which the
harm is caused is irrelevant. Even though section 238 of the Code uses the word
―does‖ thereby suggesting a positive act, there is nothing that can prevent a person
being held liable for the offence resulting from an omission.
The injury may be to both an internal and external organ of the body and include
the membrane and the senses or the general health of the victim. Controversial is the
question whether it includes psychological harm. In other words, is there a difference
between physical harm and psychiatric harm? In England, the House of Lords
confirmed that psychiatric injury, attested by expert evidence, could amount to bodily
harm and further than if the psychiatric injury is sufficiently serious it might amount to
grievous bodily harm. Whether or not courts of law in Malawi will follow the lead is a
matter that will be seen.
(ii) unlawful
Section 238 of the Penal Code reads: ―Any person who unlawfully does
grievous bodily harm…‖ (Emphasis supplied). In Republic v Samuel2, the phrase was
explained as requiring that the accused person must have done ―an unlawful act.‖ The
state must not only prove that the grievous bodily harm resulted from the defendant‘s
292 [1990] 13 MLR 389

293 Per Jere, J., in Republic v Lawrence, 9 MLR 315 (H.C.) at p 316
294 MLR 285 (H.C.)
273
act, but also that ―he acted unlawfully.‖295 Failure to prove that the act causing
grievous bodily harm was unlawful should result into an acquittal. In Republic v
296
Samuel, the accused person went to a house where the complainant was, looking for
beer. Upon being told that there was no beer, he threw a bottle he was carrying on the
ground causing it to break as a result of which a splinter from the broken bottle hit the
complainant in the eye causing him to lose sight of the eye. The court found that the
act of throwing the bottle to the ground was not in itself unlawful, thus, a definitional
element of the crime was not proved.
In Republic v Samuel1 it was in effect held that the required mens rea for the
offence of grievous bodily harm may take two forms: firstly, an intention to cause
grievous harm, or, secondly, recklessness as to whether grievous harm will result from
one‘s conduct or not.
The meaning of intention here is the same as discussed earlier. In most cases of
grievous harm, the harm is caused by a direct attack inherently likely to cause physical
harm and where the court need not discuss the mental element of the accused
person.297
The court explained a reckless man as one who ―foresees the probability of the
consequences of his act.‖ On the facts of Republic v Samuel briefly stated above, it was
held that the accused person ―could not have foreseen that the complainant would
lose his eye.‖298 In effect, the court held that the foresight required on the part of the
accused is the foresight that grievous bodily harm will result from his conduct. In
295 Ibid, at p 286

296 MLR 285 (H.C.)
297 For instance in Republic v Jonathan, 13 MLR 389 where the accused person struck the
complainant in the leg with an iron bar resulting into the amputation of the effected leg. There was
no justification whatsoever for the assault. During the confirmation of the sentence, the court did
not even discuss the issue of intention and held the accused person guilty of the offence of causing
grievous bodily harm.
298 Ibid, at p. 288
274
contradistinction, in England all that is required to be proved is that the accused person
foresaw that he may inflict some, even minor, bodily harm on the victim.299
M. UNLAWFUL WOUNDING
1. Introduction
Wounding is the second most serious non-fatal offence. It is provided in section

241 of the Penal Code that reads as follows:
Any person who –
(a) unlawfully wounds another; or
(b) unlawfully, and with intent to injure or annoy any person, causes any
poison or noxious thing to be administered to, or taken by, any person, shall be
guilty of a felony and shall be liable to imprisonment for seven years.
The term ―wound‖ is defined in section 4 of the Penal Code as meaning:
Any incision or puncture which divides or pierces any exterior 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.
If sections 241 and 4 of the Penal Code are considered together the offence of
wounding can be rightly said as involving any an incision or punctures the exterior
membrane of the body.
(i) The wound
The actus reus of the offence of unlawful wounding is an act resulting in the
unlawful wounding of another. To constitute a wound, the outer skin must actually be
broken by either making an incision or puncture on it. As a minimum, there must be
evidence of an act resulting into wounding of another: ―there must be proof of an
299 See Savage [1992] 1 AC 699;
275
incision or puncture.‖300 In Attorney-General v Lojasi, the Federal Supreme Court
observed that the definition of ―wound‖ as contained in the Penal Code is restrictive:
it restrict the meaning of the term ―wound‖ to an ―incision or puncture…‖ which,
according to the court, displaces the ―normal sense‖ of that term. According to the
court, in effect, the legislature had ―provided only two sorts or wounds, namely an
incision and a puncture.‖1 The court went on to define an ―incision‖ as presupposing a
wound caused by ―a knife or other sharp instrument and to indicate something in the
nature of a cut.‖ In Attorney-General v Lojasi, the respondent struck another person
with a club which took out a piece of flesh from the victim‘s head. He was convicted
of unlawful wounding but on review the High Court held that the conviction was not
supported by the facts of the case since the word ―wound‖ had been restrictively
defined in the Penal Code as meaning ―an incision or puncture.‖ The Attorney–
General appealed to the Federal Supreme Court on the ground that the interpretation of
the word ―wound‖ by the High Court was contrary to, inter alia, common usage. On
its part, the Federal Supreme Court confirmed both the interpretation and conclusion
of the High Court.
The wound need not be serious, otherwise it will amount to grievous bodily
harm; a minor cut on the outer layers of the skin will do. In Republic v Lawrence2, the
accused cut the wrist of the complainant with a panga knife to the extent of exposing
the bone. He was convicted of grievous bodily harm. In considering the propriety of
the conviction during confirmation proceedings, the High Court observed that:
In the present circumstances it was not mere wounding, for the bone could be
seen and if the bone was exposed it means that this was a serious injury.
(Emphasis supplied.)
It seems, therefore, the boundary between wounding and grievous harm is that the
latter involves the infliction a ―serious injury.‖ When even a wound is serious, the
offence of grievous harm is committed. The offence of grievous bodily harm can be
committed even where a wound is not inflicted on the complainant.
(ii) Unlawful wounding
300 See Republic v Fuleza, 7 MLR 335 (H.C.); Attorney–General v Lojasi, (1961 – 63) 2 ALR Mal
210
276
1
4 ALR Mal 210 at p. 213
2
The unlawfulness of the wounding is a definitional element of the offence. A

person who wounds another whilst acting in self-defence is said to do so lawfully.
The mens rea required for the offence of unlawful wounding is the same as that
of grievous bodily harm: the prosecution must prove that the accused person acted
with either the intention to unlawfully wound or recklessness as to whether his conduct
unlawfully wounds another or not.
N. ASSAULT OCCASIONING ACTUAL BODILY HARM
1. Assaults generally
An assault consists in unlawfully and intentionally (a) applying force, directly or

indirectly, to the person of another, or (b) threatening another person with immediate
personal violence in circumstances which lead the threatened person to believe that the
other intends and has the power to carry out the threat. The Penal Code provides for
different types of assaults, viz., indecent assault on females,301 indecent assault of boys
under fourteen,302 common assault303, assault occasioning actual bodily harm, 304 assault
301 Under section 137 (1) of the Penal Code, which reads:
Any person who unlawfully and indecently assaults any woman or girl shall be guilty
of a felony and shall be liable to imprisonment for fourteen years.
302 Under section 155 of the Penal Code
Any person who unlawfully and indecently assaults a boy under the age of fourteen
years shall be guilty of a felony and shall be liable to imprisonment for fourteen years.
303 Under section 253 of the Penal Code
Any person who unlawfully assaults another shall be guilty of a misdemeanour...and
shall be liable to imprisonment for one year.
304 Under section 254 of the Penal Code, which reads:
277
on persons protecting wreck305 and, lastly, assault with intention to steal 1. The offence
of indecent assault on a boy under the age of fourteen is the most serious of all the
offence involving assault with a maximum sentence of fourteen years imprisonment,
whilst common assault is the least serious.
(i) An assault
An assault means actual or threatened use of unlawful force to another person.

An assault can be committed without touching a person. For instance, an assault can
be committed where a person aims a blow at another but misses. Drawing a weapon or
throwing a weapon at another with intent to injure will constitute an assault if the
person aimed is within reach.2 In Rex v Kelsen3 it was held that pointing a loaded gun
at another who is within range is an assault. In short, doing any act indicating an
intention to use violence against another person will constitute an assault even when
there is no physical contact. Mere words, however threatening, can never amount to an
assault.4
(ii) An unlawful assault
Any person who assaults and strikes…any magistrate, officer, or other person lawfully
authorised in or on account of the execution of his duty in or concerning the preservation of
any vessel in distress, or of any vessel or goods or effects wrecked, stranded, or cast on shore,,
or lying under water, shall be guilty of a misdemeanour, and shall be liable to imprisonment
for seven years.
1
Under section 303 of the Penal Code, which reads:
Any person who commits an assault occasioning actual bodily harm is guilty of a
misdemeanour, and shall be liable to imprisonment for five years.
305 Under section 255 of the Penal Code, which reads:
278
Any person who assaults any person with intent to steal shall be guilty of a felony and shall
be liable to imprisonment for three years.
2
See Chimwalira v Republic, (1964 – 66) 3 ALR Mal. 275 (H.C.); Rex v Kwilimule, (1923 – 60) 1
ALR Mal. 225
3
(1923 – 60) 1 ALR Mal 129 (H.C.); See also Regina v Jones (No. 2), (1923 – 60) 1 ALR Mal. 760
(H.C.)
4
Ibid
It is necessary that the act constituting an assault must be unlawful. Republic v
Fred1 and Chimwalira v Republic2 are authority of the principle that resisting an
unlawful arrest is not an assault.
(iii) Occasioning…
The assault must cause bodily harm to the complainant otherwise it will be
common assault. This is a question of causation and the central question is: did the
assault cause actual bodily harm? An assault will be said to cause bodily harm even if
the defendant did not touch the complainant. This can happen where the defendant
threatens actual violence on another causing that other person to something that causes
him bodily harm. For instance, if D throws a bottle at C which misses him but in
attempting to avoid the bottle hitting him C breaks his leg, an assault occasioning
actual bodily harm will be said to have been committed. The English case of Roberts3
demonstrates this principle better: the defendant tried to pull the complaint‘s coat off
in a moving car. She jumped out of the car and sustained injury. The defendant was
held liable for the offence of assault occasioning actual bodily harm. The case stands
for the principle that where it is alleged that the actual bodily harm has been caused by
a technical assault it must be established that it was the apprehension of imminent
attack or force – as opposed to general fear and upset – that caused the complainant‘s
action and which resulted into him or her sustaining an injury.
(iv) Actual bodily harm…
The last element of the actus reus of the offence of assault occasioning bodily
harm is the causing of ―actual bodily harm.‖ The word ―harm‖ is defined in section 4
279
of the Penal Code as meaning ―any bodily hurt, disease or disorder whether
permanent or temporary.‖ The word ―actual‖ indicates that the injury should not be
trivial, though not permanent. The word ―bodily‖ denote that the harm must be to the
body. It may be asked whether the harm must be limited to the body or should include
1
8 MLR 48
2
3 ALR Mal. 275
3
(1972) 56 Cr.App.R. 95
psychiatric harm. In England, it was held that ―bodily harm‖ includes psychiatric
harm. In Chan-Fook306, Hobhouse L.J. stated:
The first question…is whether the inclusion of the word ―bodily‖ in the phrase
―actual bodily harm‖ limits harm to harm to the skin, flesh and bones of the
victim…The body of the victim includes all parts of the body, including his
organs, his nervous system and his brain. Bodily injury therefore may include
injury to any of those parts of his body responsible for his mental and other
faculties….It does not include mere emotions such as fear or distress or panic
nor does it include, as such, states of mind that are not themselves evidence of
some identifiable clinical condition.307
Courts of law in Malawi will have to decide on the question. It can only be hoped that
they will borrow a leaf from the approach of courts of law in England.
The mens rea for the offence of assault occasioning actual bodily harm is an
intention to commit an assault or recklessness as to whether one‘s action or conduct
will cause force or apprehension of force. The defendant need not foresee that actual
bodily harm itself: all that is required is that he must intend to cause and assault or be
reckless as to whether an assault will be caused.
O. COMMON ASSAULT
306 [1994] 2 All ER 552
307 See alsoR. v Ireland; R. v Burstow, [1998] A.C. 147 (H.L.)
280
A common assault is committed when all the above requirements are satisfied
but without the additional requirement that actual bodily harm is caused to the
complainant.
CHAPTER THIRTEEN
OFFENCES RELATING TO PROPERTY AND MALICIOUS INJURY TO

PROPERTY
A. THEFT
1. Introduction
Theft is one of the most commonly experienced crimes in Malawi. Strangely, it
is also one of the most difficult crimes to define in brief terms. Section 271 (1) of the
Penal Code defines theft as follows:
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…
The general punishment for theft is imprisonment for five years.

This definition is a replica of the definition of theft contained in section 1 of the
English Larceny Act of 1916 which was long abandoned in England but has lingered
on in our Penal Code. The current definition of theft in England is section 1 (1) of the
Theft Act of 1968 which defines theft as follows:
A person is guilty of theft if he dishonestly appropriates property belonging to

another with the intention of permanently depriving of it…
The difference in the definitions contained in section 271 (1) of the Penal Code and the
one in section 1 (1) of the Theft Act of 1968 is unmistakable. But most importantly,
281
the definitions reveal a difference in approach of the theoretical understanding of the
offence of theft. What motivated the change of approach in the definition of theft in
England was, among other things, a realization that the definition was defective in that
certain forms of conduct that was ordinarily regarded as stealing did not come within
the definition of theft.

The prohibited conduct of the offence of theft consists of (a) taking or converting
(b) a thing capable of being stolen (c) belonging to another (d) without a claim of
right. Each of these elements must be examined in turn:
(a) Things capable of being stolen

Not everything can be stolen. Malawian criminal law defines things that can be
stolen through section 270 of the Penal Code, as follows:
Every inanimate thing whatever which is the property of any person, and
which is movable is capable of being stolen.
Every inanimate thing which is the property of any person and which is
capable of being made movable is capable of being stolen as soon as it comes
movable, although it is made movable in order to steal it.
Every tame animal, whether tame by nature or wild by nature and tamed,
which is the property of any person is capable of being stolen.
Animals wild by nature, of a kind which is not ordinarily found in the

condition of natural liberty in Malawi, which are the property of any person, and
which are usually kept in a state of confinement, are capable of being stolen,
whether they are actually in confinement or have escaped from confinement.
Animals wild by nature, of a kin which is ordinarily found in a condition of

natural liberty in Malawi, which are the property of any person are capable of
being stolen while they are confinement and while they are being actually
pursued after escaping from confinement, but at not other time.
Any animal wild by nature is deemed to be in a state of confinement so long

as it is in a den, cage, sty, tank, or other small enclosure, or is otherwise so
282
placed that it cannot escape and that its owner can take possession of it at
pleasure.
Wild animals in the enjoyment of their natural liberty are not capable of
being stolen but their dead bodies are capable of being stolen.
Everything produced by or forming part of the body of an animal capable of

being stolen is capable of being stolen.
From the definition in section 270 of the Code, most things can be stolen. There are
few, if any, surprises in the list of things that can be stolen. The most important
exclusion from the list is real property and intangible property for instance a chose in
action.1 This follows the approach at common law where land and intangible property
were excluded from the ambit of theft.2 However, things forming part of land are
capable of being stolen the moment they are made movable and they are owned by
someone. This includes trees owned by a person would be stolen the moment they are
cut down. On the other hand, wild plants growing on somebody‘s land are not capable
of being stolen.
The definition of things capable of being stolen contained in section 270 of the
Code has generated no controversy since its enactment largely because of its clarity.
Almost all the provisions of the section are self-explanatory and the vast majority of
cases of theft are decided without the need to decide whether the subject matter of the
charge was or was not a thing capable of being stolen.
Despite this obvious clarity of the law on the point, in Republic v Gondwe,3 the
High Court was called upon to consider, inter alia, whether a marriage was a thing
capable of being stolen. Section 310 of the Penal Code criminalizes obtaining by
―fraudulent trick or devise…anything capable of being stolen.‖4 The accused person
1
See Mfune v Republic, 11 MLR 74 (H.C.) and Rendall-Day v Republic, (1966 – 68) 4 ALR Mal 155
(H.C.). In the later case, the court observed thus:
An intangible right is not, by definition, capable of being stolen, either in English law or our
own. Only corporeal or tangible things can be stolen. An incorporeal right, it is hardly
necessary to say, can be the subject of ownership and be a property right. An interesting
example of protection or proprietary rights in the civil law action in tort for conversion given
to a person on whose back account a cheque is drawn without authority¸ the common law
283
thus treating him as “owner” of the cheque rather than the owner of the tangible bank
balance.
2
In England, this position was changed through section 4 (1) of the Theft Act of 1968. the section
defines property as including:
…any money and all other property, real or personal, including things in action and other
intangible property.
The current position is England now is that any type of property can be stolen as long as the
exceptions contained in section 4 (2)–(4) of the Theft Act, 1968 do not apply.
3
9 MLR 421 (H.C.)
4
The section reads in full as follows:
Any person who by means of any fraudulent trick or device obtains from any other person
anything capable of being stolen, or induces any other person to deliver anything capable of
falsely claimed to be a soldier in the process winning the heart of a woman whom he
married. He was charged with what was said to be ―cheating to marriage‖ to marriage
under section 321 of the Penal Code. It is clear that the charge was misconceived. But
the High Court had to remind the lower court that ―a marriage is not something that is
capable of being stolen.‖ But the importance of the case is not in the reminder by the
High Court on what things are capable of being stolen rather the case underscores the
fact that sometimes both the prosecution and the court can miss out on this seemingly
obvious point on things that can be stolen leading to bizarre outcomes.
(b) Taking or conversion

The actus reus for the offence of theft may involve either taking or conversion.
(i) Taking
At the centre of the first prohibited conduct of the offence of theft is a taking
which, under section 271 (5) of the Penal Code, consists of moving a thing or causing
a thing to move. To that end, a person will be said to have taken a thing for the
purposes of the offence of theft them moment he or she moves a thing or causes a
thing capable of being stolen to move. At common law, in order to constitute theft, it
was required that there must be not only taking but also a carrying away. Section 271
(5) of the Penal Code, therefore, represents a departure from the common law
284
approach: under the section all that is required is that the accused must move or make
something to move even if he does not successfully make off with it.1 In Republic v
Mkandawire (K.)2, the accused person was employed by the complainant as a shop
assistant. He was found by the complainant standing near a till with two banknotes in
his hand. He was apprehended by the complainant before he could move away from
the till. He took the notes from the till, which the accused had no authority to open. In
considering the propriety of the conviction of theft Mbalame, J. explained the law on
the point in by saying:
being stolen or to pay or deliver to any person any money or goods or any greater sum of
money or greater quantity of goods than he would have paid or delivered but for such trick
or device, shall be guilty of a misdemeanour…
1
See Chimwalira v Republic, (1966 – 68) 3 ALR Mal 275 (H.C.)
2
11 MLR 194 (H.C.)
…For the accused to be convicted of theft under s. 278, it must be proved
beyond reasonable doubt that there was sufficient ―taking.‖
There must be, to constitute taking, an asportation, i.e. carrying away of the
goods of the prosecutor without his consent; but fort this purpose, provided there is
some severance, the least removal of the goods from the place they were is sufficient,
although they are not entirely carried off. The removal, however short the distance
may be, from one position to another upon the owner‘s premises is a sufficient
asportation, and so is a removal or partial removal from one part of the owner‘s person
to another. There must, however, be a complete detachment of the goods if attached. 1
On the facts, the justice said:
In the instant case, the accused is said to have taken two K10 notes from the
till where they lay. He folded them and held them in his hands, this removing
them completely from the till; he was immediately apprehended before he could
move an inch. In my judgment, there was sufficient asportation to support the
charge of theft, and I confirm the conviction.2
(ii) Conversion
285
Conversion simply means dealing with goods in a manner inconsistent with the
right of the true owner as long as it is coupled with an intention on the part of the
defendant to deny the owner‘s rights or to assert a right which is inconsistent with that
of the owner.3 The rights of the owner must be in relation to the property in question,
for instance, the right to dispose of the thing in question, the right to control, the right
to manage, the right to be named as the owner of the thing or any other property right
that a person has over an object of property.
A person can be said to have converted a thing even if the initial ―taking‖ was
lawful. Consider the following, fairly straightforward, case: suppose that D borrows a
car from C. He (D) sells the car to another person. By passing on the car to another
person, D‘s action is inconsistent with the ownership rights of C who is the true owner
of the car and who holds the right to dispose the vehicle either through sale or any
1
11 MLR 194 at p.195
2
11 MLR 194 at p 196
3
See Republic v Bondo, 7 MLR 194 (H.C.);
other manner and has the right to title of the vehicle. So even though the initial taking
of the vehicle by D was lawful, by selling the vehicle he is committing the actus reus
of the offence of theft, that is, conversion. An employee lending employer‘s money
without knowledge or permission of the employer was held to amount to conversion
because the act was inconsistent with the rights of the employer.308
Section 271 (3) of the Penal Code provides that when a thing stolen is converted,
it is immaterial that the thing was in the possession of the defendant at the time of the
conversion.
(c) Belonging to another

As a general rule, it is impossible to steal a thing belonging to either to oneself or
no one. It must be established that the ―thing‖ is the property of a person before that
―thing‖ can be stolen.309 It is possible that the accused may have an interest in the
property as well. Section 270 of the Penal Code expresses this principle by demanding
the thing capable of being stolen must be ―the property of any person.‖ The meaning
of ―the property of any person‖ is not provided in the Penal Code.
308 See Chabvinda v Republic, 10 MLR 169 (S.C.A.)
309 Lamarque v Republic, 9 MLR 176 (S.C.A.)
286
As stated above, as a general rule the thing stolen must be the property of another
person. An exception to this general principle is provided in section 276 of the Penal
Code that reads:
When any person takes or converts anything capable of being stolen, under such
circumstances as would otherwise amount to theft, it is immaterial that he himself has
a special property or interest therein, or that he himself is the owner of the thing stolen
or converted subject to some special property or interest of some other person therein,
or that he is the lessee of the thing, or that he himself is one of two or more joint
owners of the thing, or that he is the director or officer of a corporation or company or
society who are the owners of it. The effect of the section can be explained by the
following example: D leaves his car at a garage for repairing. At night, he goes to
retrieve the car with the aim of making a claim to the garage for the vehicle. Even
though what he has taken is his property, D can be convicted of theft. Similarly, if a
person has a lien over goods in the possession of another, if he takes the goods in
circumstances that amount to theft, he will be held guilty of theft.
Under section 276 of the Code, an owner may commit theft if there is more than
one owner. If D and V are co-owners of a piece of property and D sells the chattel in
circumstances that amount to theft, he will be held guilty of theft. Similarly, a partner
may be convicted of theft of property belonging to the partnership.
Section 271 (1) of the Penal Code defines two types of owners, general owner
and special owner. The phrase ―special owner‖ is defined in section 271 (2) of the
Penal Code as including:
any person who has any charge or lien upon the thing in question, or any right
arising from or dependent upon holding possession of the thing in question. There is
no definition of the expression ―general owner.‖ In Lamarque v Republic1 it was held
that the expression ―general owner‖ is to be given a meaning similar to that given to
―owner‖ contained in section 1 of the English Larceny Act, 1916 where the
expression ―owner‖ includes any part-owner or person having possession or control
of anything capable of being stolen.
(d) Without a claim of right

The taking must be ―without a claim of right.‖ A taking is said to be without a
claim of right when it is without the consent or permission of the owner. This element
287
is mostly straightforward in the majority of cases of theft. Controversial, however, are
cases where the permission or consent to take the thing has been obtained by
deception. The wording of section 271 or any other section makes no reference to
cases of deception.

The mental element of the offence of theft is described by section 271 of the
Penal Code as consisting of fraud. A taking or conversion need to be ―fraudulent‖
before a person can be convicted of the offence of theft. Section 271 (2) provides as
follows:
1
9 MLR 176 (S.C.A)
A person who takes or converts anything capable of being stolen is deemed
to do so fraudulently if he does so with any of the following intents, that is to
say:
(a) An intent permanently to deprive a general or special owner of the

thing of it.
(b) An intent to use the thing as a pledge or security;

(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 such a manner it cannot be returned in the

condition in which it was at the time of taking or conversion;
(e) In the case of money, an intent to use it at the will of the person who
takes or converts it, although he may intend afterwards to repay the
amount to the owner.
Intention forms the fundamental element of the required mens rea for theft. A person
must have a specific purposive intention of doing any of the five things listed in
section 271 (2) of the Penal Code. The offence of theft therefore cannot be committed
negligently. And the intention must relate to all the requirements for the crime
contained in section 271 (1) and 271 (2) of the Penal Code. What this means is that a
person must have an intention to take or convert (the prohibited conduct under section
288
271 (1)) and must have an intention in respect of the property and must have an
intention in respect of the absence of the claim of right in respect of the thing.
What this means is that the accused person must know that the object of his act is
a thing capable of being stolen as described by section 270 of the Penal Code, and that
he has no claim of right in respect of that object, and he must intend to achieve any
one or more of the things listed in section 271 (2) of the Penal Code. A mistake as
regards the nature of the property or if the person legitimately believes that he has a
claim of right over the thing will exonerate the person even if he acted with a specific
intention of permanently taking the thing. The requirement that the intention must also
embody an awareness that the accused person has no claim of right over the thing
means that he must know that the owner of the thing has not (or would not have)
granted him the right to take or use the thing.
In order to exclude intention the mistake need not be reasonable since the test for
determining intention or a particular knowledge on the part of the accused person is
always subjective. But mere knowledge that the property is capable of being stolen
and that the accused person has no claim of right does not constitute sufficient grounds
to conclude that the accused person had the intention to steal the thing.
Consider the case of a person who hides somebody‘s property with the aim of
inconveniencing the victim: in such a case, the accused person knows that the property
he is dealing with is capable of being stolen and that he has no claim of right over the
thing, but he cannot be said to have stolen the thing. Section 271 (1) of the
Penal Code requires that the accused person must have acted ―fraudulently.‖ Section
271 (2) of the Penal Code defines for us what fraud means in terms of the offence of
theft. What this mean is that the accused person must also have the specific intention
as mentioned in section 271 (2) of the Code. We now turn to discuss what section 271
(2) requires.
(a) An intent to permanently deprive

Section 271 (2) (a) requires that before the court can find an accused person
guilty of theft it must be established that he acted with the ―intent permanently to
deprive the general or special owner of the thing of it.‖ As said earlier on, at the centre
of the offence of theft is the need to protect property rights. In the same way, much of
the required mental element for the offence of theft draws a line between conduct that
289
disrupts those property rights and conduct that does not. And this is best represented
under this definition of fraud. The wording of section 271 (2) (a) show that there are a
number of requirements that must be satisfied, namely, (a) an intention to deprive; (b)
the deprivation must be permanent; (c) the victim must be a special or general owner;
(d) the object must be a thing capable of being stolen.
To deprive means to…A person can be said to have deprived another of a thing
when he or she has…But this does not mean that every time a person has deprived
another of a thing then theft will be said to have been committed. A person who drives
another‘s cattle over a cliff such that they fall over a precipice to their death can be
said to have deprived the other of the cow but it wouldn‘t be proper to charge him of
theft of the cow. This is a case of malicious damage.
The deprivation is further qualified by the requirement that the accused person
must intend the deprive the special or general owner of the thing ―permanently.‖
Where the accused person intends to deprive the owner of the thing only temporarily,
he will not be guilty of the offence of theft. There is an important practical result from
this qualification: to use somebody‘s property with the intention to return it afterwards
does not necessarily amount to an intention to steal unless any of the other required
mental elements under section 271 (2) are satisfied. A line is therefore drawn here
between an intention to use and an intention to deprive.
(b) An intention to use the thing as a pledge or security

Our criminal law extends the requirement mental element of the offence of theft
as including an intention to ―use the thing as a pledge or security.‖ The reason for the
inclusion is to include any mental element under which both control over the property
is taken by the accused person and there is a denial or repudiation of the rights of the
owner. Using somebody‘s property as a pledge or security presents one of the greatest
challenges to the property rights of the true owner. Further, pledging property as
security implies an assertion of ownership of the property and a repudiation of the
property rights of the true owner.
(c) Conditional return
290
Thirdly section 271 (2) (c) of the Code includes cases where the accused person
intended to part with the property on condition as to its return which the person taking
or concerting it may be unable to perform.
(d) An intent as regards its condition
This involves cases where the accused person takes somebody‘s property but has
no intention to deprive the owner permanently but rather to return it after using it.
However, this is no simple temporary use of things common in Malawian society: the
accused person wants to return the thing in a condition (mostly degraded) different
from the one it was at the time of taking or conversion and the thing cannot be used in
such a manner as he would have before the conversion or taking.
(e) An intention to repay money not sufficient

It is undeniable that money is one of the commonest objects of the offence of
theft in Malawi. Section 271 (2) (e) provides that in case of ―money‖, if a person take
or converts money with the intent to use it at his or her will he or she will be guilty of
theft although he may intent afterwards to repay the amount to the owner. This
provision is straightforward and should not occasion much difficulty in the majority of
cases. It covers cases where a person takes or converts money in circumstances that
amounts to theft in the place but intends to replace the money afterwards. The simplest
case may involve an employee who takes petty cash from the office intending to return
the money the next day. Even if he successfully returns the money the next day, if he
is discovered he will not be held to say: but I intended to return the money the next
day and, indeed, I returned the whole amount taken.310
310 In Kajuma v Republic 8 MLR 235 Chatsika, Ag C.J. had the following to say as regards the
application of section 271 (2) (e) of the Penal Code:
In my view section 271 (2) (e) has no application to post-dated cheques or to
deferment of presentation for payment of cheques. This sub-section applies to a case where a
person takes away money in such circumstances which clearly amounts to theft though he
may intend to pay the money back at a later date. It applies, for example, to a shop assistant
who takes money from his masters till in the shop intending to use it, e.g., for gambling and
291
But the most complex issues about money do not start and end there. Modern
technological advances and business usage has made the use of money more complex
and poses greatest challenge to the general principles of the offence of theft. The
discussion above treats money as cash. But in modern business usage money
B. THEFT BY PUBLIC SERVANT

1. Introduction
Section 283 (1) of the Penal Code provides for the offence of theft by persons
employed in the public service. The section reads:
Where it is proved to the satisfaction of the court that any person employed in
the public service has by virtue of his employment received or has in his custody
or under his control any money or other property, and such person has been
unable to produce to his employer such money or other property or to make due
account thereof, such person shall, unless he satisfies the court to the contrary, be
presumed to have stolen such money or other property, and shall be convicted of
the felony of theft.
The enactment of section 283 of the Penal Code was a political response to a perceived
shortfall in the English common law particularly the presumption of innocence, which
forms an axiomatic principle of the common law for centuries. This problem was felt
more in respect of public servants who were accused of stealing government property.
It seems as if that in the early years of independence, the peculation of public funds
and property was rampart throughout the civil service and the penal regime, premised
on the principles of English common law involving presumption of innocence and
legal and evidential burdens of proof, proved inadequate to deal with the problem. 311 In
the words of Dr Banda, then Prime Minister, the conviction of offenders who had
appropriated government funds was problematic because:
…the individual is always presumed innocent until he is proven guilty and many
individuals see to it that even when then know deep down in their hearts that
hoping that if he wins he will return the money the next day.
Responses in Malawi”, Journal of African Law, Vol. 32, No. 1. (Spring, 1988), pp. 72-94
292
they are guilty, they cover their tracks so that you cannot prove it, and there is
always a good lawyer…to come up and defend him…312
To remedy this ―loophole‖ it was decided that in the case of public servants who are
accused of committing the offence of theft against public property, they should also
share the burden of proving that money or property which one had by virtue of one‘s
employment and which is missing or cannot be accounted for was not stolen. 313 And
section 283 (1) of the Penal Code is an embodiment of that change in the law.
It is trite section 283 (1) of the Penal Code does not create a new offence of theft:
all that the section does is to create a presumption that where a public officer has in his
custody or control money or property which he receives of comes into his possession
by virtue of his employment and fails to make a due account thereof, a rebuttable
presumption arises that he or she has stolen the property in question. It is therefore
traditional to charge a person of the offence of theft by servant ―contrary to section
278 as read with section 283 (1) of the Penal Code.‖ 314 In other words, once a civil
servant fails to produce to his employer the property which he had by virtue of his
employment, it is presumed that he ―fraudulently and without claim of right‖ took or
converted to his use the property.
But before the presumption can arise all the requirements of the section must be
satisfied.
2. A person employed in the public service

It is necessary to establish at the very onset that the accused person must be
employed in the public service. Section 4 of the Penal Code defines what person can
be said to be ―person employed in the public service‖ for the purposes of the Penal
Code and includes:
(a) any civil office including the Office of the President, the power of
appointing a person to which or of removing from which is vested in the
President or in a Minister or in any public Commission or Board;
312 See Hanrard, Proceedings of t h Malawi Parliament, Government Printer, Zomba, 3rd Session,
2nd Meeting, 5 7 October, 1965, 183-192.
Responses in Malawi”, Journal of African Law, Vol. 32, No. 1. (Spring, 1988), pp. 72-94
314 See Republic v Gona, [1992] 15 MLR 428 (H.C.);
293
(b) any office to which a person is appointed or nominated by Act or by
election;
(c) any civil office, the power of appointing to which or removing from which
is vested in any person or persons holding an office of any kind included in
either of the two last preceding paragraphs;;
(d) any office of arbitrator or umpire in any proceeding or matter submitted to

arbitration by order or with the sanction of any court, or in pursuance of any Act;
and the said term includes –
(i) a member of a commission of inquiry appointed under or in pursuance of

any Act;
(ii) any person employed to execute any process of a court, including a

Traditional Court;
(iii)all persons employed in the armed forces or police force of the Republic;
(iv)all persons in the employment of any government department of the Republic;
(v) a person acting as a Minister of religion of whatsoever domination, in so far as he

performs functions in respect of the notification of intending marriage or in respect of
the solemnization of marriage, or in respect of the making or keeping of any register
or certificate of marriage, birth, baptism, death or burial, but not in any other respect;
(vi)a person employed in the service of any Local Authority or of any board, Council,
society or other authority, whether incorporated or otherwise, established by or under
any Act, other than the Companies Act;
(vii) a person employed in any class of employment which may be specified as

public service by the Minister by notice published in the Gazette.
(viii) a member of the National Assembly; (ix) any Chief.
There has been very little controversy of who is a public servant for the purposes
of the offence under section 283 (1) of the Penal Code.
3. Receives or has in his custody by virtue of employment

It is an essential requirement of the offence under section 283 (1) of the Penal
Code that the civil servant must either receive the money or property ―by virtue of his
employment.‖ This requires that the initial receiving of the property or the acquisition
294
of custody of the property must be valid or legal. Where the person acquires custody
of the property or receives the property through fraud, any charge under the section
will fail. If the accused person breaks into his office and steals the property that was in
the office, he will be charged with the offence of theft under section 271 (1) of the
Penal Code.
The importance of the requirement that the accused person must receive the
property by virtue of his employment is demonstrated by the case of Republic v
Phiri315, whose facts can be stated briefly as follows: P was working as an accounts
assistant in the Ministry of Agriculture. One of his duties was to prepare payment
vouchers which would be sent to his head office where cheques would be made out
payable to him. He would cash them and distribute the money to their intended
beneficiaries. An audit exercise revealed that some payment vouchers were altered by
the accused person with the result that the amounts payable were increased. He would,
therefore, cash the cheques and keep the difference between the original amount and
the altered amount. He was convicted of the offence of theft by a person in the public
service. On confirmation, the court noted that the facts did not establish that the
accused person received the amount of money alleged to have been stolen by him
―by virtue of his employment‖ or lawfully as required by section 283 (1) of the Penal
Code. In the words of the court:
The law regarding theft by a person employed in the public service is very well
settled. In order for the charge to succeed it must be established, among other
things, that the money or property was in the custody or control of the accused
person by virtue of his employment, or, lawfully, so that it will be misconceived
and inappropriate if the money or property was illegally obtained in the first
instance…The prisoner received the sum of K2 110.50 by falsification of
documents and, therefore, it cannot be said that the money was lawfully in his
custody or under his control. The offence charged…was misconceived and
inappropriate.
In Republic v Banda316, the accused person was employed in the public service as
a stores clerk in the Central Government Stores. He stole a set of spokes by hiding
them in his clothes as he departed from his office. He was caught by security guards
who searched him. He pleaded guilty to the charge of theft by servant contrary to
315 [1992] 15 MLR 441 (H.C.)

316 [1990] 13 MLR 370 (H.C.)
295
section 283 (1) of the Penal Code. The matter came to the High Court for
confirmation. The court did not examine the propriety of the charge and conviction of
the accused person for the offence of theft by public servant under section 283 (1) of
the Penal Code. It is submitted that following the approach of the court in Republic v
Phiri317 discussed above and which approach we believe is correct, the facts disclose
the commission of the offence of simple theft and not theft by a person employed in
the public servant. The facts do not establish the presence of any of the factors
mentioned in section 283 (1) of the Penal Code. In other words, not every time a
public servant commits the offence of theft against the property of his employer he
commits the offence of theft by public servant under section 283 (1) of the Penal
Code. When the accused person took the spokes, the offence of theft was committed.
Similarly, in Kudambo and Chikwakwa v Republic1, the appellants had been

employed by the Ministry of Education and Culture from which they stole requisition
forms, fraudulently completed them, and with the connivance of employees of a filing
station, each obtained the cash value of the fuel purportedly requisitioned. They were
charged and convicted of the offence of theft by public servant. On appeal, the court
observed that it was wrong to convict the appellants of theft by a person employed in
the public service since, although the appellants had used the requisition forms for
which they had access by virtue of their employment to obtain the money, the
requisition forms were merely means for committing the fraud. They did not receive
the money by virtue of their employment.
The statement by Bolt J in Muwalo v Republic2, should be repeated here:

Be that as it may, I am of the opinion that broadly speaking s.283 (1) of the
Penal Code is aimed at the public servant who in the first instance has lawfully
had money or property in his control or custody and is unable to produce it (or
part of it) or to make due account for it – in other words, who has what is
normally referred to as a ―shortage.‖
Judging from the variety of cases which reach this court on appeal or review,
the idea seems to be widely prevalent that almost any kind of theft by public servant
comes within the ambit of section 283 of the Code. A little thought, however, will
reveal that this cannot be so. For example, if I were to steal he large fan which is at
present standing behind me in the court, although I might be guilty of simple theft or
possibly of theft by servant, I would not be guilty in terms of s.283 of the Penal Code
317 [1992] 15 MLR 441 (H.C.)
296
because the fan would not have been in my custody or control. The same would apply
if one morning I happened to be in the cashier‘s office and while is back was turned
stole five pounds out of the open safe; such money would not have been in my custody
or control.3 See also Kuchipanga v Republic4 and Banda v Republic1 where the need
that the accused must receive the property by virtue of his employment was
emphasized by the Supreme Court of Appeal.
1
10 MLR 350 (H.C.)
2
(1968 – 70) 5 ALR Mal 1
3
5 ALR Mal. 1 at p. 9 to 10
4
[1991] 14 MLR 167 (S.C.A)
318
4. The property received

As far as the nature of the property or money received, section 283 (1) of the
Penal Code describes it as ―any money or other property…‖ It has been held that in as
much as it is essential to prove that the money was received by the accused person
―by virtue of his employment‖, the property or money need not belong to the
government.319
5. Unable to make due account

When making account of the money or property, it is not necessary that the
accused should produce the property before the employer or court. All that is required
is that the accused person account must rebut the presumption that the money was
stolen by him. Even if the accused person explains that the money was stolen by some
other person apart from himself the requirement will be said to be satisfied. That is
exactly what the facts of the case of Chief Public Prosecutor v Chilapondwa320
suggests: the accused person was public servant working with ADMARC. He was
placed in control of money by his employer. He placed the money in a chest which
was affixed to his room. The key to the chest was kept by the accused person, and so
318 [1991] 14 MLR 27 (S.C.A.)
319 See Nyirenda v Republic, 9 MLR 34 (H.C.); Muwalo v Republic, (1968 – 70) 5 ALR Mal. 1
(H.C.);
Day v Reginam, (1923 – 60) ALR Mal. 625 (H.C.)
320 [1990] 13 MLR 91 (H.C.)
297
was the key to the room where the chest was located. The chest was found open with
the money missing. It was clear that the person who opened the chest forced it open
using a knife which was abandoned in the room. It was established before the court
that both the chest in which the money was kept and the room (actually the whole
building) was made up of unsafe materials and there was no security in the structure.
The room was used as an accounts office during the day and as a dormitory for
ADMARC employees during the night. The accused person‘s explanation was that
anybody (including his fellow workmates) could have committed the offence. The
court accepted that by giving an explanation as to how the money was lost, the
accused person had rebutted the presumption of theft.
The court further supported the approach that the accused person needs not to
satisfy the court that he did not steal the money beyond reasonable doubt: all what he
is required to do is to satisfy the court on the balance of probabilities that he did not
steal the money.1
The expression ―due account‖ in section 283 (1) of the Penal Code has been
explained by the Supreme Court of Appeal in Chabvinda v Republic2 requiring that the
conduct of the accused person must be ―bona fide.” In the Chabvinda case, the
accused person explained a cash shortage of government money which he was keeping
on the basis that he gave out loans to his friends who had undertaken to pay back the
money to the appellant and, ultimately, the government. Both the High Court and the
Supreme Court of Appeal held that ―appellant‘s conduct was not bona fide
and that he cannot be said to have made a due account for the money.‖3
6. The presumption arises

The presumption that the accused person stole the property arises at the time
when the public servant is ―unable to produce or make a due account of the money or
other property which has been in his custody or under his control.‖ 4 It is therefore
necessary that the accused person must be given the opportunity to make due account
of the property. In other words, the accused person must be confronted with the
shortage of the property and be allowed to explain the shortage not at the court but
right there at his office. In Chisenga v Republic, key prosecution witnesses had access
to the accused person‘s office whilst the accused person was in police custody and in
his absence. In the Chisenga case, it was held by the Supreme Court of Appeal that
failure to allow an accused person the opportunity for a satisfactory explanation would
298
mean that the prosecution has failed to prove an essential element of the offence
leading to the acquittal of the accused person.
1
The court quoted with approval the following statement by Skinner CJ in Hill v Republic, (1971 –
72) 6 ALR Mal 180 that:
Once there was evidence which satisfied the court beyond reasonable doubt of the factors
provided for in section 283 (1) then the court had to see whether the appellant had satisfied it
on the balance of probabilities that he did not steal…
See also Banda v Republic, 12 MLR 9 (S.C.A.)

2
10 MLR 169 (S.C.A.)
3
10 MLR 169 at p. 171
4
Per Mtambo JA in Chisenga v Republic, [1993] 16 (1) MLR 52 (S.C.A.) at p. 56
The presumption arises whenever the accused person fails to make a due account
of the property. It is not necessary that a specific request to account must be made
before the proceedings.321
7. Unless he satisfies the court to the contrary

It is not a requirement that the accused person must prove his innocence beyond
reasonable doubt: all that is required is that he must satisfy the court that his
321 Per Skinner J in Hill v Republic, (1971 – 72) 6 ALR Mal. 180 (S.C.A.) where he observed: It
has been argued…that as there was no evidence that the appellant was asked to account for
the water heater either by his employers or by the police the presumption did not arise. We
do not accept that there must be evidence of an accused being called upon to give an
explanation prior to the institution of the proceedings. Where the presumption arises, there
must be evidence that an accused person was unable to account. In the majority of cases the
evidence will be that an accused person having been given an opportunity to account by
being called upon to do so by his employer fails to do so, or that an accused being put in a
position where a man would be expected to give an account as when he is charged with the
offence and fails to do so, but it may arise from the evidence led by the State that the accused
would find it impossible to account or from the accused‟s own evidence before the court.
299
explanation ―could reasonably be true.‖ In the words of Weston J in Gondwe v
Republic,322 that:
The appellant gave an explanation, for what it was worth, and let me say at once
that, like the resident magistrate, I do not think it was worth much. Nevertheless,
it is trite learning that it is for the prosecution to establish its case beyond
reasonable doubt and not for an accused person to prove his innocence. This has
been said so often as to be a danger of losing its urgency. As in every case where
an accused person gives an explanation, in this case its application required that
court‘s approach to the appellant‘s story should not have been what was
evidently was: ‗Is the accused‘s story true or false?‘ resulting if the answer were
‗False‘ in a finding that the appellant must necessarily have had a fraudulent
intent. The proper question for the court to have asked itself was ‗Is the
accused‘s story true or might it reasonably be true?‘ – with the result that if the
323
answer were that the appellant might reasonably be telling the truth, the
prosecution would not in that case have discharged the burden of proof beyond
reasonable doubt imposed upon it by law.1
The accused person must satisfy the court that he did not steal the money. In
other words he must give a satisfactory explanation. 324 Any doubt created by the
explanation given by the accused person must be resolved in his favour.325
C. NEGLIGENCE BY PUBLIC OFFICER IN PRESERVING MONEY OR

OTHER PROPERTY
1. Introduction
The offence of negligence by public officer in preserving public property is
enacted by section 284 (1) of the Penal Code:
322 (1971 – 72) 6 ALR Mal 33

323 ALR Mal 33 at p. 36. The passage was quoted with approval in Republic v Msosa, [1993] 16 (2)
MLR 739 (H.C.) at pp. 738 – 739
324 For instance, in Mkusauka v Republic, [1993] 16 (2) MLR 626 (S.C.A.) the explanation which
the appellant gave to the court was rejected as unsatisfactory.
325 Republic v Rabson, 11 MLR 277 (H.C.)
300
Where any person employed in the public service has by virtue of such
employment received or had in his custody or under his control any money or
other property, and as a result of gross negligence or recklessness of that person
that money or other property, or any part thereof, is lost or stolen or cannot be
accounted for by that person, then that person shall be guilty of an offence.
The punishment for the offence is a ―fine not exceeding the amount or value of the
money or other property lost, stolen or unaccounted for, and to imprisonment for five
years.‖326 Further, the court may make an order for the seizure and sale of the property
of the convicted person sufficient to the amount equivalent to the amount negligently
or recklessly stolen.327

The actus reus of the offence contains a number of elements, viz.,
(i) the accused person must be a public officer;
(ii) receives property by virtue of his employment;

(iii) acting negligently or recklessly
(iv) the property is lost, stolen or cannot be accounted for
The first two elements of the actus reus of the offence are the same as those under the
offence of theft of public servant under section 283 (1) of the Penal Code. These have
already been discussed above and will not be discussed here. One merely has to go
back to the discussion of these requirements as they apply to the offence of theft by
public servant.
(i) A person employed in the public service

This requirement has already been discussed above.
(ii) Receives or has custody of goods by virtue of employment This requirement has
already been discussed above.
(iii) Acts negligently or recklessly
326 Section 284 (2) of the Penal Code
327 Section 284 (3) of the Penal Code
301
The accused person must have acted in a manner that qualifies as gross negligence or
recklessness.
However, mere negligence will not suffice. As was stated by Chatsika, J in

Republic v Ndovi,1 that:
…it is not every act of negligence by a public officer in preserving public money
or property that would justify a conviction under s.284 of the Penal Code. There
are different degrees of negligence In other words, the degree of negligence, and
to justify a conviction a every high degree is required to be proved before the
negligence as understood in criminal law can be said to have been established. In
other words, the degree of negligence must be so gross as to amount to
recklessness. Mere inadvertence in preserving public money or property, while it
might create a civil liability, would not suffice to be the basis for instituting
criminal proceedings.2
In other words, the conduct of the accused person must be such as to point to
recklessness not mere lack of foresight. In Republic v Ndovi, the accused person failed
1
7 MLR 235 (H.C.)
2
7 MLR 235 at p. 241
to account to some moneys which was in his custody by virtue of his employment as a
treasury cashier. He was charged with the offence of theft by public servant contrary to
section 283 of the Penal Code. When asked to explain the shortage, the only
explanation he could furnish was that he might have mistakenly overpaid someone.
The court was satisfied with the explanation and concluded that it rebutted the
presumption of theft by public servant under section 283 of the Penal Code but
proceeded to convict the accused person of negligence in preserving public property
under section 284 (1) of the Penal Code. During confirmation the court considered the
propriety of the conviction and quashed it. It was observed that the facts of the case
did not disclose any gross negligence or recklessness on the part of the accused person.
The court observed that to establish a conviction under the section, the state is required
to adduce evidence to establish gross negligence or recklessness. And evidence that
would have proved gross negligence on the facts would have included the fact that the
accused had left the office unattended for some considerable time or if he had left the
key of the office or safe at a place where any person who cared to look for it could
have found it. In a nutshell, the state must provide evidence showing that the accused
302
acted in total disregard of the safety of the property in question. The facts of the court
in Republic v Kachomba1 and Republic v Saidi2 further affirms this approach.
1
(1971 – 72) 6 ALR Mal 209 (H.C.) The facts of this case were as follows; the accused was
employed in a postal agency and had charge of the keys to the cash chest. On the relevant day, he
had put money in a chest, locked it, locked the door of the building and went home taking the keys
for the chest and the door with him. When he got home, he went out that evening leaving both
keys in his overcoat. He also locked the door of the house, when he came back he found that his
house had been broken into and the keys taken away. The postal agency was also broken into the
same night and the safe was opened and the money he left there was stolen. He was charged with
the offence of negligence in the preservation of public property but was acquitted because on the
facts of the case, it could not be said that the accused person was grossly negligent or reckless.
2
9 MLR 264 (H.C.) In the case, the accused person, left money in an unlocked drawer of his
desk which was in an office which he shared with his immediate superior. Further, there was
constant movement of people in the office. His immediate superior was in the office and saw the
accused person placing the money in the drawer. On these facts, it was held that the accused person
was grossly negligent and was convicted of the offence under section 284 of the Penal Code.
As to what acts will amount to gross negligence or recklessness is a matter of

fact to be decided on the facts of each case. In Republic v Jere328, Cram, J. stated:
There is no world-wide or absolute standard of gross negligence: to forget the key of a
safe containing money and go out of the room for a time in a wellregulated office with
little or no access to strangers, in Britain, would be a careless action, but hardly gross
negligence; where as in some countries it would be gross negligence not to secure the
key continually to the body by a chain. 329 The importance of the statement lay in the
emphasis it places on the facts of each case in deciding on whether or not one is
grossly negligent.
(iv) The public property is lost, stolen or cannot be accounted for
328 (1966 – 68) 4 ALR Mal 397 (H.C.)
329 (1966 – 68) 4 ALR Mal 397 at p. 399; See also Republic v Rabson, 11 MLR 277 (H.C.)
303
3. The mental element of the offence
D. ROBBERY
1. Introduction
Simply put, robbery is theft with violence. Though somehow incomplete, this
description reflects the essence of the offence of robbery. Thus to some extent unusual,
robbery combines a property offence (theft) with an offence of violence (an assault, a
wounding or causing grievous bodily harm), with penalties more severe than the
punishment stipulated for those individual offences.330 This can be partly explained on
the facts that the use of violence makes the theft likely to succeed and, on the other
hand, the fact that the accused person wanted to steal makes the use of violence more
highly motivated and premeditated.331 More importantly, the fact that the accused
person used violence to complete a theft greatly changes the moral character of his
action, necessitating the criminalization of his wrong by the combined offence of
robbery. In the offence of robbery, the courts mind is applied not only to the theft but,
most importantly, the violence employed to achieve it. In the words of authors of
Criminal Law: Theory and Doctrine, that:
The expectations of personal and property security are preconditions of a stable,

meaningful life; for both individuals and society. Robbery undermines both of
these expectations. Unlike theft, the victim of a robbery cannot resort to any
reassuring knowledge that at least her interest in personal integrity was not
330 Under section 301 of the Penal Code, the maximum sentence for an aggravated robbery
is death or imprisonment whilst the maximum sentence for theft is fourteen years and that of
grievous bodily harm is fourteen years as well.
331 Note, “A Rationale of the Law of Aggravated Theft” (1954) 54 Columbia LR 84
304
attacked. Thus it is perhaps misleading to suggest that robbery is a species of
aggravated theft. The deference is not merely one of degree.332
But to say that robbery is a very serious offence without qualification is unfair to the
offence. Robbery brings together conduct that can be extreme and involving dangerous
weapons and extreme violence and, at the same time, conduct that is minor, for
example, bag-snatching. Our criminal law recognizes the deference in weapon and
violence involved in the commission of the offence of robbery and, as a result, provide
for two different punishments for simple robbery and aggravated robbery.333
At common law, robbery was regarded as an aggravated form of theft. Today in

different jurisdictions including Malawi it is treated as a separate crime distinct from
theft. It is provided in our Penal Code by section 300 of the Penal Code that reads as
follows:
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 in order to obtain or retain the thing stolen or to prevent or overcome
resistance to its being stolen or retained, shall be guilty of a felony termed
robbery.

The elements of the actus reus of the offence of robbery are as follows:
332 A.P. Simester and G.R. Sullivan, Criminal Law: Theory and Doctrine Oxford(2 nd ed.) (2003) at p
487
333 Section 301 of the Penal Code provides for the punishment for the offence of robbery in
Malawi and reads as follows:
Any person who commits the felony of robbery shall be liable to imprisonment for
fourteen years.
If the offender is armed with any dangerous or offensive weapon or instrument, or is in
company of one or more other person or persons, or if, at or immediately before or
immediately after the time of the robbery, he wounds, beats, strikes, or uses any other
personal violence to any person, he shall be liable to be punished with death, or with
305
(i) Theft;
(ii) Accompanied by the use of violence or threat of violence;
(iii)To any person or property
(iv) Which occurs immediately before, during or immediately after the theft;
(v) In order to obtain or retain the thing or overcome any resistance
(i) Theft
Before any person can be convicted of the offence of robbery, it is necessary that
the person must steal first. All the requirements for the offence of theft must be met.
These requirements have been discussed above and need not to be repeated here. It is
sufficient, as far as these requirements are concerned, to point out that the thing must
be one that is capable of being stolen, that there must be a taking or conversion, that
the person must not have a claim of right over the thing. Thus, if the accused person
has a defense to the offence to the offence of theft, there can be no conviction for
robbery. For example, where a person, blandishing a weapon in order to make another
give him a thing which D believes he has a claim of right over there could be no
robbery. Conviction for another offence such as possession of an offensive weapon
might be possible. It is a fundamental principle for the offence of robbery that if there
is no theft, there can be no robbery. For that reason a person who commits the offence
of theft can be charged both with theft and robbery.
(ii) Violence or threat of violence

Apart from committing the offence of theft, it is important that the accused
person must use or threaten to use violence against any person or property. Where the
accused uses threats of violence, such threats may be express or implied. If a person
points a gun at someone whilst stealing he will be guilty of robbery even though he
never said anything.
Unlike the relevant English provision, section 300 of the Penal Code does not
require that person who is threatened with violence must actually fear. All that is
required is that the accused person threatens another with violence.Suppose D intends
to steal from a bank. He points a gun at a bank teller who knows that the gun that D is
carrying is a toy, and that the glass before he is bullet proof. Even though she is not
afraid that any violence will be actually used against her, D will be guilty of robbery
for merely threatening violence against the bank teller in order to steal.
306
(iii)Against any person or property
Suppose a person violently snatches a lady‘s handbag, without touching the
owner herself. Is this robbery? Section 300 stipulates that the violence can be to ―any
person or property.‖ In short, the violence can be directed at both the individual and the
property itself. And hence on the facts presented at the beginning of this paragraph, the
offence of robbery will be said to have been committed. There are cases where even
though the accused person has used violence against the property it can be questioned
whether the offence of robbery has been committed. On the other hand, there are cases
where violence is used against property and none would legitimately question whether
robbery has been committed. For instance, if D uses explosives to blow up an auto
teller machine at a bank in order to steal cash, the offence of robbery will be said to
have been committed.
Further, the violence can be perpetrated against both the victim of the theft or
any other person as long as it is used in order to retain or overcome resistance to the
1
Section 8 of the English Theft Act, 1968 provides:
(1) A person is guilty of robbery if he steals, and immediately before or at the time of doing
so, and in order to do so, he uses force on any person or puts or seeks to put any person
in
fear of being then and there subjected to force. [Emphasis supplied]
(2) …
stealing. For that reason, a person who steals without violence and uses or threaten to
use violence against a person who is chasing him will be guilty of robbery.
Correspondingly, if D points a gun at V‘s colleague, T, in order to obtain money from

V, D commits robbery (of V).
(iv)During, immediately before or immediately after

Section 300 of the Penal Code requires that the violence can be used immediately
before, during or immediately after the theft has been committed.
307
Suppose the following facts: D picks C‘s pocket, extracting C‘s wallet. V realizes what
D has done and confronts him. D violently strikes C and runs away. Has D committed
the offence of robbery, or is he guilty of separate offences of theft and assault? The
answer depends on whether or not the violence is employed ―in order obtain or retain
the thing stolen or to prevent or overcome resistance to its being stolen or retained…
‖334
As to the time-frame required it depends on the facts if each case.
(v) In order to obtain, retain or overcome resistance

The mere coincidence of theft and violence is insufficient for robbery. The
violence must be used or threatened ―in order obtain or retain the thing stolen or to
prevent or overcome resistance to its being stolen or retained.‖ Here the motive is for
the use of violence is important. If D assault V and then, while V is unconscious,
decides to take his wallet, D commits assault and theft, and not robbery. Likewise, if
D, intending to steal maize from C‘s garden, is attacked by the later with a clear
intention of either murdering him (D) or doing him grievous bodily harm, D‘s acts of
self-defence will not render him guilty of robbery.
Implicitly, the use of violence by the accused person must itself be intentional. If
D accidentally knocks C over while trying to steal her bag, he cannot be guilty of
robbery since he did not mean to use force in order to steal.
The mental element

The accused person must use the violence with the intention of stealing or
overcome resistance to the stealing. Whilst the mens rea for theft is not spelt out in
section 300 of the Penal Code, it is clear that there must be mens rea of theft. At the
same time, the violence must be used or threatened intentionally for the purpose of
committing the robbery.
E. HOUSEBREAKING AND BURGRARY

1. Introduction
The offence of housebreaking and burglary is one of the most traumatizing of all
the offences. The knowledge that someone entered into your house whilst one was
308
sleeping gives one a great sense of insecurity. As one judge has observed, if people
cannot be safe in their homes, where else can they be. It is for this reason that the
legislature set the punishment for housebreaking and burglary to death or
Historically at common law, the offence of house breaking and burglary were not
crimes per se but rather aggravated forms of theft. For that reasons if a person breaks
into a house without stealing he was convicted of attempted theft. It was later that
house breaking was regarded as a separate substantive offence.
The gravamen of the offence is unlawful entry into another‘s house. It seeks to
protect a right of a householder to undisturbed habitation of his house or storage of his
property. The governing provisions of the Penal Code are sections 308 and 309 of the
Penal Code. Section 309 of the Penal Code provides as follows:
Any person who –

(a) breaks and enters any building, tent or vessel used as a human dwelling with
intent to commit a felony therein; or
(b) having entered any building, tent or vessel used as a human dwelling with
intent to commit a felony therein or having committed a felony in a such
building, tent or vessel breaks out thereof, shall be guilty of a felony termed
―housebreaking‖ and shall be liable to be punished with death or with
If the offence is committed in the night it is termed ―burglary‖…

It is clear from the wording of section 309 that housebreaking alone is not a crime. To
constitute a crime the housebreaking must be accompanied by an intention to commit
felony in the house broken into or one must break out of the house having committed a
felony in the house. ―Burglary‖ is not a separate offence from that of housebreaking:
it is an aggravated form of housebreaking. The fact that the offence was committed at
night renders burglary more serious and one that poses the greatest danger to the
occupants of the affected house.
Section 311 of the Penal Code enacts a separate offence of breaking into a
building and committing a felony. What differentiates housebreaking and burglary
from the offence under section 311 of the Penal Code is that, in cases of
housebreaking and burglary, the building broken and entered into is a ―human
dwelling.‖ Further, the maximum punishment for housebreaking and burglary is death
309
or with imprisonment for life whilst that for breaking into a building is ten years. The
difference in the maximum punishments for the two types of offences reflects the
widely felt difference in seriousness between breaking into any other building and one
which is used as a dwelling. But most importantly, it is the psychological harm that
accompanies housebreaking and burglary that differentiates the two.

The elements of the actus reus for the offence of housebreaking are:
(i) breaking and entering/breaking out;
(ii) human dwelling;
(iii)with intent to commit a felony.
(i) Breaking
The first element that must be proved by the state is that the accused broke and
entered into a dwelling. ―Breaking‖ is defined by section 308 of the Penal Code as
follows:
A person who breaks any part, whether external or internal of a building or

opens, pulling, pushing, lifting, or any other means whatever, 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 the building to another,
is deemed to break the building…
A person who obtains entrance into a building by means of any threat or artifice
used for that purpose or by collusion with any person in the building or who
enters any aperture of the building left open for any purpose but not intended to
be ordinarily used as a means of entrance, is deemed to have broken and entered
the building.
The definition breaking contained in section 308 has a wide ambit. A person can break
into a building in different ways: firstly, a person can ―break‖ into the building, which
means literally forcing one‘s way into the building. Secondly, a person can break into
the building if he ―opens, pulling, pushing, lifting, or any other means whatever, any
door, window, shutter, cellar, flap or other thing intended to close or cover an opening
in a building.‖335 This meaning gives the term ―break‖ a technical aspect. Thus, a
person will be said to break into a building even if he enters through a door that was
335 Section 308 of the Penal Code in part
310
merely closed but not locked or pushes a window that was partly closed. It should be
mentioned that if a person gains entry into a building through any aperture of the
building ordinarily used as a means of entrance into the building (a good example of
which is a door) and which was left open such that he cannot be said to have opened it
cannot be said to have broken into the building. Thirdly, and lastly, a person is
―deemed to have broken and entered a building‖ if he ―enters any aperture of the
building left open for any purpose but not intended to be ordinarily used as a means of
entrance‖ into the building. Thus, for example, if a person enters a house through an
open window or squeezes himself down through the chimney he will be said to have
broken into the building even though he cannot be said to have broken anything or
opened anything.336
Breaking also includes opening a door from one part of the building to another.
The essence of breaking is unlawful opening of the building. It is clear that for
breaking to take place no actual damage need to done to the structure. Thus to push
open a closed (though not locked) door or window or even a partially closed door or
window constitutes breaking. But there is no breaking where a person merely walks
through an open door. However, where a person enters any building through any
―aperture‖, i.e., a window or any other thing, left open but not intended to be used as
a means for entrance will be said to have broken into the building. If a person obtains
permission to enter a building and such permission is obtained by deception or fraud
will not amount to housebreaking. However, if permission is obtained by threats it
suffices.
In the same way a person can break out of a house. The principles applicable to
breaking in apply to breaking out. A person can be said to break out of a building if he
has a right of entry and gets out. A person who is given accommodation at a house and
who commits a felony in the house and leaves will be said to have committed the
offence.
(ii) Entry
A person commits the prohibited conduct if he both ―breaks‖ and ―enters‖ a
dwelling house: mere breaking without entering will not attract liability although such
person may be convicted of attempted housebreaking. Section 308 of the Penal Code
further defines entering a building as follows:
336 See Regina v Lichapa, (1964 – 68) 3 ALR Mal. 264
311
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.
Entry is a physical activity rather than an instantaneous event. But according to the
definition in section 308, one is said to have entered a building the moment any part of
his body or any part of an instrument he is using is within the building. It is not
necessary that the accused must completely enter the building. Thus, for example,
inserting a fingertip beyond the line of window frame would amount to an entry. So
too putting a pole that one is carrying through the window to hook out clothes from the
house constitutes entering even if the accused was standing outside the house. For that
purpose, the term ―enter‖ is somehow technical. The advantage of this definition is
that it is reasonably straightforward to apply resulting into little or no controversy in
the majority of cases.
(iii) Human dwelling

It is necessary that the building broken into should be a ―human dwelling.‖
Nowhere is the expression ―human dwelling‖ defined in the Penal Code. However
section 4 of the Penal Code defines a ―dwelling house‖ as follows:
―Dwelling house‖ includes any building or structure or part of a building or

structure which is for the time being kept by the owner or occupier of a residence
therein of himself, his family or servants or any of them and it is immaterial that
it is from time to time uninhabited;
A building or structure adjacent to or occupied with a dwelling house is

deemed to be part of the dwelling house if there is a communication between
such building and the dwelling house either immediate or by means of a covered
and enclosed passage leading from the one to the other but nor otherwise;
Human dwelling and a dwelling house are two different things. The first is wider and
includes any structure used for human habitation at the time of the breaking. The High
Court in Republic v Kadzani1 has held that a school hostel is a human dwelling for the
purpose of the offences of housebreaking and burglary.
(iv) Authority to enter

Though not expressly mentioned by the section, it is arguable that the crime of
housebreaking is committed when the person has no permission or authorization to
312
enter. Apart from the occupier of the dwelling (usually the owner or leaseholder), any
other member of the household has a general authority to enter and to invite other
persons on the premises for lawful purposes, although this authority can be revoked or
overridden by an occupier. What this means is that an occupier of a house who breaks
and enters his house with the intention of killing a person who is sleeping in the house
cannot be said to have committed the offence of housebreaking or burglary.
However, a person who has lawful authority to enter into a building and whose
permission is qualified, for instance a servant who has no permission to enter his
master‘s bedroom, can be guilty of housebreaking if he breaks into the bedroom. A
licensee who exceeds his permission can be guilty of housebreaking.

The required mental element for the offence is two-tiered: firstly, the accused
person must have an intention to break and enter the building and, secondly, he must
have an intention to commit a felony after gaining entrance into the building. Merely
breaking into a house does not constitute an offence. The accused person must also
intend to commit an ulterior crime which is felonious once in the house. The offence
intended to be committed must be separate from the offence of housebreaking itself.
Thus, for example, a person who destroys another‘s dwelling house during which he
enters the house for the purpose of inflicting such damage to the house will not be
guilty of the offence of housebreaking but rather of malicious damage to property.
The first type of intention can be excluded by mistake, for instance, if a person
believe that he is entering into his own house he will not be guilty of the offence.
1
11 MLR 99
F. RECEIVING PROPERTY STOLEN OR UNLAWFULLY OBTAINED
1. Introduction
There is an argument that there would be fewer thieves if there were fewer
receivers of stolen goods. In other words, as long as there are people willing and ready
to act as outlets for stolen goods, thievery will remain a profitable endeavor. It requires
no criminologists or police officer to know that there is a sizable group of
unscrupulous businessmen who specialize in dealing in stolen goods. Though the
majority of these people will boast that they have never themselves stolen anything
313
from anybody, the law would have failed in its agenda of protecting the property of
hardworking citizens if it were to let these people go scot-free. It is exactly for this
reason that in the majority of jurisdictions in the world, penal statutes criminalize
dealing in goods unlawfully acquired if one knows that the goods were so required or
has reasons to believe that they were unlawfully acquired. Under our Penal Code, the
offence is provided under section 328.
Because of its long name, the offence discussed here will be, for the sake of
convenience, be referred simply as an offence of ―receiving.‖ The offence is provided
for under section 328 of the Penal Code. Under subsection (1) of that section, a person
commits the offence of receiving if, known to him or having reasons to know, he
―receives or retains‖ property ―knowing or having reason to believe the same to

have been feloniously stolen, taken, extorted, obtained or disposed of…‖ Under
subsection (2) of the same, it is equally an offence to ―receive or retain‖ property
―knowing or having reason to believe the same to have been unlawfully taken,
obtained, converted or disposed of in a manner which constitutes a misdemeanor…‖
It should also be mentioned that if it is established that the accused person

actually knew that the property was stolen or was obtained after the commission of a
crime that person may be simultaneously convicted as an accessory after the fact to
that crime. However, the general practice is to charge such people for the specific
offence of receiving stolen property.

The conduct being targeted by the law here has two forms: (a) receiving property
unlawfully acquired and, (b) retaining property unlawfully acquired.
(i) Receiving
The first aspect of the targeted conduct consists of ―receiving‖ property
unlawfully acquired. The concept of ―receiving‖ presupposes two things: firstly, the
act of taking into possession or assuming control over a thing. Receiving can take
place in any of the recognized ways in which movable property can be derived,
including constructive modes of delivery. Mere negotiation between the parties will
not suffice. The possession need not be permanent; the prohibited act will be
committed even where the accused person keeps the property temporarily for another
or where he transmits the goods to another person. The receiving must be unlawful in
314
the sense that it must be without the consent of the owner or without the intention of
returning it to the owner or handling it over to the police.
(ii) Retaining
The second type of the prohibited conduct consists of retaining property
unlawfully acquired. Retaining here means to keep. There is a difference between
receiving and retaining. It is possible for a person to receive property without
knowledge or belief that the property was unlawfully acquired (and hence not guilty of
the offence) and know later on that the property was actually unlawfully acquired in
which case if he retains (keeps) the property with such knowledge or belief he will be
said to have committed the second type of the prohibited conduct even though the
initial receiving was innocent. The section then requires purchasers in good faith who
later discover the unpleasant truth about their purchases to inform the authorities. As
to the time limit within which they must do so, it is a question of fact.
As with receiving, the retention of the property must be unlawful in the sense
that it must be without the consent of the owner or without the intention of returning it
later to the owner or handling it over to the police.
(iii)Property unlawfully acquired

It should be mentioned that the offence of receiving coincides with another crime
or unlawfulness surrounding the acquisition of the property by the person who
delivered the property to the accused person. For that reason, before a person can be
convicted of the crime it must be factually proved that the property that was received
was actually unlawfully obtained. Section 328 (3) provides as follows:
No person shall be convicted of an offence under this section unless it shall be

proved that the property which is the subject matter of the charge has in fact
been stolen, or feloniously or unlawfully taken, extorted, obtained, converted or
disposed of.

The mens rea for the offence comprises in (a) knowledge that the property
received or retained was unlawfully obtained: knowledge here means actual
knowledge of the person and a subjective test ought to be applied, and (b) having
315
reasons to believe that that the goods were unlawfully acquired. Speaking on the
difference between these two forms of mens rea, the Supreme Court in Tagwira v
Republic1 had the following to say:
It will be seen that the actual receipt must be coupled either with knowledge that
the property was stolen or that the accused had reason to believe that it was
stolen property. The wording of our section differs from that of s. 33 (1) of the
Larceny Act 1916 and is modeled, insofar as knowledge is concerned in any
event, on s. 411 of the Indian Penal Code.
It is clear that the word ―knowing‖, as used in the section, refers to cases where
the accused had actual knowledge that the property was stolen, such as an
awareness produced by participation in the theft, or by information derived from
the actual thieves, or where he knew of facts from which the overwhelming
conclusion was that the property was stolen. The words ―having reason to
believe‖ seem to us to refer to cases where the circumstances attendant on the
transaction of sell are such as to engender a belief that the property was stolen,
and the adequacy or inadequacy of the price paid. The distinction between the
two types of mental element is a real one. In our judgment, a charge should set
them out in the alternative. If that is done, difficulty is avoided.
This quotation from the Supreme Court explains the law on the mental element of the
offence. What has to be added is that, for the second type of mental element, ―belief‖
is different from suspicion. The circumstance surrounding the transaction must
engender belief which includes what is called ―willful blindness.‖ Mere suspicion,
however strong, will not suffice. There is a need that the circumstances surrounding
the transaction must go beyond making one suspicious to the extent of making him
believe that the goods were unlawfully acquired.
1
10 MLR 149
It should be pointed out the section does not place a duty on a person to
investigate whenever one wants to buy or receive something. What the section does is
to criminalize receiving property with knowledge that it was stolen or with a belief
that it was unlawfully acquired to the point of being an accomplice to the crime. That
is the essence of the crime of receiving and that is the basis of the criminalization: it is
not in the failure to investigate.
316
G. FALSE PRETENCES
1. Introduction
Chapter XXXI of the Penal Code contain provisions concerning various offences
relating to false pretences and fraud. These provisions have not attracted a mass of
case law, but it is appropriate in this book to discuss at least one of these offences and
how it has been interpreted by our courts. This chapter, therefore, will discuss the
offence of obtaining by false pretences as enacted in section 319 of the Penal Code. By
section 319 of the Penal Code–
Any person who by any false pretence, and with intent to defraud, obtains from
any other anything capable of being stolen, or induces any other person to
deliver to any person anything capable of being stolen shall be guilty of a
misdemeanor and shall be liable to imprisonment for five years,
2. Prohibited conduct
The actus reus of the prohibited conduct of the offence of obtaining by false
pretences contain a variety of element, which will be considered below:
(i) false pretence;

(ii) obtaining or inducing another person to deliver;
anything capable of being stolen
(i) false pretence

As a basic requirement, there must be a false pretence. The meaning of false
pretence is set out in section 318 of the Penal Code:
Any representation made by words, writing or conduct, of a matter of fact, either

past or present, 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.
The definition introduces a number of additional elements that must be analyzed
themselves.
(a) Representation
The representation may be by words, writing or conduct. The question whether
the representation alleged by the prosecution was indeed made by the accused person
317
is a question of fact.337 Few problems would arise where a representation is made by
words or writing. Where a representation is made by words or writing, the only
problem that may arise would be where a person says one thing which the other person
believes means another. It is important that the words must point to a specific fact. In
Republic v Hassan338 the accused ran of petrol on a road near the complainant‘s
mission. He asked the complainant for some petrol promising to return it when he
comes back from the next town. On being asked by the complainant whether he was a
Young Pioneer, the accused replied that he was ―above a Young Pioneer‖ which the
complainant took to mean that he was a civil servant. He supplied with the requested
petrol which was never returned. In a charge of obtaining goods by false pretences, it
was held that a charge of obtaining goods by false pretence can succeed only if it is
proved that the accused person made a specific falsehood. It does not apply where the
complainant acted on a wrong opinion he formed on his own from the accused
person‘s words or conduct.
More problems could be expected from cases where the representation where the
representation is made by conduct. Representation by conduct can happen in different
ways. For instance, where a person dresses in a police uniform in order to convey the
impression that he is a police officer or where a person goes into a restaurant he sits on
a table and orders a meal which creates an impression that he would pay for the meal.
Whether or not there is a representation by conduct must be determined in the light
circumstances existing at the time of the conduct or preceding it. D, pretending to be
blind and disabled and wearing tattered clothes, sits outside a shopping mall, leading
to a passerby to give him money that is a representation by conduct. In England there
is a line of authority that writing a cheques to someone implies a representation that
the cheques will be honored when presented for payment.339
As in contract law, silence or non disclosure is not generally a representation.

Three exceptions can be mentioned: firstly, a statement which is half–truth because,
337 Mputahelo v Republic, Criminal Appeal No 29 of 1999 (H.C.) (Unrep)
338 (1971 – 72) ALR Mal 443 (H.C.)

339 As was stated by Robert Goff LL in Gilmartin [1983] QB 953 at 962 that:
By a simple giving of a cheques whether postdated or nor the drawer impliedly
represents that the state of fact existing at the date of delivery of the cheques is such that in
the ordinary course the cheques will on representation for payment be in or after the date
specified in the cheque, be met.
318
D‘s silence has the effect of distorting the meaning of some positive representation
that he has made. For example, it would be a deception to say that one has a clean
driving silence if one is waiting a sentence for a driving offence for which
endorsement is mandatory. Secondly, a misrepresentation may be inferred from a
statement which is true when made, but which, to the knowledge of its maker, has
become untrue before it is acted upon by its addressee, and the maker fails to inform
the addressee of the change.
(b) Representation ―of fact‖

It must be a representation of fact. This automatically excludes, as in contract or
law of tort, a mere statement of opinion or prediction about a future event. A
representation of law is prima facie excluded. There may be problems where it may be
difficult to say whether a representation is of fact, law or both.
(c) The falsity of the representation

Apart from proving that the accused made the representation, it is necessary that
the prosecution must prove that the facts contained in the representation are false.340
(d) Fact, either past or present

The representation must be of a fact which is either past or present but not future.
In most cases, the question as to whether a representation relates to a fact which is
either past, present or future occasions little problems. Problematic, however, are cases
where in a single statement a person makes a representation of a fact which is both
341
past or present. In Republic v Ndasauka; 1
The accused went to the house of the complainant who had an eye problem and
represented himself as a herbalist and that he could cure the complainant’s
ailment within six days. He demanded K80 for the service which was paid to
him. He applied “medicine” to the complainant’s eyes but after six days the
complaint was not cured. The accused vanished. It was noted that there were
two representations: the first was that the accused person was a herbalist. The
second was that he could cure the ailment in six days. The first was present
340 Mputahelo v Republic, Criminal Appeal No 29 of 1999 (H.C.) (Unrep)

341 MLR 156 (H.C.)
319
whilst the second was future. In confirming the appellants conviction, it was held
that although a promise as to future conduct was not in itself a false pretence of
an existing fact, but within the ambit of section 318 of the Penal Code, the fact
that it was stated side by side of a false representation as to an existing fact,
could amount to a criminal offence.342
If an accused person obtains goods from another promising to pay back later, if
he fails to live up to his promise, the offence under section 319 of the Penal Code will
not be committed because the promise to pay back the goods is a future fact.343
The requirement that the representation must be of a fact present or future

excludes also cases of representation about future intention but includes cases of
present intention. Thus, if the accused falsely states that he intends to do something in
the future there are two representation: firstly, that he has an intention currently
running, to do something in the future.
(e) ;
(ii) Consequences of the false pretence

Under section 319 of the Penal Code an additional definitional element of the
offence is that the false pretence must be operative, that it to say, it must produce a
prohibited result, viz., the accused must obtain from any other person a thing capable
of being stolen or must induce any other person to deliver to another a something.
There are three distinct components of this element.
(a) An obtaining
The requirement of an obtaining is not addressed in the Penal Code. It is
submitted that a person will be said to have obtained something is he acquires any of
the proprietary right over a thing. Such proprietary rights include ownership,
possession or control. However, there must be a fact of obtaining.
Secondly, the offence will be committed where the accused ―induces‖ a person
to deliver to another property.
342 See also Sitikhala v Reginam, (1964 – 66) 4 ALR Mal 1
343 See Republic v Hassan, (1971 – 72) 6 ALR Mal. 443 (H.C.)
320
(b) Anything capable of being stolen
This component has the same meaning as that assigned to it under section 270 of
the Penal Code and discussed above.
(c) Belonging to another

It is not a requirement under section 319 of the Penal Code that the thing
obtained or delivered must belong to another person. So if D by false pretences make
Y to give him a car which in fact belongs to him an offence under the section will be
said be to have been committed. Thus, D leaves his car at a garage for some repairs.
After sometime, he goes to the garage and falsely states that he had paid all the bills
due for the repairs and the car is handed over to him. The offence will be said to have
been committed.
(d) Causation
Section 319 states that ―by any false pretence‖ either the accused obtains or
induces another to deliver to another anything capable of being stolen. By implication,
there is a requirement of causation. As a matter of fact, the false pretence must be an
operative cause of the obtainment or delivery of the goods. Under the common law, it
was required that it must be inducement of or reliance by the representee. Without it,
the person would not have given the accused the thing obtained. Malawian courts have
adopted this common law approach. In the words of the court in Republic v
Hassan, it must be proved beyond reasonable doubt that the accused person‘s
falsehood ―operated on the mind of the complainant and as a result of it the
complainant parted with the goods.‖3441 There is therefore no offence under section 319
where the representee is aware of the falsity of the accused‘s representation but hands
over the property anyway, although in this case there may be an attempt to commit the
offence.
It is not necessary that the false pretence should be the sole reason for which the
representee acted as he did. The condition is satisfied even if the false pretence is one
of the reasons. Conversely, there is no obtaining by false pretence if the representee
344 ALR Mal. 443 at 446. See also Mputahelo v Republic, Criminal Appeal No 28 of 1999 (H.C.)
(Unreported)
321
believes it but is unaffected, for instance, where the representation makes no
difference.
3. Mental element
Section 319 of the Penal Code describe the required mens rea for the offence as
―intent to defraud.‖ This means that the accused must for a specific intent to achieve a
specific result. In Nkunika v Republic345 the Supreme Court of Appeal considered the
meaning of the expression ―intent to defraud‖ as used in section 335 of the Penal
Code346 and held that ―to defraud is to deprive by deceit‖ and that a man acts with an
intent to defraud if ―by conscious misrepresentation‖ he induces another to act to his
own prejudice.
Section 318 of the Code further requires that the accused must either know that
his representation is false or must not believe that it is actually true. Mere recklessness
on the part of the accused as to whether his representation is false will not suffice.
H. ARSON
1. Introduction
Setting fire to somebody‘s property is one of the worst modes of destroying
property. Fire has the capacity to literary destroy things without even leaving any
prospect of savaging anything. For this reason, amongst the offences on ―malicious
injuries to property‖ in Division VI of the Penal Code, the offence of willful and
unlawful setting fire to property, or simply ―arson‖, attracts life imprisonment as the
maximum punishment.
Under section 337 of the Penal Code, arson is committed if a person ―willfully
and unlawfully‖ sets fire to property, i.e., ― any building or structure whatsoever…
any vessel…any stack of cultivated vegetable produce, or of a mineral or vegetable
345 [1990] 13 MLR 335 (S.C.A)
346 Section 335 of the Penal Code provides for the offence of fraudulent false accounting.
322
fuel…a mine, or the workings, fittings or appliances of a mine.‖ In terms of its
definition, arson is not a complex offence and does not produce intractable
complexities in court.
2. Prohibited conduct
The conduct targeted by the relevant provision consists of unlawful setting fire to
property specified in the section. The prohibited conduct is committed once property
has been set on fire.
By requiring that the setting of fire of property must be ―unlawful‖, it means

that it must be without any lawful justification whatsoever. As stated above legal
justification can be accorded by statutory law, common law or, indeed, customary law.
Consequently, in principle a person cannot commit the offence of arson against his
own property because there is no law that prohibits a person from destroying his own
property even by fire. This position was put beyond any doubt by the High Court in
Republic v Komihiwa.1

Section 337 requires that the setting fire to property must be ―willfully.‖ As was
stated in Republic v Metani2, ―willfully‖ as used in section 337 means acting
intentionally, and not accidentally or involuntarily. It is clear that the required mental
element for the offence consists of an intention to set fire to property. Mere negligence
would not suffice.
1
7 MLR 325
2
7 MLR 341
323
CHAPTER THIRTEEN
FORGERY AND UTTERING A FALSE DOCUMENT
I. FOREGRY
J. UTTERING A FALSE DOCUMENT
4. Introduction
The term ―forgery‖ is defined by section 351 of the Penal Code as ―the making
of a false document with intent to defraud or to deceive.‖ The general punishment for
the offence of forgery is imprisonment for three years.347
5. The prohibited act

The prohibited conduct for the offence of forgery takes the form of a making of a
false document.
(i) Making
324
A person can be said to make a false document if he has done anything in respect
of the document that renders it ―false‖ as that word is understood under section 353 of
the Penal Code.348
(ii) False document

It should be made clear at the very outset that a document is not made false (and
hence forged) merely because it contains untrue statements. False statements or lies do
not become a forgery when they are reduced into writing. A document becomes false
for the purposes of the offences of forgery or uttering if the document ―tells a lie
about itself.‖349350 A document is made ―false‖ if any manner specified in section 353
of the Penal Code.351 Under the section a person is said to make a ―false document‖ if
he or she–
(a) makes a document purporting to be what in fact it is not;

(b) alters a document without authority in such a manner that if the alteration had
been authorized it would alter the effect of the document;
(c) introduces into a document without authority whilst it is being drawn up matter
which if it had been authorized would have altered the effect of the document;
(d) signs a document –
(i) in the name of any person without his authority whether such name is or is
not the same as that of the person signing;
(ii) in the name of any fictitious person alleged to exist whether the fictitious
person is or is not alleged to be of the same person as the person signing;
(iii)in the name represented as being the same of a different person from that
of the person signing it and intended to be mistaken for the name of that
person;
(iv) in the name of a person personated by the person signing the document,
provided that the effect of the instrument depends upon the identity between the
348 See Punch v Republic, 10 MLR 426 (H.C.)
349 See Republic v Mkagula, (1971 – 72) 6 ALR Mal. 450 (H.C.) and Chief Public Prosecutor v
Liunde,
350 MLR 481 (S.C.A.)
351 Republic v Mkagula, (1971 – 72) 6 ALR Mal. 450
325
person signing the document and the person whom he proffers to be. From the
foregoing, it is clear that falsification can be achieved in a many different ways, for
example by erasure, alteration, substitution or addition of particulars on the documents
as long as the effect of such acts is to make a document something other than what in
fact it is or alter the effect of the document.
It is not the information itself that must be false but rather the document. If D
writes a letter to C informing him that X is sick and admitted at the hospital when
in fact X is as fit as a fiddle, though the information contained in the letter is false
but that does not render the letter a forgery. The letter is not lying about what it is:
it is a letter written by D to C. There is nothing false about that. In Republic v
Mkagula,352 the accused person had K1 in his post office savings account. He
altered an entry in his book from K1 to K16 in effect showing that he had K16 in
his account. He then filled a demand form for a sum of K16. It was alleged that in
filling the demand form the sum of K16 which he knew was not in the account, the
accused person had committed the offence of forgery. It was held that the demand
form was not a false document holding that “the demand form purported to be
only what it was–a demand by the accused for payment of K16 at the post office
savings bank.”353
(iii)The document
352 (1971 – 72) 6 ALR Mal. 450
353 (1971 – 72) 6 ALR Mal. 450 at p. 452
326
What is made false should be a document. Section 352 purports to define what a
document is for the purpose of the offence of forgery and does so by excluding what it
is not. It says:
The term ―document‖ in this Division of this Code does not include a trade
mark or any other sign in connection with articles of commerce though they may
be written or printed.
What is clear is that a document is anything that is written or printed. Some of the
―documents‖ whose falsification have found their way into our courts include…
(iv) No need to prove prejudice

In order to prove the offence of forgery, it is not necessary to prove that any
other person was prejudiced by the falsification.
6. Mental element
Section 351 describes the required mental element for the offence of forgery as
―intent to defraud or to deceive.‖ It has been held that ―to defraud is to deprive by
deceit.‖354 By requiring that the accused person had an intention to defraud or deceive
entails that he must have had knowledge that he is actually falsifying a document.
Section 354 of the Penal Code provides for this element as follows:
An intent to defraud is presumed to exist if it appears that at the time when the
false document was made there was in existence a specific person ascertained or
unascertained capable of being defrauded thereby, and this presumption is not
rebutted by proof that the offender took or intended to take measures to prevent
such person from being defrauded in fact, nor by the fact that he had or thought
he had a right to the thing to be obtained by the false document.
With the section in mind, what would be the outcome on the following facts: X,
intending to sign a chaque in the name of another person without that other person‘s
authority, fails to achieve his intentions such that the cheque is badly spoiled and ink
poured all over it such that any person would know that there is something wrong with
the cheque. Can X be guilty of forgery?
354 Gondwe v Republic, (1971 – 72) 6 ALR Mal. 33 (H.C.)
327
K. UTTERING A FALSE DOCUMENT
1. Introduction
The offence of uttering a false document is enacted by section 360 of the Penal
Code that reads:
Any person who knowingly and fraudulently utters a false document shall be
guilty of an offence of the same kind and shall be liable to the same punishment,
as if he had forged the thing in question.
2. The prohibited conduct in the offence of uttering

The offence of uttering is committed when a person ―knowingly and
fraudulently‖ offers, passes off, presents or communicates a forged document to
another person. In most cases the person who utters a forged document is the person
who forged it. In that case he will be charged with two offences, namely forgery and
uttering. On the other hand, it is not uncommon for a person not party to the initial
forgery can utter a forged document. In that case he will be charged with the offence
of uttering and, under section 360 of the Penal Code, he is ―liable to the same
punishment, as if he had forged the thing in question.‖

The required mental element for the offence of uttering is an intention to
defraud. And for this reason, there is a need to prove knowledge on the part of the
accused person that the document is in fact false.
See
328
CHAPTER FOURTEEN
ROAD TRAFFIC OFFENCES
A. INTRODUCTION
For the past 10 years, Malawi has seen a surge in the number of both traffic and
pedestrians on the roads of Malawi with the consequences of a skyrocketing of fatal
accidents on the road. The pressure on the authorities for stiffer regulations resulted
into the passage of a new Aft of Parliament, the Road Traffic Act 355 in 1997 and which
repealed and replaced the Road Traffic Act of 1968.356
All of the offences discussed under this Chapter require that the accused must
―drive a vehicle,‖ ―on a public road.‖ For all of these offences, therefore, it has to be
determined what ―driving‖, ―a vehicle‖ and ―public road‖ mean. It is therefore
considered proper that these requirements must be discussed before coming to the
discussion of the constitutive elements of each one of these offences.
1. Driving
The essence of ―driving‖ is assuming control of the control apparatus of a
vehicle in order to control the movement of the vehicle and provided the facts of the
case can in the sense of the word be regarded as driving. It is therefore a question of
facts whether a person can be said to be driving or not. In England, it was held that a
person who releases the handbrake of a vehicle causing it to move whilst he is
controlling the steering is driving the vehicle even though the engine is not running, 357
so too a person who has the ability to control a vehicle which is being towed. 358 But a
355 Act No. 26 of 1997
356 Section 184 of the Road Traffic Act, 1997
357 See Burgoyne v Phillips, (1983) 147 JP 374
358 See McQuaid v Anderson, [1980] 3 All ER 540; [1981] 1 WLR 154
329
person who is pushing a car whilst steering with his hand through the window was
held not to be driving the vehicle.359 In short, the question of whether or not a person is
driving a vehicle is a question of fact to be decided by having regard to the facts and
to the ordinary meaning of the words and to avoid absurdity. 1 In Liunde v Director of
Public Prosecution,2 it was held that a person who is on the driving seat of a
stationery vehicle without controlling the steering and having no intention of doing so
cannot be said to be driving the vehicle even where the engine is running.
2. A vehicle
Under section 2 of the Road Traffic Act, a vehicle is defined as meaning–
…a device designed or adapted principally to travel on wheels or crawler tracks
band includes such a device which is connected with a draw-bar to a breakdown
vehicle and is used as part of the towing equipment or a breakdown vehicle
which is being salvaged other than such a device which moves exclusively on
rails.
3. On a public road
Section 2 of the Road Traffic Act provides that the phrase ―public road‖ shall
have a meaning assigned to it in the Public Roads Act. Under the Public Road Act,
public road means
B. RECKLESS OR DANEROUS DRIVING

1. Introduction
Section 126 of the Road Traffic Act creates an offence of ―reckless or
dangerous driving.‖ The offence can be rightly regarded as a successor to the offence
of careless driving under the repealed Act. Section 126 (1) and (2) read:
(1) No person shall drive on a public road recklessly or negligently.
359 Macdonagh, [1974] QB 448; [1974] 2 All ER 257

See
330
1
As was advised by Bolt J in Madaliar v Kayisi, that:
In the interpretation of statutes there is a presumption against absurdity, and where there is
ambiguity a court of law will endeavour to adopt an interpretation which is consistent with
common sense.
2
7 MLR 274 (S.C.A.)
(2) Without restricting the ordinary meaning of the word ―reckless‖ any person
who drives a vehicle in a willful or wanton disregard for the safety of persons or
property shall be deemed to drive that vehicle recklessly.
One of the central issues that must be resolved is whether the section provides for two
different offences: reckless driving and dangerous driving.
2. Reckless driving

The prohibited conduct for the offence of reckless or dangerous driving consists
of two acts: firstly, it consists of driving a vehicle in disregard for the safety of other
persons or property. For the offence of dangerous driving, the prohibited conduct
consists of creating potential danger.
But what does ―driving‖ mean? Section 2 of the Road Traffic Act defines the
words ―driver‖ and ―drive‖ as follows:
―Driver‖ means any person who drives or attempts to drive any vehicle or who
rides or attempts to ride any pedal cycle or who guides any draught. Pack or
saddle animal or held or flock of animals and ―drive‖ or any like word has a
corresponding meaning;
There is little help that is being derived from this definition.

Dangerous driving consists of driving a vehicle in a manner that creates danger to
other road users and property. The offence is complete if danger if potential danger to
other people or property is proved.
331
The required mental element for the offence under section 126 can take two
forms. Firstly, it can consist in “willful‖ driving of a vehicle in disregard for the safety
of other persons or property. The term ―willful‖ has been interpreted as meaning
―intentionally‖ as distinguished from doing something accidentally or

involuntarily.360
Section 126 (2) of the Road Traffic Act clearly does not intent to restrict the
ordinary meaning of the word ―reckless‖ as used in the section. So apart from giving
the word ―reckless‖ an extended meaning to include willfulness of conduct, the
ordinary meaning of the term still applies. But what is the ordinary meaning of the
word ―reckless‖ as used in our criminal law? It is a settled principle that the word
―reckless‖ means ―deliberate risk-taking.‖361 This requires that the defendant must
be aware of the risk he is creating or taking. It is this awareness or risk and an
intention to go ahead with the action that brings recklessness within the concept of
mens rea in the first place. This meaning of recklessness was adopted by the court in
reference to the offence of causing death by reckless driving under section 123 (1) of
the Road Traffic Act, 1968. Under that section, it was stated that driving was reckless
if a driver
―has intentionally taken risks or where his manner of driving is a deliberate choice of
conduct in which danger is likely to occur.‖362
C. INCONSIDERATE DRIVING
1. Introduction
The offence of ―inconsiderate driving‖ is governed by section 127 of the Road
Traffic Act. The section provides that–
No person shall drive a vehicle on a public road without reasonable

consideration for any other person using the road.
There was no equivalent of the offence of inconsiderate driving under the Road
Traffic Act, 1968. The offence covers such cases where there is no risk of harm
created by the accused‘s manner of driving. A person who deliberately drives his
360 Republic v Metani 7 MLR 341 (H.C.); R v Wamaseki 2 ALR Mal 69 (H.C.)
361 See Republic v Mbalazada 7 MLR 148; Zulu v Republic [1993] 16 (2) MLR 917; Kadutsa v
Republic 6 ALR Mal 337
362 Chief Public Prosecutor v Strokes 10 MLR 5 (H.C.) at p. 7

See
332
vehicle through a pothole full of water and drenches pedestrians can be charged of
inconsiderate driving.
2. The Prohibited Conduct

The prohibited conduct for the offence of inconsiderate driving consists in
driving a vehicle on the public road without reasonable consideration for any other
person using the road. It is necessary that
3. The Mental Element
333
D. DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR
DRUG
1. Introduction
There is a strong public perception that most of the traffic accidents are caused
by reckless or inconsiderate by one of the people involved and who was has
consumed intoxicating liquor or a drug having a narcotic effect. In most of modern
states, therefore, it is a criminal offence to drive a vehicle under the influence of
either alcohol or drugs.
Section 128 of the Penal Code represents a Malawian version of the

condemnation of driving under the influence of alcohol. The section reads as follows:
(1) No person shall on a public road–

(a) drive a vehicle;
(b) occupy the driver‘s seat of motor vehicle the engine of which is running; or
(c) being the holder of a driver‘s licence, occupy the seat in a motor vehicle next
to a holder of the learner‘s licence is or was driving the vehicle on a public road,
while under the influence of intoxicating liquor or drug having narcotic effect.
(2) No person shall on a public road–
(a) Drive a vehicle;
(b) Occupy the driver‘s seat of a motor vehicle the engine of which is running; or
(c) Being the holder of a driver‘s licence, occupy the seat in a motor vehicle next
to a holder of a learner‘s licence while the holder of the learner‘s licence is or was
driving the vehicle on a public road,
while any specimen of breath, blood or urine taken from his body indicate an
alcohol concentration of not less than either 0.08 grams of alcohol per one
hundred millilitres of blood or 0.08 grams of alcohol per two hundred and ten
litres of breath.
Two offences are created by the sections: subsection (1) creates the offence of driving
while under the influence of intoxicating liquor or drug having a narcotic effect and,
secondly, driving a vehicle with excessive amount of alcohol in blood.
2. Driving under the influence of alcohol
334
By section 128 (1) of the Road Traffic Act, a person who, when driving a
vehicle, occupying a driver‘s seat of a motor vehicle the engine of which is running or
providing driving lessons whilst under the influence of intoxicating liquor or drug
having narcotic effect commits an offence. Any of the prohibited acts must occur on a
public road. What constitutes driving has already been explained, so to what a public
road is.
Intoxicating liquor has a meaning assigned to it by the Liquor Act. Under that
Act, intoxicating liquor is defined as meaning…If it is a drug, it is necessary that it
must have a narcotic effect. This requirement that the drug must have ―narcotic
effect‖ excludes medicines, …
The offence under the section is committed when a person is under the
influence of intoxicating liquor drug having a narcotic effect. This requirement has
been interpreted to mean that the intoxicating liquor or drug must render the accused
―incapable of having proper control of his vehicle.‖ 363 Thus, the offence is not
committed every time a person has consumed an intoxicating liquor or drug having a
narcotic effect and then drives: before one can be convicted of the offence, the
prosecution must prove beyond reasonable doubt that the person was incapable of
having proper control of the vehicle. That is the essence of the prohibition under the
section.
A difference has been drawn between drunkenness and being under the
influence of intoxicating liquor.364 A person may not be drunk and yet be said to be
under the influence of intoxicating liquor.
The offence of driving a motor vehicle under the influence of intoxicating liquor
is one of strict liability.
3. Driving a motor vehicle with excess alcohol

Under section 128 (2) of the Road Traffic Act, it is an offence for a person:
(a) to drive a vehicle;
(b) to occupy the driver‘s seat of a motor vehicle the engine of which is running;
or
363 See Wright v Republic, 7 MLR 292
364 See Wright v Republic, 7 MLR 292 (H.C.)
335
(c) being the holder of a driver‘s licence, occupy the seat in a motor vehicle next
to a holder of a learner‘s licence while the holder of the learner‘s licence is or was
driving the vehicle on a public road after consuming so much alcohol that the
proportion of it in his breath or blood exceeds the 0.08 grams per one hundred
millilitres of blood or 0.08 grams of two hundred and ten litres of breath. The
offence of driving with excessive alcohol is a separate offence from that of driving
under the influence of intoxicating liquor.
Most of the elements of the offence have already been explained. As far as the
evidence is concerned, the evidence of the element of excess alcohol will be derived
solely from the analysis of the specimen of breath, blood or urine. Where a police
officer has reason to believe that the prohibited act under the section has been
committed, he can require a person to undergo a breath test or indeed provide a
sample of urine or blood for analysis. 365 A person is mandated to comply with such
requests by the police officer.366
CHAPTER FIFTEEN
OFFENCES UNDER THE WITCHCRAFT ACT
1.0. INTRODUCTION
365 See section 128 (3) of the Road Traffic Act
366 See section 128 (4) of the Road Traffic Act
336
Towards the end of the month of March 2008, both local and international news
reported that two sisters in Thyolo District had burned to death their two children on
suspicion that they (the children) were practicing witchcraft367.
When Europeans settled in Africa, one thing they found common and disturbing
was Africans‘ deep rooted belief in witchcraft. Much of the Europeans accounts of
African life touched on the many manifestations in the belief in witchcraft. From
trials by ordeal, accusations of witchcraft, the use of charms to identify individuals
who have transgressed customary law, claims of rainmaking powers, and many
others. The belief in witchcraft, therefore, was one of the potential areas of conflict
between Africans and Europeans settlers. The potential conflict was exacerbated by
the brutality that sometimes accompanied the belief in witchcraft and the fact that
colonialism had, amongst its key objectives, the need to convert heathen Africans
from pagan beliefs to Christianity. That evangelisation mission could not therefore
tolerate any other belief but in one God. The colonialists approach in dealing with
matters of witchcraft was premised on the belief that witchcraft does not exists.
It is therefore not surprising that in most of the British colonies was enacted an
ordinance styled the Witchcraft Ordinance whose chief purpose was to deal with trials
by ordeal, naming others to be witches, claiming to have powers of witchcraft or
implicating others in the doing of any illegal thing by using charms or any other
unnatural means. For Malawi, such an ordinance was enacted in 1911 and has
remained unchanged to date. It is a replica of similar ordinances enacted in other
British colonies in Africa.
The Witchcraft Act (as is called now) is being reviewed by the Malawi Law
Commission. Suffice to mention that surprisingly, there is little reported cases on the
Act. There is little or no evidence to suggest that the Act had any effect on the belief
in witchcraft amongst Africans. If at all there is a reduction in the belief amongst
modern Africans, then it is possible that it is all due to Christianity and other
religions, education and general awareness of the natural causes of diseases.
Whatever can be said about the Act today, it is clear that many Malawians, even the
so-called educated or those who are strong followers of Christianity or Islam believe
in witchcraft. As was noted by a certain author:
367 See Sky News at http://news.sky.com and
337
Far from being rendered obsolete by Christianity, Islam, formal education and
urbanisation, witchcraft appears to thrive as a means by which rural and urban
Africans alike confront contemporary problems. In the most compelling
examples of this resurgent interest, witchcraft is shown to be integral to local
struggles over state legitimacy, the support for political parties, the changing
gender relations and so on...368
Further, whilst trial by ordeal is almost gone, people still accuse each other of
witchcraft and others accept to have powers of witchcraft. To go by decided cases,
there are many cases where issues of witchcraft arise whether directly or indirectly.
2.0. TRIAL BY ORDEAL

Section 2 of the Witchcraft Act provides as follows:
Trial by the ordeal of muabvi or other poison, fire, boiling water or by any
ordeal which is likely directly or indirectly to result in the death of or bodily
injury to any person shall and is hereby prohibited.
The section outlaws the use of ordeal. At the centre of this crime is the ordeal. From
the wording of that section, it is clear that an ordeal can take different forms based on
the substances being used but the most common form of ordeal involves the use of
muabvi. The ordeal process requires individuals to go through a process and those
guilty of something would either be harmed or die whilst the innocent will not be
harmed. When muabvi or any other poison is used, suspected witches were asked to
drink muabvi, a concoction made from the ground bark of a tree Erythrophleum
guineense. If you don‘t vomit, you were likely to die. The process would therefore
involve all those suspected of witches drinking the liquid and all those who did not
vomit would die and this would be evidence that they are witches whilst those who
are not witches they would vomit and survive. There is a strong view that the ordeal
was not used in cases of witchcraft alone. It was also used in cases of adultery cases
where the offence was denied. Others suggest that the ordeal was used in respect of
any other crime. In cases where fire was used, a person would be asked to put his
hand on fire or boiling was and if he or she was not injured that proved his or her
368 Harri Englund in “Witchcraft, Modernity and the Person: the Morality of Accumulation
in
Central Malawi” in Crique of Anthropology Vol. 16 No 3 pp 257 – 279 (1996) at p. 257
338
innocence otherwise, then he was guilty of whatever crime he or she was being
accused of.
It should be mentioned that the trial by ordeal not only disturbed Europeans but
also forced them to question the rationality of African justice.
The conduct being targeted by the section was the organisation of the ordeal
trial. So under section 3 (1) of the Witchcraft Act, any person who directed,
controlled or presided at any trial by ordeal was liable to punishment. So too any
person who instigates or conspires to hold a trial by ordeal 369, any person who is
present at or takes part in any trial by ordeal 370 and any person who collects, makes,
sells or assists in the making of any poison used during trial by ordeal. 371 Section 3 is
worded in such a way that any person who is involved in an ordeal either by merely
being present or by positively participating in the process is made liable.
3.0. CHARGING ANOTHER PERSON WITH WITCHCRAFT

The second offence under the Act and which is relevant even in the modern
Malawi is that of charging another person with being a witch. As stated above, whilst
the belief in witchcraft in Malawi persists there will be people accused of being
witches or having caused harm to others through the use of witchcraft or similar
powers. The enabling section is section 4 which reads:
Any person who, otherwise than in laying information before a court, a police
officer, a Chief, or other proper authority, accuses any person with being a
witch or with practicing witchcraft or names or indicates any person as being a
witch or wizard shall be liable to a fine of $25 and to imprisonment for five
years.
The conduct being targeted by the section consists of accusing, naming or indicating
any person of being either a witch, wizard or practicing witchcraft.
4.0. PRETENDING WITCHCRAFT
369 See section 3(2) of the Witchcraft Act
339
Closely related to the offence under section 4 is the offence of pretending
witchcraft under section 6 of the Witchcraft Act. The section reads:
Any person who by his statements or actions represents himself to be a wizard

or witch or as having or exercising the power of witchcraft shall be liable to a
fine of $25 and to imprisonment for five years.
5.0. USING LOT AND CHARMS
CHAPTER FIFTEEN
CORRUPTION AND ABUSE OF OFFICE
CHAPTER SIXTEEN
CORRUPTION AND RELATED OFFENCES
6.0. INTRODUCTION
It is generally accepted corruption poses very serious developmental and
human rights challenges in the whole world. It undermines democracy and
governance, weakens state institutions and retards economic growth as it chases away
direct foreign investment and diverts public resources away from the intended
beneficiaries, the people, into pockets of very few greedy individuals. Further, it
weakens public confidence in governmental institutions that are charged with the duty
to serve the people. These problems are true Malawi as well. But corruption is not a
new phenomenon even though it is one offence that has attracted attention in the
1980s. As early as 1889, corruption was an offence in the English. England saw its
first anti-corruption statutes, the Public Bodies Corrupt Practices Act, in 1889. But
over the years the offence of corruption has changed which has necessitated the
change in the legal response to the problem.
For Malawi, the legal front in the war against corruption is represented by the
Corrupt Practices Act372 (the CPA). The CPA was enacted in 1995 as an Act No. 18 of
340
that year. A year afterwards, it went back to parliament where it was amended in
order to make it in line with regional and international standards on corruption. The
current CPA is the result of that review process. But the CPA is not Malawi‘s first
attempt to deal with corruption. Before the promulgation of the CPA, corruption and
corruption related offences were prosecuted in terms of the Penal Code. Through its
Chapter X, the Penal Code criminalizes official corruption 1, extortion by public
officers2, public officers receiving property to show favour 3, false claims by officials 4
and abuse of office by public officers5. And those provisions found their way into the
Penal Code at the time when the Penal Code was enacted in 1929.
But there are fundamental differences between the Penal Code and the CPA
both in terms of the approach to the problem of corruption and the definition of
offences. Firstly, the Penal Code targets corruption in the public service or what was
called ―official corruption‖6 whist the CPA deals with corruption as it has
transformed over the years to include corruption in the private sector. 7 This change
was necessitated by the realization worldwide that large section of the economy is in
the hands of the private sector and that the private sector plays a very important role
in the distribution of public resources and services. It was further necessitated by the
realization that the private sector is as corrupt as the public sector. The restrictive
1
Section 90 of the Penal Code
2
3
4
5
6
Section 90 of the Penal Code provides:
Any person who–
(a) being employed in the public service, and being charged with the performance of any
duty by virtue of such employment, corruptly solicits, receives, or obtains, or agrees, or
attempts to receive or obtain, any property or benefit of any kind for himself or any
other person on account of anything already done or omitted to be done, or to be
afterwards done or omitted to be done, by him in the discharge of the duties of his
office; or
341
(b) corruptly gives, confers or procures, or promises or offers to give or confer, or to
procure or attempt to procure, to, upon, or for any person employed in the public
service, or to, upon, or for any other person, any property or benefit of any kind on
account of any such act or omission on the part of the person so employed,
shall be guilty of a misdemeanour and shall be liable to imprisonment for three years.
7
See section 26 of the Corrupt Practices Act
definition as the one employed in the Penal Code is therefore difficult to maintain in
the fight against corruption. Secondly, the CPA does not only redefine the offence of
corruption, it also provides for the establishment of the Anti-Corruption Bureau 373 and
the Bureaus functions and powers.374 Apart from providing for offences under its Part
IV, the Corrupt Practices Act also deal with evidentially, investigatory and
enforcement/prosecution matters.
7.0. OFFENCES
Before discussing the offences under the Act, there are a number of terms and
concepts that are common to most of the offences to be discussed under this Chapter.
It is therefore convenient that these terms/concepts should be discussed at the very
beginning. What is corruption?
The CPA does not define the term ―corruption‖ in any of its provisions. It,
however, defines ―corrupt practices‖ in its section 2 as meaning:
(a) the offering, giving, receiving, obtaining or soliciting of any advantage to

influence the action of any public officer or any official or any other
person in the discharge of the duties of that public officer, official or other
person;
(b) influence peddling;

(c) the extortion of any advantage.
373 Chapter II of the Corrupt Practices Act
374 Chapter III of the Corrupt Practices Act
342
The section further defines the term ―corruptly‖ as meaning ―...the doing of, or the
engaging in, any corrupt practice.‖
At the core of corruption, therefore, is an ‗advantage‘ offered, given, received,

obtained or solicited in order to influence the actions of another in the discharge of
the duties of that person, whether a public officer or any other person. The advantage
must be an ‗inducement‘ for the corrupted party to do certain things or to forebear
from doing certain things. And an ‗advantage‘ is defined by the same section 2 as
meaning:
...any benefit, service, enjoyment or gratification, whether direct or indirect,

and includes a payment, whether in cash or in kind, or any rebate, deduction,
concession or loan, and any condition or circumstance that puts one person or
class of persons in a favourable position over another;
It should be observed at the very beginning that the cumulative effect of the
definitions of ―corrupt practice‖ and ―advantage‖ quoted above renders the
definition of corruption in the CPA quite extensive. The type of conduct that is
included captures all the diverse forms that corruption always takes in modern
economic process of production and distribution of goods and resources.
Section 2 of the CPA defines corrupt practices as also including ―influence

peddling.‖ Influence peddling involves ...
2.0.1 Corrupt Practices by or with Public officers

2.0.2 Corrupt use of official powers
2.0.3 Public officers performing public functions corruptly
2.0.4 Misuse of public office
2.0.5 Corruption by or with private bodies 2.0.6
Advantage for giving assistance etc
2.0.7 Possession of unexplained property
The CPA contains a number of offences. We should therefore turn to examine

these.
343
CHAPTER SIXTEEN
INCHOATE OFFENCES
Introduction: as stated earlier, criminal law does not concern itself with mere
thoughts, however heinous or devious they may be, but rather with some forms of
manifestation of the thoughts. And not all forms of manifestation of criminal thoughts
attract criminal liability: criminal law draws a line between those manifestations of
criminal thoughts and those that do not. And under inchoate offence we are concerned
with circumstances in which a person is criminally punished for doing something in
furtherance of a criminal agenda even though the principal offence has not been
344
committed. In many criminal law regimes it is forbidden not only to do certain things
but also attempting or agreeing to do certain things.
Two forms of manifestation of criminal thoughts that attract criminal liability

under Malawian criminal law are agreements between two or more people to commit
a crime and attempting to commit a crime. These offence are referred to as inchoate
offences. The word ―inchoate‖ means ―just began‖375 or ―incipient: in an initial or
early stage.‖376 Inchoate offences are provided for in Division VIII of the Penal Code.
A principal feature which runs through inchoate offences is that they are committed
even if the substantive or principal offence has not been committed. So one will be
made liable even though the attempt has failed, the conspiracy comes to nothing and
the words of incitement are ignored.
Inchoate offences are substantive offences and not rules governing criminal
liability. One would therefore expect to find a discussion of inchoate offences to be
located in the part that discussed specific offences and not of the discussion of general
principles of liability. These offences are being discussed in the part dedicated to
general principles of criminal liability because they constitute general types of
conduct committed in anticipation of each separate crime. There is, of course, no such
thing as attempt or conspiracy in abstract, but only attempt or conspiracy to commit a
specific crime.
Rationale: if one applied the harm principle, it is difficult to justify

criminalizing and punishing for inchoate offences when no harm has been done. The
question then is on what ground can we justify criminalizing attempts or conspiracies
when harm has not been inflicted on anyone? The first justification can be found in
the reformative and preventive theories of punishment. Under these theories the basic
function of criminal law is to prevent people from committing crimes and to reform
them. And a person who, with the necessary mens rea, attempt to commit a crime and
fails is in no better position, in terms of blameworthiness, than a person who
succeeds. Firstly, sometimes factors that may prevent a person to successfully execute
a criminal intention may be far beyond the accused person‘s control as where a person
who places a bomb in a public place but fails to detonate it either because of faulty
wiring system of because the police apprehend him timely. Such a person need to be
375 See Ashworth, A., Principles of Criminal Law, p. 442
376 Smith and Hogan, 7th Edn, p 357
345
prevented from committing the crime again and is in need of reformatory treatment as
the person who successfully detonates the bomb. Secondly, a person who commits a
crime and the one who tries and fails pose the same danger to the society. So even
where no harm has been done as yet, but an attempter and conspirators deserve
criminal punishment. Secondly, criminal law in general and the maintenance of law
and order would have been compromised greatly if the law enforcers were helpless to
intervene when they discovered that some people have agreed to commit a crime or
were attempting to commit a crime but could not act and had to wait until some harm
has been done. More so in terms of the victims, they wouldn‘t be adequately protected
from harm because the police would only have to intervene only after some harm had
occurred to them.
Thirdly, those who try to commit crimes, but fail, are, in terms of moral
culpability, not materially different from the person who tries and succeeds. The
difference in outcome is determined by chance rather than choice and criminal law
should not subordinate itself to the vagaries of fortune by focusing on results rather
than on culpability.
ATTEMPTS
Definition: section 400 of the Penal Code defines the offence of attempt as
follows:
When a person, intending to commit an offence, begins to put his intention into
execution by means adapted to its fulfillment, and manifests his intention by
some overt act, but does not fulfill his intention to such an extent as to commit
the offence, he is deemed to attempt to commit the offence.
According to the section, it is immaterial whether the offender does all that is
necessary for completing commission of the offence or whether fulfillment of
intention is prevented by circumstance independent of his will or whether he desists
of his own motion from the further prosecution of his intention or that by reason of
circumstances not known to offender its impossible in fact to commit the offence.
346
Suffice to mention that the wording of the section is quite not clear if compared
to the relevant statutory provisions of the English law on the point. Section 1 of the
English Criminal Attempts Act 1981 defines an attempt as follows:
If, with intent to commit an offence to which this section applies, a person does
an act which is more than mere preparatory to the commission of the offence,
he is guilty of attempting to commit the offence.
The English definition clearly draws a distinction between actions done and which are
“mere preparatory” and those done in actual execution of the criminal agenda.
Apart from the general offence of attempt in section 400, other offences of
attempt in the criminal statutes include:
• Attempted rape under section 134 of the Penal Code;

• Attempted unnatural offence under section 154 of the Penal Code;
• Attempted murder under section 223 of the Penal Code;
• Attempted suicide under section 229 of the Penal Code;
• Attempt to injure another by explosive substances under section 239 of the
Penal Code
• Attempted robbery under section 302 of the Penal Code;

• Attempts at extortion by threat under section 305 of the Penal Code;
• Attempted arson under section 338 of the Penal Code;
• Attempt to set fire to crops under section 340;
• Attempted to destroy a vessel under section 342 of the Penal Code;
• Attempt to destroy any property by explosives under section 345 of the Penal
Code.
The mental element: Mental element assumes paramount importance in

attempts. And as was stated in the English case of Whybrow377 intent is a ―principal
ingredient of the crime‖ of attempt. In section 400 of the Penal Code, the mental
element of an offence of attempt is described as an intention to commit an offence.
An intention to commit an offence forms the essence of the offence of attempt. Hence
377 (1951) 35 Cr App Rep 141
347
the offence of attempted murder involves doing certain things with a specific
intention to commit murder; for the offence of attempted theft, there is a need to
establish an intention to commit the offence of theft; etc. So whether a particular act
amounts to an attempt to commit offence X will often depend on the intent with
which it was done. This is more important because most of the attempts amount to
commission of other principal offences. For instance, X sets fire to a house knowing
that there are people sleeping in the house. The people escape unharmed. There are
two possible charges X may face. Arson or attempted murder. The offence of arson
has been committed and is a principal offence. But before X is convicted of the
offence of attempted murder, it must be established that he acted with an intention to
murder.
Hence, although on a charge of murder proof of an intention to cause grievous

bodily harm should suffice to establish mens rea, for the offence of murder, on a
charge of attempted murder it must be established that the accused person acted with
the intent of causing death.
The mental element specified by section 400 is an ―intention to commit an

offence.‖ It has been said that intention in the context of an attempt to commit an
offence should be given the same normal ―purposive meaning‖ i.e., doing something
for the purpose of bringing about a particular result or doing the prohibited act. So
before a person can be convicted of the offence of attempted rape it must be
established that he attempted to ―have unlawful carnal knowledge of a woman or
girl without her consent…‖; for the offence of attempted robbery it must be establish
that the accused person attempted to ―steal 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 in order to obtain or retain the thing stolen….‖ Crucial
therefore to charging a person of attempt is to know all the elements of the offence
and to establish the mental element of the accused person with regard to the different
elements of the offence.
The acts which may amount to the actus reus of the offence of attempt to
commit an offence derive their significance from the accused person‘s intention.
Hence, acts may be innocent but when added to the accused person‘s intention may
constitute a crime. For instance, if X lights a cigarette lighter beside some curtains the
question whether X is guilty of attempted arson depends on his intention.
348
What if reckless is a sufficient mens rea for the complete offence can it be
sufficient for the offence of attempt to commit the principal offence? For instance, for
the offence of rape, the mens rea for the offence can be take the form of recklessness
as to whether the woman or girl consenting or not? In this case, if a person attempts to
have sexual intercourse with a woman and is reckless whether the woman consents or
not then he will be guilty of the offence of attempted rape. Where recklessness will
not suffice for the complete offence it will not suffice for the attempt. Hence if X
attempts to receive stolen goods being reckless whether they are stolen he is not guilty
of an attempt to handle stolen goods because the full offence of handling requires
knowledge or belief that the goods are stolen goods. What is a person has acted with a
conditional intent? A person is said to have conditional intent where he intends to
commit an offence but only if a particular condition is satisfied. For example, D is
caught going through the coat pockets in a sports changing room. His intention is to
steal but only if he comes across items he thinks worth stealing. The rule is he can be
guilty of attempt provided he has a definite intention to steal if the condition is
satisfied. However, care must be taken in the formulation of the charge. If he is
charged with attempting to steal specified (but worthless and/ or rejected) items
actually in the pockets (e.g. a handkerchief or comb), the charge will fail because the
prosecution will be unable to prove that he formed a definite intention to steal those
items. The way round the difficulty is to charge him with attempting to steal from
coat pockets without specifying any particular items. There can be no doubt that he
had formed a definite intention to steal from those pockets subject to finding
something worth stealing (e.g. money).
The prohibited conduct: section 400 of the Penal Code describes the prohibited
conduct as consisting of beginning to put one‘s criminal intention into execution by
means adapted to the fulfillment of the intention and manifestation of one‘s intention
―by some overt act.‖ As to the actual particulars of the conduct, it all depends on the
attempted offence. The section further specifies that it is immaterial whether the
offender does all that is necessary for completing the commission of the offence or
whether fulfillment of intention is prevented by circumstance independent of his will
or whether he desists of his own motion from the further prosecution of his intention
or that by reason of circumstances not known to offender its impossible in fact to
commit the offence.
349
The definition of the prohibited conduct in section 400 does not expressly
exclude actions which are merely preparatory and expressly states that it immaterial
whether the offender does all that is necessary for completing the commission of the
offence. Consider the case of a person who, intending to rob a bank, starts to watch
movies of bank robberies in order to know tactics of robbing a bank, is that person
attempting to rob a bank? Despite the fact that section 400 does not draw a difference
between acts that are merely preparatory and those that can be said to involve actual
attempting to commit an offence, courts of law in Malawi have struggled to define
when one can be said to have attempted to commit an offence. In effect, courts of law
in Malawi have approached the prohibited conduct of the offence of attempt as the
doing of an act, which is more than merely preparatory to the commission of the
offence the accused intends to commit, and which can be said that amounts to trying
to commit the offence. They have further held that, generally speaking, the actus reus
of an offence of attempt is complete when the accused takes substantial steps (though
not all) he can to commit the crime but because of one obstacle or another he is
unable to complete the commission of the offence.
In the High Court case of Republic v. Saini378 the accused was charged with the
offence of attempted suicide. The facts of the case are that, the accused person, whilst
drunk, went to his house and picked some pieces of wire. When asked by his wife
what he wanted to do with the pieces of wire he said that he wanted to hang himself.
His wife went and told other people who came and took the pieces of wire from him.
The matter was reported to police. When considering the propriety of his conviction
on his own plea of guilty, Chatsika, Ag. C.J said the following in terms of the
prohibited conduct of the offence of attempted suicide: ―for an act to be considered
as an attempt, the act done must be immediately and not merely remotely connected
with the commission of the offence. In other words, it must be something more than
mere preparation for the commission of the offence.‖ The same position was taken by
378 (HC) 7 MLR 303
350
the High Court in Republic v. Chisambi379 and Steel Mining & Engineering Ltd. v.
Republic.380
Attempt to commit the impossible: consider the case of a woman who takes
substance which he or she believes to be poisonous with the intention of committing
suicide but unknown to him or her the substance is not poisonous. Is the person guilty
of attempted suicide? Section 400 of the Penal Code provides that impossibility is
immaterial to a charge of attempt. In Chimwalira v Republic …Our criminal law
takes a substantive approach to the question and concentrates on the mental element
of the accused person. As long as the person believed that he of she was taking
poisonous substance with the intention of committing suicide he or she will be guilty
of attempted suicide.
There are different forms of impossibilities, and it is yet to be decided by our

courts whether all of them are punishable. Firstly, one must distinguish between
relative and absolute impossibility. In the first, a person uses a real but empty pistol
and in the later he uses a toy pistol but which he believes to be real. In both cases,
even though the person tried to shoot it was impossible to kill the intended victim
with the difference that in the first case, it was impossible relative to certain factors
whilst in the second it was absolutely impossible because it was a toy in the first
place. There is no difference as far as the culpability of the person and despite the
impossibility that person is in no better position than a person who carried a real and
loaded gun. It is hoped that our courts of law will follow the same approach and hold
such a person criminally liable.
Secondly, one may distinguish between impossibility in respect of the subject

and the mean. An impossibility is said to relate to a subject when it resides in the
379 (HC) 10 MLR 164. In the case, Unyolo Ag.J., had the following to say:
“It is to be observed that mere intention to commit an offence does not constitute an
attempt. It is trite law that in order to constitute an attempt the act done must be something
more than mere preparation – the act done must be immediately, and not merely remotely,
connected with the commission of the offence. The accused must manifest his intention by
some overt act.” (At p. 165)
380 (HC) 12 MLR 19
351
quality of the person said to attempt to commit an offence. For instance, under our
laws, a male person under the age of 13 is said to be incapable of having carnal
knowledge of a woman. What would happen if a person, believing to be under the age
of 13 when actually he is the other way round, tries to rape a woman, is that person
guilty of attempted rape? In my opinion, an attempt to commit a crime in these
circumstances should be made equally punishable.
On the other hand, an impossibility relates to an abject when it cant be

committed because of some factor in the object of the crime. For instance, a person
shoots a person when, not known to him, that person is already dead and hence cant
be killed. Again, considering the rationale for punishing attempts generally, it
shouldn‘t be hard to punish such a person.
Voluntary withdrawal: what if the accused person withdraws? To begin with,

reason supports the position that there is no punishable attempt if a person voluntarily
withdraws from his criminal plan of action before his actions can be said to be more
than preparatory. However, where the actions of the accused person go beyond the
preparatory stage even voluntary withdrawal would not be a defense. This is the
approach of section 400 of the Penal Code that provides that it is immaterial whether
the accused person desists of his own motion from the further prosecution of his
intention.
CONSPIRACY
Introduction: conspiracy is the second inchoate offence under Division VIII of
the Penal Code. It is provided for under sections 404 to 406 of the Penal Code. The
relevant sections in the Penal Code do not define what a conspiracy is: they merely
provide guidelines as to how to deal with criminal conspirators. One therefore has to
rely on a great deal of common law on the relevant principles and rules. In the
landmark decision of the Supreme Court of Appeal in The Director of Public
Prosecution v Dr Hastings Kamuzu Banda and others381 the court accepted the
following definition of a conspiracy:
"A conspiracy involves an agreement express or implied. A conspiratorial

agreement is not a contract, not legally binding, because it is unlawful. But as an
381 MSCA Criminal Appeal No. 21 of 1995
352
agreement it has its three stages, namely (1) making or formation (2)
performance or implementation (3) discharge or termination. When a
conspiratorial agreement has been made, the offence of conspiracy is complete,
it has been committed and the conspirators can be prosecuted even though no
performance has taken place…But the fact that the offence of conspiracy is
complete at that stage does not mean that the conspiratorial agreement is
finished with. It is not dead. If it is being performed, it is very much alive. So
long as the performance continues, it is operating, it is being carried out by the
conspirators, and it is governing or at any rate influencing their conduct. The
conspiratorial agreement continues in operation and therefore in existence until
it is discharged (terminated) by completion of its performance or by
abandonment or frustration or however it may be."
This definition of a conspiracy is narrow: there can be a conspiracy only if there

is a definite agreement between at least two people to commit a crime. The mere fact
that two or more people have a common intention does not mean that there is a
conspiracy between them. There must be a subjective agreement. This means that if a
person pretends to agree with another to commit a crime when in actual fact he wants
to report the other to the police there is no subjective agreement between them and
there is no conspiracy. The other person will be charged with attempt to commit a
felony. An agreement is therefore the basic element in the offence of a conspiracy.
And if the parties are at a negotiation stage, an offence of conspiracy will not be
committed. To say that the parties have reached an agreement requires that there
must be a consensus or what courts of law commonly refer to as a ―meeting of the
minds.‖
The definition of a conspiracy quoted above also make it clear that although
conspiracy is committed at the moment the parties reach an agreement, it should be
stressed that it is a continuing offence with the result that as the agreement still stands
other people may actually join at a latter time and will still be held liable for the
offence of conspiracy. Courts have held conspiracies to have been committed ever
where the parties agree in principle but defer the agreement on the specific details
later on.
353
There is no need that the parties to a conspiracy should physically meet. A
conspiracy is reached as long as there is a mutual understanding of what is to be done.
In the same way, if two or more people join an organization whose agreed purpose it
to commit a crime or crimes, they can be convicted of conspiracy. They will not be
held to say that they have never met or they actually did not know the existence of the
other. What this means is that any person who joins such an organization fully aware
of its unlawful aims, or remains a member after becoming aware of the criminal
purposes of the organization, commits a conspiracy.
Under sections 404 to 406 of the Penal Code, an agreement will be considered
as a conspiracy of the subject matter of the conspiracy is either of the following:
(a) to commit a felony or misdemeanor;
(b) To do any act in any part of the world which if done in Malawi would be a
felony or misdemeanor and it is an offence under the laws in force in the
place where it is proposed to be done;
(c) To prevent or defeat the execution or enforcement of any Act;
(d) To cause an injury to the person or reputation of any person, or to depreciate

the value of any property of any person;
(e) To prevent or obstruct the free and lawful disposition of any property by the
owner thereof for its fair value;
(f) To injure any person in his trade or profession;
(g) To prevent or obstruct, by means of any act or acts which if done by any
individual person would constitute an offence on his part, the free and lawful
exercise by any person of his trade, profession or occupation;
(h) To effect any unlawful purpose;
(i) To effect any lawful purpose by any unlawful mean.
Prohibited conduct: the agreement between the parties constitutes the actus
reus of conspiracy. It is not necessary that the parties should have agreed upon the
ways and means of carrying out their criminal plans as long as the parties must not be
354
still negotiating towards agreement. As stated earlier, common intention on the part of
two or more people is not sufficient: there must be an agreement to commit a crime in
question for conspiracy is not merely a concurrence of will but a concurrence
resulting from an agreement.
Since a conspiracy requires an agreement, there must be two or more people

involved. It is not necessary to charge all of the people involved and it is possible to
charge a person with conspiracy and the particulars of the charge specifies that the
accused person conspired with persons unknown. And where two people are charged
with conspiracy and the particulars of the offence do not indicate that any other
person was involved, the acquittal of one will automatically lead to the collapse of the
charge since the other will have to be acquitted as well.382
Can there be a conspiracy between a one-man company and the one man who
controls it? This question arose for consideration in the English case of R v
McDonnell2 and was answered in the negative. The court explained its position by
stating that ―where the sole responsible person in the company in the defendant
himself it would not be right to say that there were two person or two minds.‖ The
reasoning of the court in the McDonnell case is supported by common sense and it is
hoped that Malawian courts will follow.
Impossibility is not a defense. So if two or more people agree to kill X who, not
known to all the parties, died some time before the time of their agreement, they will
still be liable for the offence of conspiracy. What if the parties‘ agreement is
conditional? Two scenarios should be examined here. In the first, A and B agree to go
and rob C of his money but if there will not be anyone around. In the second, A and B
agree to go and ask C to borrow them money and agree to rob him if he refuses. In the
first case, the parties will be heard liable for conspiracy. The reason is that they have
agreed to commit an offence, i.e., to rob C.
In the second situation, there is no conspiracy because what the parties have
agreed to do, i.e., to borrow money from C, is not a crime. Similarly if two people
agree to rob C and agree that, if there is much resistance from C they will kill him,
they can be convicted of conspiracy to rob and not murder. In a charge of conspiracy
382 See Republic v Mkangama and Likungwa 11 MLR
184 at 185 2 [1966] 1 QB 233; [1966] 1 All ER 193.
355
it is always necessary to specify what crime has been agreed upon. (See Rep v.
Mandala (HC) 5 ALR Mal. 67)
Mental element: the basic fault requirement for conspiracy is an intention to

reach an agreement or be part of an agreement to commit a crime. In this way it has
been said that the requirement of mens rea has two basic elements: the first is that an
accused person and at least one other person, should intend to commit a criminal
offence or know that a criminal offence will be committed as a result of their
agreement. Second, the accused person and at least one other person should be aware
that they are part of an agreement to commit an offence. As was stated by Mtegha J in
Rep v. Mkangama and another383 that:
―A conspiracy is an agreement between two or more people to do an unlawful

act or to do a lawful act by an unlawful means. It involves an element of mens
rea, and therefore the prosecution must prove not only an agreement but also an
intention on the part of each conspirator to carry out an unlawful act.‖384
What if the parties do not know that what they have agreed upon to do is a
crime: will they be held liable for conspiracy? Although our courts have not
considered the question, considering the nature of the offence of conspiracy, the
parties have to have knowledge of the unlawfulness of the act. The principle that
ignorance of the law is not a defense is inapplicable here because . And hence, the
parties will be held liable. What if A and B agree to help C to commit an offence? C
is however not party to their agreement. Courts of law in England deciding on almost
similar situations have held that there will not be a conspiracy to aid and abet in the
commission of an offence.
Conspiracy to commit the impossible: unlike for the offence of attempt, the
Penal Code is silent in the effect of impossibility on the offence of conspiracy. But
considering that the offence of conspiracy essentially involves as agreement,
impossibility cannot be a defense to a charge of conspiracy and all the principles and
rules pertaining to impossibility and attempts will apply.
383 II MLR 184
384 At pp. 185 – 186
356
INCITEMENT AND RELATED OFFENCES
Introduction: at common law there are three types of inchoate offence:

attempts, conspiracy and incitement. At common law, it is an offence to incite others
to commit an offence. Our criminal law approaches the matter quite differently and,
whilst treats conspiracies and attempts as related offences, does not include
incitement in their group. There is no common offence of incitement but three
specific offences of incitement in the Penal Code. They are provided in sections 41,
124 and 125. Section 41 provides as follows:
41. Any persons who advisedly attempt to effect any of the following purposes,
that is to say:
(a) to seduce any person serving in the armed forces or the police of the
Republic from his duty and allegiance to the President; or
(b) To incite any such person to commit an act of mutiny or any traitorous or
mutinous acts; or
(c) To incite any such persons to make or endeavor to make a mutinous

assembly,
Shall be guilty of a felony, and shall be liable to imprisonment for life.
(1) Any person who, whether in writing or by words or by his behavior or

otherwise –
(a) Solicits or incites any other person to fail to comply with or to contravene
any law in force in Malawi or in any part thereof; or
(b) Indicates or implies to any person that it would be incumbent or desirable to

fail to comply with or to contravene any such law, shall be liable to
imprisonment for 5 years.
(2) It shall be no defense to a charge under this section that the solicitation,
incitement, indication, or implication, as the case may be, neither has hard nor
could have had any effect.
357
And lastly, section 125 provides as follows:
Any person who, whether in writing or by words or by his behavior or

otherwise, solicits or incites –
(a) any person employed in the public service; (b) a chief or any person in the
service of a chief; to fail to carry out any of his duties as such shall be liable to
imprisonment for 5 years.
These sections provide for the offence of incitement and other related offences. The
common feature of the offences in these sections is that they involve influencing the
mind of another person so as to make him to do something. This may be done either
through encouragements, suggestion, proposal, request, exhortation, gesture,
argument, persuasion, inducement or general arousal of cupidity.
Prohibited Conduct: incitement requires persuasion or encouragement or even

threats or other pressure to commit an offence which may be implied or express. The
persuasion etc must come to the notice of the person being incited though it need be
established that it was actually effective. It is possible for one to be charged with
attempt to incite. This can be the case where, for instance, the incitement does not
reach the notice of the intended person. It is possible to hold one guilty of incitement
even where the incitement was never targeted at a specific individual.
Mental Element: as to the mental element, it must be established that the

accused person had a purposive intention that the offence incited or a sufficient part
of it should be committed. This requires knowledge on the part of the accused person
(or should turn a blind eye) to all the elements of the act incited. It is not necessary to
show that the accused person knew that the conduct incited is actually criminal. So
for the offence under section 41 of the Penal Code, it must be established that the
accused person acted with the intention that any person serving in the armed forces or
the police force should do such acts which amounts to mutiny. This requires
knowledge on the part of the accused person of the nature of the act incited i.e., that it
amounts to mutiny.
Another additional requirement is that the accused person should know that the
persons incited will act with such mens rea as is required for the offence. Hence if D
358
believes that the person will do the act without the mens rea for the crime in question,
then he intends to commit that crime through an innocent agent, if it is capable of
being so committed, and may become guilty as the principal or an abettor if the actus
reus is completed, but he is not guilty of incitement. Although D must intend E to act
with the mens rea of the crime incited, it is not necessary that he should have the
mens rea of that crime.
359

Bande

Uploaded by

Copyright:

Available Formats

You might also like

Bande

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Bande

Uploaded by

Copyright:

Available Formats

CONTENTS

PART ONE INTRODUCTORY TOPICS

PART TWO PRINCIPLES OF CRIMINAL LIABILITY

PART THREE SPECIFIC CRIMES

This book is intended to be used by students of Malawian criminal law, legal

In addition, this book intends to provide a comprehensive account of the

Malawi‘s penal statutes.

Lewis Chezan Bande

This book deals with Malawian criminal law. Providing a comprehensive

PART ONE – INTRODUCTORY TOPICS

CHAPTER 1 THE NATURE OF CRIMINAL LAW

CHAPTER 3 THE DEFINITION OF A CRIME AND CLASSIFICATION OF

1 Act No. 20 of 1994

CHAPTER 6 INTERPRETING CRIMINAL STATUTES

THE NATURE OF CRIMINAL LAW

These questions are of increasing importance to Malawi today for a number of

1.1. CRIMINAL LAW AS A BRANCH OF PUBLIC LAW

Conversely, private law regulates the relationships between individuals as

1.2. CRIMINAL LAW AS SUBSTANTIVE LAW

―criminal‖ and ―law.‖

In 1994 Malawi adopted a new Constitution 1 that established in Malawi a

2 Sections 5 and of the Constitution provides as follows:

Constitution shall, to the extent of such inconsistency, be invalid.

3 Section 12 (i) of the Constitution provides as follows:

4 Section 12 (ii) of the Constitution read:

responsibilities to the people of Malawi.

5 Section 12 (iii) of the Constitution reads:

transparent Government and informed democratic choice.

Considering the importance of the Constitution to Malawi‘s legal system, one is

6 Section 12 (iv) of the Constitution reads:

they are entitled to vote.

7 Section 12 (vi) of the Constitution provides as follows:

law and no institution or person shall stand above the law.

8 Section 12 (v) of the Constitution provides as follows:

(b) No act should be criminally prohibited where its incidence may be

Underlying a formulation of principle such as this is a deeper and principled

This proposal is linked to the quest for a constitutionally endorsed purpose of

HISTORICAL DEVELOPMENT OF MALAWIAN CRIMINAL LAW

2.1. THE PRE-COLONIAL PERIOD

2.2. THE COLONIAL PERIOD

The declaration of a territory as a protectorate meant a complete overhaul of the

The 1889 Order-in-Council was subsequently replaced by the British Central

Ordinance or Ordinances passed in and for the Protectorate.

morality or inconsistent with any Order in Council or Ordinance, or any Regulation or

Rule made under any Order in Council or Ordinance

technicalities of procedure and without undue delay.

10 Section 12 (1) of the B.C.A. 1902

11 Section 12 (3) of the B.C.A. 1902

12 Section 12 (1) of the B.C.A. 1902

13 Section 12 (3) of the B.C.A. 1902

14 Section 3 of the Subordinate Courts Ordinance, 1906

15 Section 6 of the Subordinate Courts Act

17 Section 4 of the Subordinate Courts Ordinance, 1906

19 Section 9 of the Subordinate Courts Ordinance

20 Section 11 of the Subordinate Courts Ordinance

21 Article II of the Nyasaland 1907

22 Article X of the Nyasaland, 1907

Such civil and criminal jurisdiction shall, so far as circumstances admit, be