THE UNIVERSITY OF ZAMBIA

SCHOOL OF LAW

NAME : LUYANDO C. MUSONDA

COMPUTER NUMBER : 2018258125

COURSE : CRIMINAL LAW

COURSE CODE : LPU 2940

LECTURER : DR. E. SIANG’ANDU

TUTOR : MS MANGE

TASK : TEST 6

DUE DATE : 9TH November, 2020

This legal opinion aims at advising the Magistrate on whether the Prosecution can succeed in the
matter at hand. The following legal issues need to be addressed in order to have an opinion.

1. Whether or not Justine can be convicted by the courts of law?

As point of departure, Section 141 of the Penal Code opines:

“(1)A person under the age of eight years is not criminally responsible for any act or
omission.

(2) 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. “

Simply put, the law presumes that a child under the age of 8 is incapable of committing an
offence. Therefore such a child cannot be convicted. Even if that child steals something and
brings it home, the parents who receive or retain the thing are not liable to be convicted for
receiving or retaining stolen property, since the act of the child could not amount to stealing or
theft.2

Furthermore, a child over 8 years but below 12 years at the time of the commission or omission
of the offence in question is presumed by the criminal law in Zambia to be incapable of
committing the offence. Unlike for a child under eight years of age, the presumption is rebuttable
by the prosecution proving that the defendant knew that his or her act was wrong. The
presumption can only be rebutted by clear, positive proof of that beyond reasonable doubt. It
should be noted that it is not enough for the prosecution to prove that the child regards his or her

1
Chapter 1 of the Laws of Zambia.
2
Kulisika, E. Simon. Texts, Cases and Materials on Criminal Law in Zambia. (Lusaka: UNZA Press, 2006).
act or omission as being merely mischievous. Even if the act committed was tragic, horrific or
disgusting, it will not be sufficient to rebut the presumption.3

In C v DPP4, the court held the presumption of doli incapax for a 10-14 year old child is no
longer good law. The court further opined that:

“Whatever may have been the position in an earlier age, when there was no system of
universal compulsory education and when, perhaps, children did not grow up as quickly
as they do nowadays, this presumption at the present time is a serious disservice to our
law. It means that a child over ten who commits an act of obvious dishonesty, or even
grave violence, is to be acquitted unless the prosecution specifically prove by discrete
evidence that he understands the obliquity of what he is doing. It is unreal and contrary
to common sense”

1.2. DEFILEMENT

As per Section 138 of the Penal Code 5, any person who unlawfully & carnally knows any child
commits a felony and is liable upon conviction to life imprisonment or a term not less than 15
years. Therefore in order to secure a conviction for Defilement the following requirements need
to be met; Sexual intercourse must have taken place with a child and the child must be below the
age of 16. The fault element is the intention and recklessness. The accused has to establish that
the Child appeared to be 16 years and above or ought to have a reasonable belief that the child
was 16years.

In The People v. Stephen Hara,6 the accused aged 39 was charged with defilement of a child
aged 11 contrary to section 138(1) of the Penal Code. Stephen at Lundazi in the Lundazi district
of eastern province unlawfully had carnal knowledge with a girl under the age of 16. The High
Court held that the offence which the accused had committed was very serious hence there was
need for him to be excluded from society for a longer period. The accused was sentenced to 25

3
Kulisika, E. Simon. Texts, Cases and Materials on Criminal Law in Zambia. (Lusaka: UNZA Press, 2006).

4
QBD 30 Mar 1994

5
Chapter 87 of the Laws of Zambia.
6
(2004) HC
years imprisonment with hard labour the harsh sentence was imposed to reflect the barbaric
nature of the act.

In Zambia, under section 14(3)7 of the PC, the law presumes that a child (male) under 12 years of
age to be incapable of having carnal knowledge of a woman or girl. Therefore, a child of twelve
years could not be convicted of any offence requiring sexual intercourse, such as rape,
defilement.8

1.3. THEFT

Section 265(i) states that

“A person who fraudulently & 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”

Definitively, fraudulently means dishonest, the taking must be intentional, without mistake and
with knowledge that the thing being taken belongs to another person. Therefore, for there to be
theft, there must be something capable of being stolen and that thing must belong to another
person.9

In Mwachilama v The People10, the appellant was convicted in High Court of stock theft. The
defendent stole one Ox and five cows. The appellant’s defence was the six cattle had strayed
onto his land & eaten his maize. He knew that the cattle were not his but he did not know the
owner. He argued he had the right to keep the cows or sell them because they ate his maize. The
court held that they may be an honest belief that the taker believed he had a right to the property
or he may have an honest belief that he had a claim of right against another and honestly
believed he had a right to enforce his claim against the other person’s property.

7
Chapter 87 of the Laws of Zambia.
8
Kulisika, E. Simon. Texts, Cases and Materials on Criminal Law in Zambia. (Lusaka: UNZA Press, 2006).
9
Kulisika, E. Simon. Texts, Cases and Materials on Criminal Law in Zambia. (Lusaka: UNZA Press, 2006).
10
(1972) ZR 287
A person is not criminally responsible in respect of an offence relating to property, if the act
done or omitted to be done by him with respect to the property was done in the exercise of an
honest claim of right and without intention to defraud.11

Therefore, theft is committed when the defendant takes or converts a thing capable of being
stolen and belonging to another fraudulently and with intent to permanently deprive owner of the
property.12

Further, the case R v FC13, the court found the child aged 10 guilty of theft owing to the fact that
there was proof beyond reasonable doubt that the child knew he was doing.

2. APPLICATION OF THE ABOVE LAW TO THE FACTS

By way of application, it can be seen in the facts before the court that Justine took K2000
belonging to Mrs. Banda, a marketer at Nakapoli Market, without her permission. The said
money was used to buy foodstuffs during his 11th birthday celebration which fell on the 5th of
September, 2018. This suggests that Justine was 10 years old at the time of committing the
offence. That on its own can exempt him from criminal liability. However, Justine is above the
age of 8 years and below the age of 12 years this means that if it can be proved that he knew
what he was doing he can be convicted. Similarly, in the case of C v DPP.

3.2. DEFILEMENT

In applying the law to the facts on the second legal issue, it can be seen in the second count that
there is an allegation that Justine had sexual intercourse with Mwaka, a girl aged 15. Justine
informed the court that Mwaka was his girlfriend who had also consented to the sexual
intercourse. However, according to Section 14 of the Penal Code a person below the age of 12
years cannot have sexual intercourse. Therefore, Justine can be exempted for liability for the
offence of defilement as the facts suggest that he was 10 years old. The facts provide that Mwaka
consented to the sex. However, that is immaterial is she is not of age regarding sexual
intercourse.

11
Kulisika, E. Simon. Texts, Cases and Materials on Criminal Law in Zambia. (Lusaka: UNZA Press, 2006).
12
Kulisika, E. Simon. Texts, Cases and Materials on Criminal Law in Zambia. (Lusaka: UNZA Press, 2006).
13
(1941) NRLR
 3.3. THEFT

With regard the third legal issue, it can be seen in the facts that Justine took K2000 belonging to
Mrs. Banda, a marketer at Nakapoli Market, without her permission. His action meets all the
elements of theft as provided for under section 265 of the Penal Code. However, Justine is below
the age of 12 years but above 8 years. It can be argued that Justine being 10 years old knew that
stealing is wrong.

4. CONCLUSION

In conclusion, the prosecution is likely to be successful in theft as long as it can be proved that
Justine knew what he was doing and may not succeed in the defilement by virtue of Section
14(3) of the penal code which provides that a person below 12 years old is not capable of having
sexual intercourse.

BIBLIOGRAPHY

STATUTES

Penal Code Act, Chapter 87 of the laws of Zambia.

CASES

C v DPP QBD 30 Mar 1994

Mwachilama v The People (1972) ZR 287

R v F.C (1941) NRLR

The People v. Stephen Hara (2004) HC

Kulisika, E. Simon. Texts, Cases and Materials on Criminal Law in Zambia. (Lusaka: UNZA
Press, 2006).