UNIVERSITY OF RWANDA SCHOOL OF LAW GENERAL CRIMINAL LAW. Study guide for students. Lecturer: Mr JP MAZIMPAKA

Transcription

1 UNIVERSITY OF RWANDA SCHOOL OF LAW GENERAL CRIMINAL LAW Study guide for students Lecturer: Academic year:

2 i TABLE OF CONTENTS INTRODUCTION... 1 CHAPTER 1. CONSTITUTIONAL ASPECTS OF CRIMINAL LAW... 3 CHAPTER 2. THE PRINCIPLE OF LEGALITY CHAPTER 3. THE JURISDICTION OF RWANDAN CRIMINAL LAW 14 CHAPTER 4. CRIMINAL LIABILITY CHAPTER 5. INTOXICATION CHAPTER 6. PROVOCATION AND EMOTIONAL STRESS CHAPTER 7. CRIMINAL LIABILITY OF CORPORATE BODIES CHAPTER 8. CRIMINAL PARTICIPATION CHAPTER 9. INCHOATE OFFENCES: ATTEMPT, CONSPIRACY AND INCITEMENT CHAPTER 10. SENTENCING CHAPTER 11. CAUSES OF SUSPENSION AND EXTINCTION OF SENTENCES. 121 CHAPTER 12. CAUSES OF EXTINCTION OF CONVICTION CHAPTER 13. PRESCRIPTION i

3 1 INTRODUCTION You are welcome to the study of General Criminal Law (generally referred to as in countries with a Common Law tradition). We trust that you will enjoy your study of this course. Criminal Law is one of the most interesting subjects to study. Criminal Law is a branch of public law that prohibits certain forms of conduct and imposes penalties on those who engage in that prohibited behaviour. This course introduces you to those rules which may apply to any crime generally, for example, the meaning of such concepts as intention or negligence, or the rules as to when an accused person may rely on defences such as insanity, intoxication, provocation, or selfdefence. The specific elements of each individual crime are studied in the course entitled Special Criminal Law (better called Specific Crimes in most, if not all, Englishspeaking countries). These crimes include, for example, murder and involuntary homicide. 1 In this course, though, the above two crimes (murder and involuntary homicide), are referred to at times as examples, to illustrate the general principles. The particular reason for this is that the distinguishing factors between these two crimes are intention and negligence. Accordingly, these two crimes are best examples which will be used to illustrate the difference between crimes requiring intention, and those crimes for which negligence is required. To follow the discussion of the general principles from the beginning, it is therefore necessary to know what the definitions of these two crimes are. Murder is the intentional causing of the death of another human being. Involuntary homicide is the negligent causing of the death of another human being. The only deference between these two crimes is, therefore, that, whereas intention is required for the one, negligence is required for the other. Students of Criminal Law are sometimes inclined to underestimate the subject, because it deals with human actions which are concrete and often spectacular, such as stealing, 1 In English law, involuntary homicide is called manslaughter. In South African Law, it is called culpable homicide.

4 2 killing, raping, kidnapping, and destroying. I wish to warn you against underestimating the subject. Some of the concepts of Criminal Law are among the most difficult in the field of law. Try to understand the principles of Criminal Law, such as causation, private defence, intention or negligence, so that you can apply them to concrete cases. Merely memorizing page upon page of the study guide without understanding the principles underlying the topics discussed, is of little use. In other words, you are warned not to attempt to read this study guide like a novel, but to treat it as a course of study and conscientiously to imbibe the meaning of each part-reading and re-reading one chapter before proceeding to the next. Otherwise the later parts will tend to be misunderstood.

5 3 CHAPTER 1 CONSTITUTIONAL ASPECTS OF CRIMINAL LAW 1.1. Introduction Criminal Law is the branch of public law that most obviously affects human rights. Imprisonment entails loss of liberty. Death penalty entails the taking of one s life. Fine entails loss of one s property. Thus, before you proceed to the study of the actual rules of Criminal Law, it is important that you understand the relationships between Criminal Law and the Constitution. Study this chapter carefully; you will be glad you did! 1.2. Constitutional, philosophical and theoretical underpinnings of criminal liability and punishment in general Introduction Attention is devoted in this first section of this chapter to a discussion of certain topics about which you ought to have knowledge, before you start to study the rules of Criminal Law themselves. A sentence usually profoundly infringes upon a person s basic human rights, such as his right to liberty. 2 In a society which values human rights, this infringement calls out to be justified. Before embarking on the discussion of the different theories that have been put forward to justify criminal punishment, however, it is important to understand the concept of limitation of rights The limitation clause : rights are not absolute The Constitution recognises that fundamental rights are not absolute. 3 Under article 41 of the Constitution, it is recognised that the rights of others and the legitimate needs of the society may justify the imposition of restrictions on the exercise of fundamental rights. 4 2 Art 24 (1) Constitution: The person s liberty is guaranteed by the State. This right is generally infringed by imprisonment for any crime. 3 Woolman et al (eds) Constitutional Law See article 41 of the Constitution of the Republic of Rwanda of 2003 as revised in 2015.

6 4 Nevertheless, not all limitations are acceptable. In order for a limitation to a fundamental right to be justifiable, a number of requirements must be satisfied. These requirements are set out in art 41 of the Constitution, which provides that: [I]n exercising rights and freedoms, everyone is subject only to limitations provided for by the law aimed at ensuring recognition and respect of other people s rights and freedoms, as well as public morals, public order and social welfare which generally characterise a democratic society. In order to better understand the criteria set out in the above constitutional provision in assessing whether a limitation of a particular right is justifiable it may be useful to compare the said provision with the provision of section 36 of the Constitution of South Africa, which provides as follows: The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including: 1. the nature of the right; 2. the importance of the purpose of the limitation; 3. the nature and extent of the limitation; 4. the relation between the limitation and its purpose; and 5. less restrictive means to achieve the purpose. Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights. You are referred to S v Makwanyane, 5 for a practical exercise on how the above provision can be relevant in Criminal Law. Write a 5-page essay under the following theme: S v Makwanyane: The Unconstitutionality of the Death Penalty. Read the Makwanyane judgement as well as the following document: De Wall J et al, The Bill of Rights Handbook (Juta, 2001), pp This will be your first assignment and will contribute 15% to your final mark in this course. In summarising chapter 7 (pp ) of the Bill of Rights Handbook, keep in mind that you are only writing on the Constitutionality of the Death Penalty ; leave aside any unnecessary content of the document and adjust your summary mutatis mutandis. 5 S v Makwanyane and Another (CCT3/94) [1995] ZACC 3.

7 5 After you have read the judgement and the chapter in the above-mentioned book, you will understand that although human rights are not absolute, a law that infringes on human rights must do so for a legitimate and important purpose. This leads us to where we started: why do we punish (which infringes on a number of human rights) people who commit crimes? The answers that were given to this question have been grouped under what is known as theories of punishment Theories of punishment: the justifications of criminal punishment (the purpose of Criminal Law) The theories that have been put forward to justify why people are subjected to criminal punishment are the following: The theory of retribution Utilitarian theories of punishment The theory of prevention The theory of deterrence o Theory of individual deterrence o Theory of general deterrence The theory of reformation The combination theory The retributive theory Notion There are two approaches to the retributive theory of criminal punishment. First, criminal punishment is seen as a form of institutionalised vengeance. In other words criminal punishment is a form of organized retaliation and an expression of vindictiveness. It is important to note, however, that vengeance as a justification of criminal punishment has been rejected by a number of scholars and courts. Instead of being an expression of organised retaliation (vengeance), criminal punishment is rather seen as X s just desert. Retribution restores the legal balance that has been disturbed by the commission of the crime. Punishment is the payment of the account which, because of the commission of the crime, X owes to society. This simple truth can be explained as

8 6 follows in some detail. The legal order offers every member of society a certain advantage, while at the same time burdening him with an obligation. The advantage is that the law protects him that it prohibits other people from infringing upon his basic rights or interests, such as his life, physical integrity and property. However, this advantage can exist only as long as each member of society fulfils his obligation, which consists in refraining from infringing upon other members rights. In other words, there is reciprocity between the advantage and the obligation or duty. The advantage has a price, namely the duty to refrain from injuring others interests. If everybody exercises the required selfrestraint and refrains from injuring others interests, the two scales of justice are evenly balanced; the advantages and disadvantages are evenly distributed. However, if a person refrains from exercising the required self-control and commits an act harming or injuring another person s interests, in circumstances in which he could have acted lawfully, the scales of justice are no longer in balance. X (the wrongdoer) renounces a duty which others take upon themselves, and in so doing he acquires an unjustifiable advantage over those who respect their duties to society. He becomes a free rider. According to the theory of retribution, in its modern sense, X now has a debt which he owes to society. By being given a punishment and by serving such punishment he pays the debt he owes to society. In this way, the score is made even again. 6 Retribution is therefore the restoring of the legal balance which has been disturbed by the commission of the crime. What both meanings of retribution have in common is that retributive theory of crime does not seek to justify punishment with reference to some future benefit which may be achieved through punishment, such as deterrence or prevention Degree of punishment must be in proportion to the degree of harm According to the retributive theory (from both perspectives of vengeance and just desert), the extent of the punishment must be proportionate to the extent of the harm done or of the violation of the law. The less the harm, the less the punishment ought to be. This idea is captured in the following aphorism: "Let the punishment fit the crime." The idea is 6 See Snyman CR Criminal Law 5thed (2008) 11.

9 7 also captured in the bible, Deuteronomy 19:17-21, 7 and Exodus 21:23-21:27, 8 which includes the punishments of "life for life, eye for eye, tooth for tooth, hand for hand, foot for foot." Utilitarian theories of punishment Retributivism is contrasted with utilitarianism. For utilitarians, punishment is forwardlooking, justified by a purported ability to achieve future social benefits, such as crime reduction. For retributionists, punishment is backward-looking, justified by the crime that has been committed and carried out to atone for the damage already done The preventive theory (incapacitation) According to the preventive theory of punishment, the purpose of punishment is the prevention of crime. The sentences of capital punishment, life imprisonment, the forfeiture of, for example, a driver s license, are mainly aimed at preventing the offender from committing the crime again. 9 This theory is closely linked to the State s function of protecting the society and ensuring the safety of the people and their properties. Of course, because almost all prisoners come home, their incapacitation is always temporary. 10 Only capital punishment and life imprisonment serve the purpose of prevention in a permanent way The theory of deterrence Here, a distinction is drawn between individual and general deterrence. Individual deterrence means that the offender as an individual is deterred from the commission of 7 Deuteronomy 19:17: the two men involved in the dispute must stand in the presence of the LORD before the priests and the judges who are in office at the time. 18 The judges must make a thorough investigation, and if the witness proves to be a liar, giving false testimony against his brother, 19 then do to him as he intended to do to his brother. You must purge the evil from among you. 20 The rest of the people will hear of this and be afraid, and never again will such an evil thing be done among you. 21Show no pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot. 8 Exodus 21: 23: Ifany harm follows, then you shall give life for life, 24 eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, stripe for stripe. 26 When a slave-owner strikes the eye of a male or female slave, destroying it, the owner shall let the slave go, a free person, to compensate for the eye. 27 If the owner knocks out a tooth of a male or female slave, the slave shall be let go, a free person, to compensate for the tooth. 9 As it will become clear later, however, capital punishment and life imprisonment may also serve the purpose of deterrence. 10 J Samaha Criminal Law 10th ed. (Library of Congress Wadsworth 2011), p. 26.

10 8 further crimes, and general deterrence means that the whole community is deterred from committing crimes. A. Individual deterrence The idea at the root of individual deterrence is to teach the individual person convicted of a crime a lesson which will deter him from committing crimes in the future. B. General deterrence According to the theory of general deterrence, the emphasis is not on the individual offender, who, by having instilled fear in him, will supposedly be deterred from again committing crime. The emphasis here is on the effect of punishment on society in general: the purpose of punishment is to deter society as a whole from committing crime. The belief is that the imposition of punishment sends out a message to society that crime will be punished and that, as a result of this message, members of society will fear that if they transgress the law they will be punished, and that this fear will result in their refraining from engaging in criminal conduct The theory of reformation (rehabilitation) The reformative theory is of fairly recent origin. Its premise is that the purpose of punishment is to reform the offender as a person, so that he may become a normal law-abiding member of the community once again. Here, the emphasis is not on the crime itself, the harm caused or the deterrent effect which punishment may have, but on the person and personality of the offender. According to this theory, an offender commits a crime because of some personality defect, or because of psychological factors stemming from his background, such as unhappy or broken parental home, a disadvantaged environment or bad influences from friends. The recent growth of sociological and psychological sciences has largely contributed to the creation of this theory The combination theory In practice, courts do not reject any one of the theories set out above outright and, on the other hand, they do not accept any single theory as being the only correct one to the

11 9 exclusion of all the others. They apply a combination of all the above-mentioned theories, and for this reason one may speak of a combination theory. For example, life imprisonment reduces the crime rate by deterring potential economically motivated criminals and incapacitating violent criminals Other constitutional aspects of Criminal Law The requirement of proportionality between sentence and crime Relationships between the Constitution and the Criminal Law are not only limited to the question as to the justification of punishment in general (theories of punishment discussed in point 2), but also to the question as to what punishment ought to be imposed in each individual case. For example, would a life imprisonment sentence be legitimate for an offence of riding a motorbike without a helmet? Would a life imprisonment sentence also be constitutionally valid for driving a car while drunk? Excessively disproportionate sentences should in principle be unconstitutional because they are not justified under the limitation clause: they are not the less restrictive means to achieve the purpose. Deterrence can be achieved by imposing a fine, or probably a 7-day imprisonment! Discriminatory sentences Laws that impose heavier sentences to some categories of people for the same offence are discriminatory and, accordingly, unconstitutional. For example, a law that imposed heavier sentences to women than men in case of adultery was declared unconstitutional and the Supreme ordered that equal punishment be imposed to women as to men Trumbull 2007 Berkeley Journal of International Law In relation to American law, for example, there an excessive fines clause in the Eights Amendment to the Constitution. See USLegal Excessive Fines Clause Law & Legal Definition Date Unknown [28/01/2016]: Excessive fines clause is a clause of the Eighth Amendment to the U.S. Constitution which prohibits the imposition of excessive fines. Excessive fines clause limits the government's power to extract payments, whether in cash or in kind, as punishment for an offense. The touchstone of the constitutional inquiry under the excessive fines clause is the principle of proportionality. The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. A punitive forfeiture violates the excessive fines clause if it is grossly disproportional to the gravity of a defendant's offense. 13 RS/Inconst/Pén.0001/08/CS(JO n 21bis du 01/11/2008).

12 General principles of criminal liability and defences: the requirement that punishment be necessary The entrenchment of fundamental rights in the Constitution also has direct impact on the construction of the general principles of liability and the defences afforded to accused persons. For example, would it be constitutionally justified to impose a jail sentence to a 2-year old child for assault and battery (coups et blessures) committed against another child? Would that achieve any purpose? Without a clear purpose, the provision enabling courts to impose such sentence would run counter to the Constitution. The same argument applies to the defence of pathological criminal incapacity (mental illness). What purpose would be served by convicting a person with mental illness of a crime and sending him to prison? None! He must rather be sent to a psychiatric hospital for treatment. The same should also be applied to the defence of mistake of law. It is often said that ignorance of law is no excuse! Should this be said in every case, even where the accused is completely innocent, for example when he relied on a wrong legal advice given to him by a professional lawyer? Finally, the same argument would apply with equal force in case of mistake of fact relating to a ground of justification. This is the situation where X genuinely and reasonably thinks that, for example, he is in a situation of self-defence (i.e. he is being attacked) and kills or injures an innocent person. In a situation such as this, would sending X to prison serve any purpose? You will find answers to these questions in the chapter dealing with criminal liability Specific crimes Laws that prohibit given conduct and thereby restrict specific constitutional rights must also be tested against the limitation clause (i.e, must be justified). A recent case that was reported in the media which clearly raises a question of constitutionality of a criminal statute is the one of a woman who was sentenced to death in Sudan for abandoning 14 See chapter 3 hereunder.

13 11 her Islamic faith and marrying a Christian. 15 Does the Sudanese statute that criminalises such a conduct resonate with the right to freedom of religion and the rights to liberty and dignity if these rights exist under the Sudanese constitution? In other words, is the crime in question a reasonable and justifiable limitation to the rights to freedom of religion, liberty and dignity? Keep this question in mind throughout the rest of your studies in Criminal Law (including Specific Crimes) 16 and in other law courses in general. 15 See AFP Sudan judge orders Christian woman to hang for apostasy [16 May 2014]. 16 For example, the right to freedom of speech is protected by article 34(1) of the Constitution. Are crimes such as incitement to commit genocide and other serious crimes (art 19, 140) and genocide ideology (art 135 PC), which restrict the freedom of speech, unconstitutional or not? Read chapter seven of the Human Rights Handbook indicated above, if you don t yet understand how to approach this question.

14 12 CHAPTER 2: THE PRINCIPLE OF LEGALITY 2.1. Introduction Intervention by the Criminal Law may be traumatic to a person accused of a crime. It can easily happen that Criminal Law is turned into a tool of suppression or oppression. It is therefore important that mechanisms exist to protect the rights of individuals against abuse by State organs and agents. The principle of legality plays an important role in this regard. Broadly stated, the principle of legality means that there is no crime without law and there is no punishment without law Besides being a general principle of Criminal Law, the principle of legality is also enshrined in article 24(2) of the Constitution, which reads as follows: No one shall be subjected to prosecution, arrest, detention or punishment unless provided for by laws in force at the time the offence was committed. The principle of legality is also enshrined in the Penal Code which provides that: A person shall not be punished on account of an act or omission that did not constitute an offence at the time of commission under national or international law. 17 This principle is also provided with the International instruments ratified by Rwanda such as the article 15 of the International Covenant on Civil and Political Rights which reads: No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. However, the meaning of the principle of legality is broader than the rule that no crime exists unless the legislator has said so by way of a statute. The other rules that are implied in the principle of legality are discussed below. 17 Art 3(1) PC.

15 Rules embodied in the principle of legality The principle of legality in relation to criminal offenses (nullum crimen sine lege) If one analyses the principle of legality, one finds that it in fact embodies five distinct rules. These five rules are the following: Ius acceptum The ius acceptum rule (which is sometimes erroneously taken as synonym with the principle of legality) means that a court may find the accused guilty of a crime only if the kind of act performed is recognised by the law as a crime. In other words, a court itself may not create a crime. There is no crime if there is no law Ius praevium A court may find an accused guilty of a crime only if the kind of act performed was recognised as a crime at the time of its commission. Penal provisions do not have retrospective effect. 18 Portalis 19 expressed the rationale of the prohibition of retroactive penal provisions as follows: Le législateur ne doit pas frapper sans avertir: sinon la loi, contre son objet essentiel, ne se proposerait pas de rendre les hommes meilleurs, mais seulement de les rendre plus malheureux Ius certum Even if ius acceptum and ius praevium rules are complied with, the principle of legality can still be undermined by the creation of criminal norms which are formulated vaguely or unclearly because, in this case, it would be difficult for individuals to understand exactly 18 Art 3(1) PC: A person shall not be punished on account of an act or omission that did not constitute an offence at the time of commission under national or international law. 19 Cited by Tahiry Anja Razafiarison, La responsabilité médicale à Madagascar : Réalités internes et proposition d'actualisation en référence au droit médical français (PHD-thesis, Université de Poitiers, 2013), p. 85. Available at

16 14 what is expected of them. Thus, crimes must be formulated clearly; they ought not to be formulated vaguely. 20 An example of a criminal prohibition couched in unacceptably vague language (and hailing from Nazi Germany in 1953) is the following: Any person who commits an act which, according to the fundamental idea behind the penal law, and according to the good sense of the nation, deserves to be punished, shall be punished. The Constitution contains no express provision as regards the ius certum rule. However, such a rule may be inferred from other rights that are guaranteed by the Constitution such as the right to a fair trial, which contains a substantive component. The substantive fairness of a trial relates to the fairness of the prosecution itself and not the fairness of the manner in which the trial is conducted. It includes a judgment whether the very institution of the prosecution is fair, regardless of how fairly the ensuing trial may be conducted Ius strictum Even if all the above-mentioned three aspects of the requirement of legality are complied with, the general principle can nevertheless be undermined if a court is free to interpret widely the words or concepts contained in the definition of the crime or to extend their application by analogous interpretation. Thus, provisions creating crimes must be interpreted strictly; not by analogy. This rule is enshrined in art 4 PC, which provides that: [C]riminal laws shall not be interpreted too extensively, they must be construed strictly. 22 The same rule is found in article 2(2) of the French version of the Penal Code which reads as follows: Il est interdit aux juridictions de prononcer par analogie In American legal literature, this idea is commonly referred to as the principle of fair warning. 21 You will learn more about this concept in Criminal Procedure course. 22 Art 4(1).

17 The principle of legality with respect to penal sanctions (Nulla poena sine lege) The principle of legality also applies in regard to penal sanctions. It states that after an accused has been found guilty, the above-mentioned four rules must also be applied when it comes to imposing a sentence. With regard to the ius acceptum and ius praevium rules, the Penal Code explicitly provides that: [A]n offence shall not be punishable by penalties which were not provided for by the law published before its commission. 24 However, with respect to the ius praevium rule (in relation to penal sanctions), there is the following exception: new laws which are softer for the accused are retroactive. This rule is known as retroactivity in mitius. This exception is provided for in article 8 PC which reads as follows: In case of conflict of two criminal laws including the old one under which the offence was committed and the new one enacted after the offence was committed but before the final judgment is delivered, the new law shall be applied, if it provides for a lesser penalty. The same rule is enshrined in the Constitution which provides that: [ ] shall any person be punished with a penalty which is heavier than the one that was applicable under the law at the time when the offence was committed Art(2)(2) PC, French version. The formulation of the English version of this article does not give to the provision is meaning in clear manner as in the French version. 24 Art 3(3) PC. 25 Art 20(2) Constitution.

18 16 CHAPTER 3: THE JURISDICTION OF THE RWANDAN PENAL LAW I. Limited jurisdiction 1. Jurisdiction based on Rwandan territory 1.1. General All infractions committed on the Rwandan territory, whether by Rwandans or by foreigners are punished according to the Rwandan penal law 26. This is the principle of territoriality. The right to punish every crime committed on a territory of a country is an attribute of its sovereignty What does it mean Rwandan territory? The Rwandan territory is defined by article 8 of the PC. It includes the terrestrial territory, rivers, lakes and the aerial space within the boarder of the Republic of Rwanda and the Rwandan embassies in foreign countries What does it mean a crime committed on Rwandan territory? An act is considered as committed on the Rwandan territory, if one of its essential elements occurred on the Rwandan territory Acts of complicity committed on Rwandan territory For acts of complicity committed on Rwandan territory where the main crime is committed abroad, the accomplices may be prosecuted before Rwandan courts if (1) the main crime is a felony or misdemeanour and (2) if the act is punishable by both foreign and Rwandan Law Art. 9 PC. 27 Art. 11(1) PC. 28 Art 12.

19 17 2. Extra-territorial jurisdiction: jurisdiction based on Rwandan nationality 2.1. General Rwandan penal provisions may be applicable to crimes committed outside the Rwandan territory, if such crimes are committed by or against a Rwandan citizen. Here, one has to distinguish between a crime committed on a territory which is not subject to the jurisdiction of any state and a crime committed on the territory of a foreign state Crimes committed on a territory which is not subject to the jurisdiction of any state Are assimilated to crimes committed on the Rwandan territory, infractions committed: by or against a Rwandan citizen in a place not subject to the jurisdiction of any state or any person aboard a ship sailing under the Rwandan flag and which is outside the territorial waters of any state, or any person aboard aeroplanes registered in Rwanda which are in the air flying in space not subject to the control of any state. 29 This is the passive personality principle Crimes committed on the territory of a foreign state: nationality principle A Rwandan who commits a felony or a misdemeanour, outside Rwandan territory, may be prosecuted and tried by Rwandan courts in accordance with the Rwandan Law as if the offence had been committed on the Rwandan territory if such an offence is punishable by Rwandan Law When is Rwandan nationality assessed? The Rwandan nationality is assessed at the time of the commission of the offence Ne bis in idem 29 Art. 11(2) PC 30 Art. 13 PC. 31 Art 14.

20 18 For crimes committed outside Rwanda, prosecution may not be instituted if the accused proves that he/she has been the subject of a final judgment delivered abroad and, in the event of conviction, that he/she served his/her sentence or was granted a pardon. 32 You must notice that what the law seeks to avoid here is a second prosecution, not a second punishment for the same crime. II. Universal jurisdiction Any person, including a foreigner, found within the territory of the Republic of Rwanda after having, while abroad, committed any of the following crimes shall be prosecuted and tried by Rwandan Courts in accordance with Rwandan laws as if the crime had been committed in Rwanda: 33 - terrorism; - hostage-taking; - piracy; - drug trafficking; - illicit manufacturing and trafficking in arms; - money laundering; - cross-border theft of vehicles with the intent of selling them abroad; - information and communication technology related offences; - trafficking in human beings especially children; - slavery and torture; - cruel, inhuman or degrading treatment; - genocide, crimes against humanity and war crimes; - genocide denial or revisionism; - encouraging, mobilizing, assisting, facilitating or participating in any other manner, whether directly or indirectly, in the commission of any of the offences specified in this Article or any other related offences. Some of these crimes such as the cross-border theft of vehicles with the intent of selling them abroad should not be subject to universal jurisdiction. 32 Art 17(2). 33 Art 16 PC.

21 19 CHAPTER 4 CRIMINAL LIABILITY 3.1. Introduction When investigating the various crimes, one finds that they all have certain characteristics in common. Before a person can be convicted of any crime, the following requirements must be satisfied. The four elements of criminal liability are discussed in this chapter. These are: An act (or omission) Compliance with the definitional elements of the crime Lack of justification (Unlawfulness) Blameworthiness (Culpability):Lack of excuse 3.2. The requirement of an act (or omission) Introduction The very first general requirement for criminal liability is that there must be an act on the part of X (the accused). In exceptional cases, an omission (failure to act) is also punished as an act. Thus, in this study guide, the term act will be used in its wide, nonliteral sense, referring to both a commission and an omission. The requirement of an act (or omission) for criminal liability is expressly provided for by the Penal Code which defines an offence as: An act prohibited or an omission which manifests itself as a breach of the public order and which the law sanctions by a punishment Acts and omissions: General notions The following are the consequences of the requirement of an act for criminal liability: 34 Art. 2PC.

22 Thoughts are not punishable Merely thinking of doing something, or even a decision to do it, is not an act and thus not punishable. Before there can be any question of criminal liability, X must have started converting his thoughts into actions. However, this does not mean that only the completed crime is punishable. As will be seen later in this course, an attempt to commit a crime is also punishable Act must be a human act In ancient societies and during the Middle Ages, animals and even inmate objects, such as beams which fell on people s heads, were sometimes tried and punished. This cannot happen in today s legal systems. 36 The perpetrator of the act must be a human being. An example of the punishment of animals in ancient societies is found in Exodus 21(28): If an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit Act must be voluntary General If conduct is not controlled by the will, it is involuntary, such as, for example, when a sleep-walker tramples on somebody, or an epileptic swings his hand while having an epileptic fit and hits someone in the face. In such cases, X is not the offender of what happened, but rather something happened to him. The conduct is thus voluntary if X is capable of subjecting his bodily movements to his will or intellect. However, the concept of voluntary act should not be confused with the concept of a willed act. Conduct which is not willed, such as acts which a person commits negligently may also be punishable. Even a negligent act is a voluntary act. For this reason, the name involuntary homicide is misleading because, by negligently causing 35 But, even in case of attempt, some act is required which goes beyond a mere idea or a decision to do something. Other exceptions to the requirement of an act for criminal liability are the offences of incitement and conspiracy which will be studied latter in this course. 36 However, a human being can be punished if he commits a crime through the agency of an animal, for example where he urges his dog to bite someone.

23 21 the death of another person, X has committed a voluntary act for example driving a car which has mechanical problems. The act of driving is voluntary, only the consequence (causing the death of another person) was not intended. It is therefore more fitting to call this crime negligent homicide, rather than involuntary homicide Factors (defences) which exclude the voluntariness of the act The following factors result in the conduct not being regarded as voluntary in the eyes of the law, and therefore not qualifying as act in the criminal law sense of the world. (i) Absolute force The voluntary nature of an act may first be excluded by the absolute force (vis absoluta). The following is an example of an absolute force: X is slicing an orange with his pocket-knife. Z, who is much bigger and stronger than X, grabs X s hand which holds the knife, and presses it, with the blade pointing downward, into Y s chest. Y dies of the knife-wound. X with his weaker physique, would have been unable to defend himself, even if he had tried. X performed no act. It was Z who performed the act. This situation (of absolute force or vis absoluta) must be distinguished from one involving relative force (vis compulsiva), where X is indeed in a position to refrain from committing the harmful attack, but is confronted with the prospect of suffering some serious harm or wrong if he does not commit it. This situation will be studied later in this course under the section dealing with the defence of necessity (duress). (ii) Natural forces The voluntary nature of an act may, in the second place, be excluded if a person is propelled by natural forces, thereby causing others damages. If a hurricane blows X through Y s shop-window, X has committed no act for which he may be punished.

24 22 (iii) Automatism A. Notion The third-and in practice, the most important-instance in which the law does not regard the conduct as voluntary, is where a person behaves in mechanical fashion-as in the following instances: (i) Reflex movements such as heart palpitations or a sneezing fit; (ii) Somnambulism; (iii) Muscular movements such as an arm movement of a person who is asleep, unconscious or hypnotised, or having a nightmare, an epileptic fit, or the so-called black-out These types of behaviour are often referred to as cases of automatism, since the muscular movements are more reminiscent of the mechanical behaviour of an automaton than of the responsible conduct of a human being whose body movements can be controlled by his will. The following is an example of involuntary behaviour in the form of automatism : While walking in his sleep, X tramples on Y s head. Does X commit assault? No, because there has been no voluntary conduct on his part. B. Antecedent liability The following is the qualification of the general rule that muscular or bodily movements performed in a condition of automatism do not result in criminal liability: if X knows that he suffers epileptic fits or that, because of some illness or infirmity he may suffer a black-out, but nevertheless proceeds to drive a motor-car, hoping that these conditions will not occur while he is sitting behind the steering wheel, but they nevertheless do occur, he cannot rely on the defence of automatism. In these circumstances he can be held criminally liability for certain crimes which require mens rea (the mental element of crimes) in the form of negligence, such as involuntary homicide. He can even be held

25 23 criminal liable for murder if his intention in the form of dolus eventualis is established. 37 His voluntary act is then performed when he proceeds to drive the car while still conscious. This form of liability is described as antecedent liability The defence of intoxication Some commentators on Criminal Law take the view that extreme intoxication, when it is not voluntary, can be a defence which negates the requirement of a voluntary act. This question will be discussed later in the chapter dealing with intoxication Provocation and mental stress Whether and to what extent extreme provocation and mental stress may be a defence excluding the requirement of an act will be discussed later in a chapter dealing specifically with these defences Omissions: special considerations In the first section of this study unit, criminal liability for both acts and omissions was studied in general terms. In this section, liability for omissions is dealt with in a particular way Legal duty to act positively An omission is punishable only if there is a legal duty upon X to act positively. A moral duty is not the same as a legal one. When is there a legal duty to act positively? The following are the specific examples: (i) A statute (law) may impose a duty on somebody to act positively.for example, the Rwandan penal code imposes a general duty to everybody to assist someone in danger: Any person who neglects to assist a person in great danger when there is no risk for him/her or others while in a position to do so or to seek assistance shall be liable to the penalties under Paragraph One 37 This is discussed in great detail under the section dealing with culpability.

26 24 of this Article (imprisonment of two (2) years to five (5) years and a fine of one hundred thousand (100,000) to one million (1,000,000) Rwandan francs). 38 (ii) The duty may arise from an agreement. In one English case, Pitwood (1902) 19 TLR 37, the facts were that X and a railway company had agreed that for remuneration, X would close a gate every time a train went over a crossing. On one occasion he omitted to do so and in this way caused an accident, for which he was held liable. (iii) (iv) (v) Where a person accepts responsibility for the control of a dangerous or potentially dangerous object, a duty arises to control it properly. In a South African case, Fernandez 1966 (2) SA 259 (A) X kept a baboon and failed to repair its cage properly, with the result that the animal escaped and bit a child who later died. X was convicted of culpable homicide (involuntary homicide). A duty may arise where a person stands in a protective relationship to somebody else, for example, a parent or guardian who has a duty to feed a child. A duty may arise from a previous positive act, such as where X lights a fire in an area where there is a dry grass, and then walks away without putting out the fire to prevent it from spreading. This type of case is sometimes referred to as an ommissio per commissionem (an omission following upon a positive act which created the duty to act positively) The defence of impossibility An omission is punishable only if it was possible for X to perform the positive act. After all, the law cannot expect somebody who is a lame to come to the aid of a drowning person, or somebody who is bound in chains to extinguish a fire: A l impossible nul n est tenu! 38 Art. 570(3) PC.

27 Compliance with the definitional elements Meaning Once it is established that there was an act or omission (conduct) on the part of X (the accused), the next step in the determination of criminal liability is to investigate whether the conduct in question complied with (or corresponds to) the definitional elements of the crime with which X is charged. The definitional elements signify the concise description of the requirements set by the law for liability for a specific type of crime. In every crime, there are found two elements: the material element (actus reus) and the mental element (mens rea). The mental element consist in either intention or negligence. For example, the actus reus (material element) of murder is the killing (1) of another human being (2), while the mens rea (mental element) of the same offence consists in the intention to cause death (or animus necandi in Latin). If Paul kills his friend John by accident, no murder is committed because mens rea in the form of intention is lacking. Instead, if the accident happened as a result of Paul s negligence (uburangare in Kinyarwanda), X will be found guilty not for the crime of murder, but for involuntary homicide. If, no negligence can be established at all, no crime (even involuntary homicide) has been committed, because mens rea 39 in the form of negligence is also lacking Actus reus: the material element of crimes Elements contained in the material element of a crime The actus reus comprises all the elements contained in the definition of the prohibition other than the mens rea (intention or negligence). It does not only refer to the kind of act that is prohibited (for example possession or sexual intercourse) but also to the circumstances in which the act must take place, such as, for instance the particular way 39 The term mens rea can be translated literally as guilty mind. But, as will be seen later, a person may be said to have mens rea and be guilty of a crime even though he is unaware that he is committing a crime. This is the case if X is convicted of a crime requiring mens rea in the form of unconscious negligence (which will be discussed below). It is for this reason that Snyman describes the term mens rea as an unfortunate and ambiguous term (CR Snyman, op.cit, p. 144.

28 26 in which the act must be committed (for example violently 40 ), the characteristics of the person committing the act (for example, a soldier in the crime of desertion), the nature of the object in respect of which the act must be committed (for example movable corporeal property in theft) and sometimes a particular place where the act has to be committed (for example in a public place ) 41 or a particular time when or during which the act has to be committed (for example during the night ) Classification of crimes according to their actus reus Crimes can be divided into different groups or categories according to their actus reus. The most important classifications are: (1) Instantaneous infractions and continuous infractions 43 ; (2) Instantaneous infractions and continued infractions 44 ; (3) Simple infractions and infarctions of habit; (4) Simple infractions and complex infractions; (5) Formally defined crimes and materially defined crimes Instantaneous infractions and continuous infractions The act which constitutes the material element of an offencecan take place either in a short period of time (such as theft, murder or assault and battery 45 ) or within a relatively long period of time (such as torture, illegal carrying of arms and arbitrary detention). One will talk about instantaneous offencein the first case, and continuous offencein the second case. An instantaneous offenceis completely realized by an accomplishment of a prohibited act, or an omission of an act ordered by the law. In other words, it is instantaneous an 40 Art 695(1) PC. 41 See for example article 684 PC: A demonstration means a group of people gathered in a public place with intent to demonstrate their opinion or point of view by means of a number of actions or shouting. 42 See for example article 600 PC: Any person found guilty of making noise and night disturbance in a way that causes trouble among people, shall be liable to a term of imprisonment of eight (8) days to two (2) months and a fine of fifty thousand (50,000) to one million (1,000,000) Rwandan francs or one of these penalties. 43 Infractions continues in French. 44 Infractions continuées in French. 45 The crime of assault and battery is also called blows and injuries by some academics (it is known as coups et blessures in French).

29 27 offencewhich is accomplished, at a given moment, by a unique act. On the other hand, a continuous offencesupposes a certain period of time. In this case, the law does not punish an isolated act but the persistence 46 of an illegal situation. The interest of distinction between an instantaneous and a continuous offencecan be established at 2 levels: a. At the level of prescription of the criminal action This question is regulated by article 6 of the Code of Criminal Procedure. 47 In regard to instantaneous offences, the prescription of criminal action starts to run from the day on which the offence was committed. 48 In respect of continuous offences, the prescription of criminal action starts to run from the day on which the criminal action ceased. 49 b. At the level of application of the new law An instantaneous offenceis governed by the law which is into force at the time the act is committed. A continuous offenceis governed by the new law even if this new law is more severe than the ancient law, if its consequences persisted beyond the entering into force of the new law Instantaneous infractions and continued infractions An example of a continued offenceis the offence of adultery committed by a married man who has repeated sexual intercourse several times with one woman (accomplice). 50 Each time this man sleeps with this woman, the crime is committed. But, if the man is not caught until he commits the same offence 20 times, he will be charged with only one offence which was simply continued until when he was arrested. Another example is smoking prohibited drugs. If you are arrested after smoking many times over a period of time, you will only face a single charge, not many charges of smoking. 46 Persistence does not mean repetition. It implies the same act that is extended onto a relatively long period of time. 47 Law n 30/2013 of 24/5/2013 Relating to the Code of Criminal Procedure (Official Gazette nº 27 of 08/07/2013). 48 Art. 6(2) CCP. 49 Art. 6(3) CCP. 50 RUTAZANA A, General Criminal Law, NUR, Faculty of Law, course notes for students, unpublished, 2002, p. 33. The accomplice is punishable by the same penalties as the offender of adultery (art 245(2) PC).