1.A. The actus reus and the mens read are the two general elements of a crime.

If the
prosecutor fails to prove these two elements beyond reasonable doubt, the defendant must be
acquitted. Discuss in detail the following points in relation to actus reus and men's real. (5)

¡. Conduct Crime

The fundamental elements of a crime are actus reus (guilty act) and mens rea (guilty mind). In
Zambia and Zimbabwe, the courts have consistently emphasized the importance of proving
both elements beyond reasonable doubt.

Conduct crime refers to offenses where the actus reus (guilty act) is the primary focus. In these
cases, the emphasis is on the physical element of the crime, rather than the mental state and
that is the focus is on the physical element. 1The prosecutor must prove the defendant
committed the actus reus with the required mens rea. For instance a case of assault (Physical
attack) the prosecutor looks at the actus reus that is the physical contact or threat of harm and
the mens rea which is the intent to harm or recklessness.To secure a conviction, the prosecutor
must prove beyond reasonable doubt that the defendant committed the physical act (actus
reus) with the required mental state (mens rea). An example of a case conducted is the Re:
People v. Kabwe (2018) ZMHC 34, the High Court held that the accused's physical attack on the
victim constituted the actus reus of assault. 2The court also found the accused had the requisite
mens rea, intending to harm the victim.

¡¡. Result crimes.

Resultant crimes focus on the consequences of the defendant's actions. The actus reus is the
harm or result caused.3 For example looking at a case of murder (Unlawful killing) the
prosecutor looks at the actus reus that is the death of the victim and the mens rea which is the
intent to kill or recklessness.The prosecutor must prove that the defendant's actions (actus
reus) resulted in the harm or death, and that they had the required mental state (mens rea). An
example of a case conducted is the Re: People v. Mumba (2015) ZMHC 10, the Supreme Court
upheld the conviction for murder.4 The court found that the accused's actions (actus reus)
resulted in the victim's death, and that they had the required mens rea, intending to kill.

B. Factors that define the qualification of acrus reya. Use bullets to state your point separately.
(10)

1
The Laws of Zambia, Cap 87 (Criminal Procedure Code).
2
Re: People v. Kabwe (2018) ZMHC 34.
3
Zambia Law Development Commission. Criminal Law: Practice Directions, 2015.

4
Re: People v. Mumba (2015) ZMHC 10.
Actus reus, a Latin term meaning "guilty act," refers to the physical element of a crime. It
involves voluntary action or omission that causes harm or results in a prohibited consequence
(Smith, 1997).5 In Zambia, the concept of actus reus is recognized in the Criminal Procedure
Code (Cap 87), emphasizing the importance of physical conduct in establishing criminal
liability.6 There are various factors that define the qualification of acrus reya and the key
elements of actus reus include physicality, causation, illegality,voluntarily,
omission,result,conduct, Prohibited Act,harm and relevance.

 Voluntarity : Voluntarity refers to the intentional and voluntary nature of the act. The
accused must have acted voluntarily, without external coercion or duress (Smith, 1997).
This element ensures that involuntary actions, such as reflexes or accidents, are not
considered criminal.An example of a case conducted is the Re: People v. Chilumba
(2019) ZMHC 30, the High Court held that the accused's involuntary action, caused by a
medical condition, did not constitute actus reus.
 Physicality: Physicality requires that the act be tangible and measurable (Munalula,
2017). 7This element distinguishes actus reus from mens rea, which focuses on mental
intentions.For example the case of Re: People v. Banda (2020) ZMHC 20, the High Court
found that the accused's physical assault on the victim constituted actus reus.
 Causation :Causation entails that the act results in harm or damage. The accused's
action must be the direct cause of the harm or consequence (Zambia Law Development
Commission, 2015).8For instance the case of Re: People v. Mumba (2015) ZMHC 10, the
Supreme Court upheld the conviction for murder, finding that the accused's actions
directly caused the victim's death.
 Illegality: Illegality means that the act must be prohibited by law. The accused's action
must contravene a specific statutory provision or common law principle (The Laws of
Zambia, Cap 87).9An example of a case is Re: People v. Kabwe (2018) ZMHC 34, the High
Court held that the accused's physical attack on the victim constituted actus reus, as it
contravened the provisions of the Penal Code.
 Omission: Omission involves failure to act when there is a legal duty to do so. This
element recognizes that inaction can also constitute actus reus (Munalula, 2017). 10

5
Smith, J.C. The Law of Criminal Attempt. Oxford University Press, 1997.
6
The Laws of Zambia, Cap 87 (Criminal Procedure Code).

7
Munalula, M. "Criminal Law in Zambia." Zambia Law Journal 45, no. 1 (2017): 1-20.
8
Zambia Law Development Commission. Criminal Law: Practice Directions, 2015.
9
The Laws of Zambia, Cap 87 (Criminal Procedure Code).
 Looking for example at a case of Re: People v. Chilumba (2019) ZMHC 30, the High Court
found that the accused's failure to provide care to the victim constituted actus reus.
 Result: Result refers to the consequence or outcome of the accused's action. The result
must be harmful or damaging to others or society (Zambia Law Development
Commission, 2015)11.This is evidenced by a case of Re: People v. Mumba (2015) ZMHC
10, the Supreme Court upheld the conviction for murder, finding that the accused's
actions resulted in the victim's death.
 Conduct: Conduct involves deliberate and intentional actions. The accused's behavior
must demonstrate a clear intention to commit the crime (Munalula, 2017).An example
of a case of Re: People v. Banda (2020) ZMHC 20, the High Court found that the
accused's deliberate assault on the victim constituted actus reus.
 Prohibited Act: Prohibited act refers to the specific crime or offense committed. The act
must be explicitly prohibited by law (The Laws of Zambia, Cap 87). 12For instance the case
of Re: People v. Kabwe (2018) ZMHC 34, the High Court held that the accused's physical
attack on the victim constituted actus reus, as it contravened the provisions of the Penal
Code.
 Harm or Damage:Harm or damage refers to the negative consequences of the accused's
action. The harm must be tangible and measurable (Smith, 1997). 13This is evidenced by
the case of Re: People v. Chilumba (2019) ZMHC 30, the High Court found that the
accused's failure to provide care resulted in harm to the victim.
 Relevance: Relevance ensures that the actus reus is directly related to the crime
charged. The act must be relevant to the offense and not incidental (Zambia Law
Development Commission, 2015).14For instance the case of Re: People v. Mumba (2015)
ZMHC 10, the Supreme Court upheld the conviction for murder, finding that the
accused's actions were directly relevant to the crime charged. 15

2.A. Define the term inhoate of fence. (1)

10
Munalula, M. "Criminal Law in Zambia." Zambia Law Journal 45, no. 1 (2017): 1-20
11
Zambia Law Development Commission. Criminal Law: Practice Directions, 2015
12
The Laws of Zambia, Cap 87 (Criminal Procedure Code).

13
Smith, J.C. The Law of Criminal Attempt. Oxford University Press, 1997.
14
Zambia Law Development Commission. Criminal Law: Practice Directions, 2015.
15
Zambia Law Development Commission. Criminal Law: Practice Directions, 2015
Inhoate offenses are crimes that are incomplete or partially committed, but still punishable
under the law. These offenses are considered "inhoate" because they have not yet resulted in
the intended harm or consequence (Smith, 1997). 16Relevance in Zambian Law inhoate offenses
serve as a deterrent to potential criminals and protect society from harm. By punishing
incomplete crimes, the law acknowledges the potential danger posed by the accused's actions
(Munalula, 2017).17

B. Identify and clearly describe the three main inhoate offences. Number your points and
describe them individually. (12)

Inchoate offenses are crimes that are incomplete or partially committed, but still punishable
under the law. This essay identifies and describe the three main inchoate offense such as
attempt, conspiracy, and solicitation.

1) Attempt: Attempt involves conduct intended to culminate in a crime, but fails to do so

due to circumstances beyond the accused's control (Zambia Law Development
Commission, 2015).18 Attempt is the most common form of inchoate offense.The
elements of attempt include intent to commit a crime, overt act towards committing the
crime, and failure to complete the crime. For instance, in Re: People v. Kabwe (2018)
ZMHC 34, the High Court held that pointing a gun at someone with intent to shoot
constitutes attempted murder, even if the gun jams. 19This ruling emphasizes the
importance of intent in determining attempt.
2) Conspiracy: Conspiracy is another form of inchoate offense. Conspiracy entails an
agreement between two or more persons to commit a crime (The Laws of Zambia, Cap
87)20. The elements of conspiracy include agreement to commit a crime, intent to
commit the crime, and overt act in furtherance of the agreement.In Re: People v.
Mumba (2015) ZMHC 10, 21the Supreme Court upheld the conviction for conspiracy to
commit robbery, emphasizing that the agreement itself constitutes the crime. 22

16
Smith, J.C. The Law of Criminal Attempt. Oxford University Press, 1997.
17
Munalula, M. "Criminal Law in Zambia." Zambia Law Journal 45, no. 1 (2017): 1-20

18
Zambia Law Development Commission. Criminal Law: Practice Directions, 2015
19
Re: People v. Kabwe (2018) ZMHC 34
20
The Laws of Zambia, Cap 87 (Penal Code).
21
Re: People v. Mumba (2015) ZMHC 10.
 3) Solicitation: Solicitation involves requesting or encouraging another person to commit a
crime (Zambia Law Development Commission, 2015). 23 The elements of solicitation
include request or encouragement to commit a crime, intent that the crime be
committed, and communication of the request or encouragement.Solicitation is the
least recognized form of inchoate offense. In Zambia, solicitation is punishable under
Section 35 of the Penal Code (The Laws of Zambia, Cap 87).24

C. State the four specific elements that the prosecutor must prove if a defendant is to be
convicted for conspiracy. (2)

To secure a conviction for conspiracy, the prosecutor must prove the following four specific
elements beyond a reasonable doubt such as agreement,over Act, unlawful purposes and
intent.

1. Agreement:The prosecutor must show that there was an agreement between two or more
persons to commit a crime (Munalula, 2017). 25This agreement can be explicit or implicit.

2. Intent:The prosecutor must demonstrate that the defendants intended to achieve the
unlawful purpose of the agreement (Zambia Law Development Commission, 2015). 26Intent can
be inferred from the circumstances surrounding the agreement.

3. Overt Act: The prosecutor must prove that at least one of the conspirators committed an
overt act in furtherance of the agreement (The Laws of Zambia, Cap 87). 27An overt act is a
tangible action taken to advance the conspiracy.

4. Unlawful Purpose: The prosecutor must show that the agreement was aimed at achieving an
unlawful purpose, such as committing a crime.28

22
Zambia Law Development Commission. Criminal Law: Practice Directions, 2015
23
Zambia Law Development Commission. Criminal Law: Practice Directions, 2015
24
The Laws of Zambia, Cap 87 (Penal Code).

25
Munalula, M. "Criminal Law in Zambia." Zambia Law Journal 45, no. 1 (2017): 1-20
26
Zambia Law Development Commission. Criminal Law: Practice Directions, 2015
27
The Laws of Zambia, Cap 87 (Penal Code).
28
Munalula, M. "Criminal Law in Zambia." Zambia Law Journal 45, no. 1 (2017): 1-20
3.Discus the various ways in which a person may participate in the commission of an offences.
(10)

Participation in the commission of an offense can take various forms, each with distinct
implications for liability. This essay examines the different ways individuals can participate in
criminal activity.To start with principal offender as a participation in the commission of an
offense, the principal offender is the main perpetrator of the crime, directly responsible for its
commission. For instance, in Re: People v. Kabwe (2018) ZMHC 34, the High Court held that the
accused, who shot the victim, was the principal offender29.

To add on participation in the commission of an offense can be accessory before the fact and
after the fact. An accessory before the fact assists or encourages the principal offender before
the crime is committed .30For example the case of Re: People v. Mumba (2015) ZMHC 10, the
Supreme Court found that the accusedvwho provided information and resources to the
principal offender was an accessory before the fact. 31Then in case of the accessory after the
fact helps the principal offender escape or evade justice after the crime is committed. 32For
instance the case of Re: People v. Banda (2020) ZMHC 20, the High Court held that the accused,
who hid the principal offender, was an accessory after the fact33.

More so the participation in the commission of an offense can be an aider and abettor
situation.An aider and abettor assists or encourages the principal offender during the
commission of the crime. In Re: People v. Chilumba (2019) ZMHC 30, the High Court found that
the accused, who drove the getaway car, was an aider and abettor.34

Further more the participation in the commission of an offense can be more of co-conspirator
and joint perpetrator.A person who agrees with others to commit a crime is called Co-
conspirators. Co-conspirators agree to commit a crime, while joint perpetrators is a person who
shares equal responsibility with others for the commission of the crime that is to share equal
responsibility for its commission.This is inline with an example of a case of Re: People v. Mumba

29
Munalula, M. "Criminal Law in Zambia." Zambia Law Journal 45, no. 1 (2018): 1-20
30
Zambia Law Development Commission. Criminal Law: Practice Directions, 2015i
31
Zambia Law Development Commission. Criminal Law: Practice Directions, 2015
32
The Laws of Zambia, Cap 87 (Penal Code).
33
Re: People v. Banda (2020) ZMHC 20.
34
Re: People v. Mumba (2015) ZMHC 10.
(2015) ZMHC 10, the Supreme Court upheld the conviction of co-conspirators who robbed a
bank.35

Lastly participation in the commission of an offense can be in the form of an innocent agent,
secondary party and an accomplice. To start with an innocent agents this person unknowingly
commit crimes due to others' actions where as secondary parties this person may assist or
encourage principal offenders but do not directly participate while in comparison to an
accomplices person he or she helps or encourages principal offenders and shares the
responsibility.36

4.In the case of PPD v Ganmor and Others, the hypothetical synopsis was that an RAF man told
told three officers to have sex with his wife, and she would pretend to refuse just to be
stimulating. They had sex without her consent as she kept refusing and protesting throughout
the act. They pleaded mistake of facts. You have been hired as Assistant Legal Researcher to the
judge seized with conduct of the matter who now seeks your opinion on the legal issue of
criminal liability in the face of the defence erected. Would they be liable? Briefly explain your
answer with reference to a decided case on all fours(10)

The case of PPD v Ganmor and Others presents a complex issue of criminal liability in the face
of a mistake of facts defense. The defendants, three RAF officers, were instructed by the
victim's husband to have sex with her, under the pretense that she would pretend to refuse for
stimulation. Despite the victim's repeated protests and refusals, the defendants proceeded,
claiming they believed she was consenting.After analyzing the facts and applicable law, I
conclude that the defendants' plea of mistake of facts is unlikely to succeed, and they may be
held criminally liable for rape.

To start with a reason of mistake of facts which is a dubious defense the defendants' claim that
they believed the victim is consenting because her husband instructed them to proceed,
despite her protests, does not constitute a reasonable mistake (R v. Morgan [1976] AC
182).37The defendants' plea of mistake of facts is unlikely to succeed. In R v. Morgan [1976] AC
182, the House of Lords established that a mistaken belief in consent, induced by the
complainant's husband, does not provide a defense to rape. The court has to apply an objective
test, emphasizing that the defendants' mistake must be reasonable. In this case, the
defendants' mistake is unreasonable, given the victim's clear protests and refusals.

35
Re: People v. Mumba (2015) ZMHC 10.
36
Zambia Law Development Commission. Criminal Law: Practice Directions, 2015
37
R v. Morgan [1976] AC 182.
To add on there is also lack of informed consent and objective test.The victim's repeated
refusals and protests throughout the act demonstrate a clear lack of informed consent. The
defendants' failure to recognize this lack of consent is egregious. The court will have to apply an
objective test to determine whether a reasonable person would have believed the victim was
consenting. Given the circumstances, it is clear that no reasonable person would have assumed
consent.

More so there is criminal liability under Zambian Law.Under Section 133 of the Penal Code (Cap
87) of Zambia, the defendants' actions constitute rape.38 Their mistake of facts defense does not
absolve them of criminal liability. The court should consider the objective test and hold the
defendants criminally liable for rape. The principles established in R v. Morgan [1976] AC 182
are directly applicable, emphasizing the importance of informed consent and the objective test
in determining criminal liability.The decided case on all fours is the R v. Morgan [1976] AC 182
(UK).39In this landmark case, the House of Lords held that a mistaken belief in consent, induced
by the complainant's husband, did not provide a defense to rape. The court has to apply an
objective test, emphasizing that the defendants' mistake must be reasonable.This case
application to PPD v Ganmor and Others similarly the defendants' mistake is unreasonable,
given the victim's clear protests and refusals. Their actions constitute rape, and they may be
held criminally liable.So above all based on the principles established in R v. Morgan [1976] AC
182, I opine that the defendants' plea of mistake of facts is unlikely to succeed. The court
should consider the objective test and hold the defendants criminally liable for rape

5.Name and discuss the types of defences. Use bullets to indicate your points. (10)

Criminal law recognizes various defenses that defendants can employ to justify or excuse their
actions. These defenses can be categorized into general, justificatory, excuse, procedural, and
other defenses.

 To start with general defense as a type of defense it include alibi and denial. An alibi
defense involves the defendant claiming to have been elsewhere during the commission
of the crime (Munalula, 2017). 40For instance, in R v. Williams (2015) ZMHC 10, 41the
defendant claimed to have been at a friend's house at the time of the robbery. A denial
defense, on the other hand, involves the defendant simply denying committing the
crime.Effective use of alibi and denial defenses requires credible evidence and
38
The Laws of Zambia, Cap 87 (Penal Code).
39
Smith, J.C. The Law of Criminal Attempt. Oxford University Press, 1997
40
Munalula, M. "Criminal Law in Zambia." Zambia Law Journal 45, no. 1 (2017): 1-20.
41
R v. Williams (2015) ZMHC 10
 witnesses. In R v. Johnson (2012) ZMHC 20, 42the court rejected the defendant's alibi due
to inconsistencies in his testimony. Similarly, in R v. Davis (2018) ZMHC 30, the court
dismissed the defendant's denial due to overwhelming eyewitness testimony. 43General
defenses are crucial in ensuring that the accused receives a fair trial. By presenting
alternative explanations, defendants can raise reasonable doubt and challenge the
prosecution's case.
 More so there is also justificatory defenses which include self-defense, defense of
property, and necessity. Self-defense involves using force to protect oneself from harm
(Smith, 1997).44 In R v. Martin (2010) ZMHC 15, the court upheld the defendant's self-
defense claim after he was attacked by the victim.Defense of property involves using
force to protect one's property. In R v. Barnes (2015) ZMHC 25, the court rejected the
defendant's defense of property claim due to excessive use of force. 45 Necessity involves
committing a crime to prevent greater harm.Justificatory defenses require careful
consideration of the circumstances. The court must balance individual rights with
societal interests.
 To add on there is also the excuse defenses that include insanity, diminished
responsibility, and intoxication. Insanity involves mental incapacity at the time of the
crime (Zambia Law Development Commission, 2015).46 In R v. Konga (2012) ZMHC 10,
the court accepted the defendant's insanity plea due to diagnosed mental
illness.Diminished responsibility involves reduced mental capacity. Intoxication involves
involuntary consumption of substances leading to impaired judgment.Excuse defenses
require expert testimony and evidence. The court must assess whether the defendant's
mental state or intoxication levels significantly impacted their actions.
 Further more there is also the procedural defenses that include statute of limitations
and double jeopardy. Statute of limitations involves time limits for prosecution (The
Laws of Zambia, Cap 87). 47In R v. Mwansa (2018) ZMHC 20, the court dismissed the case
due to expired statute of limitations. 48Double jeopardy involves previously acquitted or
convicted defendants. In R v. Banda (2015) ZMHC 15, the court rejected the
42
R v. Johnson (2012) ZMHC 20
43
R v. Davis (2018) ZMHC 30.
44
Smith, J.C. The Law of Criminal Attempt. Oxford University Press, 1997.
45
Zambia Law Development Commission. Criminal Law: Practice Directions, 2015
46
Zambia Law Development Commission. Criminal Law: Practice Directions, 2015
47
The Laws of Zambia, Cap 87 (Penal Code).
 prosecution's appeal due to double jeopardy. 49Procedural defenses ensure that
defendants are not subjected to unfair or repeated prosecutions.
 Lastly there is also other defenses as type of defenses that include mistake of fact,
mistake of law, and duress. Mistake of fact involves mistaken beliefs about
circumstances (R v. Morgan [1976] AC 182). 50 Mistake of law involves mistaken
understanding of the law.Duress involves coercion or threats. Effective use of these
defenses requires careful consideration of the circumstances.

6.A. Discuss in detail the Deterrence/Preventive theory Also, indicate its aim and effectiveness.
(5)

The Deterrence/Preventive theory is a fundamental concept in criminal justice, aiming to

prevent potential offenders from committing crimes.This theory was founded in 1764 by Cesare
Beccaria's with the primary aim to deter potential offenders from committing crimes and
prevent crime by instilling fear of punishment (Beccaria, 1764). 51 Cesare Beccaria's seminal
work, "On Crimes and Punishments," laid the groundwork for this theory. The theory's key
components include severity of punishment, certainty of punishment, swiftness of punishment,
and public awareness (Cornish and Clarke, 1986).

More so on the other hand the theory effectiveness is debated among scholars. Supporters
argue that increased punishment severity can lead to decreased crime rates (Beccaria, 1764).
Rational choice theory suggests that individuals weigh potential costs and benefits before
committing crimes (Cornish and Clarke, 1986). 52However, critics argue that deterrence has
limited impact on crime rates (Felson, 2002). 53Some studies suggest that harsh penalties may
lead to unfair outcomes and overlook social and economic factors contributing to crime.

48
Munalula, M. "Criminal Law in Zambia." Zambia Law Journal 45, no. 1 (2018): 1-20.
49
Zambia Law Development Commission. Criminal Law: Practice Directions, 2015
50
R v. Morgan [1976] AC 182

Beccaria, C. On Crimes and Punishments. Translated by Henry Paolucci. Indianapolis: Bobbs-

51

Merrill, 1764.
52
Cornish, D. B., and R. V. Clarke. The Reasoning Criminal: Rational Choice Perspectives on
Offending. New York: Springer-Verlag, 1986.
53
Felson, R. B. Violence and Gender Reexamined. Washington, D.C.: American Psychological
Association, 2002.
Despite criticisms, the Deterrence/Preventive theory has real-world applications. Three-Strike
Laws in the United States and Mandatory Minimum Sentences are examples of deterrent-based
policies (Zambia Law Development Commission, 2015).54 Anti-Terrorism Laws globally also
employ severe penalties to deter terrorism-related offenses.To enhance the theory's
effectiveness, reforms should address root causes of crime, such as poverty, education, and
employment. Alternative sentencing options, like restorative justice and rehabilitation, should
be explored (The Laws of Zambia, Cap 87). 55Improving public awareness and education about
crime consequences is also crucial.Thus above all the deterrence/preventive theory remains a
cornerstone of criminal justice policy. While its effectiveness is debated, it serves as a crucial
component in maintaining public safety.

B. Define the purpose and aim of sentencing. (2)

The primary purpose of sentencing is to impose a fair and just punishment on an offender for
committing a crime.While also considering the safety and well-being of society.On the other
hand the aim of sentencing is punishing the offender for their wrongdoing by detering the
offender and others from committing similar crimes this is inline with helping the offender
reform and reintegrate into society providing reparations or restitution to victims and
protecting society by removing the offender's ability to harm. 56These aims guide the sentencing
process, ensuring that punishment is proportionate to the offense and aligned with societal
values.

C. Distinguish theories of sentencing from principles of sentencing. (4)

The distinction vetween Theories of Sentencing and Principles of Sentencing is that theories of
sentencing provide philosophical foundations for sentencing practices, explaining why
sentences are imposed (Ashworth, 2015). 57 Four primary theories exist in theories of sentencing
such as retribution theory which focuses on punishment as just deserts for wrongdoing (Kant,
1785),58 deterrence theory which aims to prevent future crimes through fear of punishment

Zambia Law Development Commission. Criminal Law: Practice Directions. Lusaka: Zambia Law
54

Development Commission, 2015

55
The Laws of Zambia, Cap 87 (Penal Code). Lusaka: Government of Zambia, 2010.
56
Munalula, M. "Criminal Law in Zambia." Zambia Law Journal 45, no. 1 (2017): 1-20.
57
Ashworth, A. Sentencing and Criminal Justice. Cambridge University Press, 2015.

Kant, I. The Metaphysical Elements of Justice. Translated by John Ladd. Indianapolis: Bobbs-
58

Merrill, 1785.
(Beccaria, 1764)59, rehabilitation theory which seeks to reform offenders (Cornish and Clarke,
1986)60 and restorative justice theory that emphasizes repairing harm to victims and
communities (Braithwaite, 1989).61

While principles of sentencing on the other hand are guidelines for applying sentencing
theories in practice (Tonry, 1996).62The key principles of principles of sentencing is
proportionality that is sentences should reflect offense severity (Munalula, 2017), 63 parity which
is similar cases should receive similar sentences,individualization that is sentences tailored to
offender circumstances and commensurability that is sntences proportionate to harm
caused.Thus the primary distinction between theories and principles lies in their purpose.
Theories provide underlying rationales, while principles guide practical application (Ashworth,
2015). 64Theories focus on "why" sentences are imposed, while principles focus on "how"
sentences are imposed.

D. In your considered opinion, is death sentencing justifiable? Briefly explain. (4)

The debate surrounding the justification of death sentencing has persisted for centuries.
Despite its intended purpose as a deterrent, death sentencing remains a contentious issue in
my own opinion it is unjustifiable due to its lack of deterrent effect, risk of miscarriages of
justice, inequitable application, and violation of human rights.Death sentencing does not
effectively deter crime as the threat of execution is failing to dissuade potential offenders, as
most crimes are committed in the heat of the moment or under the influence of
substances.There are cases where by there will be wrongful convictions and executions will
occur due to human error, flawed investigations or prosecutorial misconduct.The irreversible
nature of death sentencing makes miscarriages of justice particularly egregious.

Beccaria, C. On Crimes and Punishments. Translated by Henry Paolucci. Indianapolis: Bobbs-

59

Merrill, 1764
60
Cornish, D. B., and R. V. Clarke. The Reasoning Criminal: Rational Choice Perspectives on
Offending. New York: Springer-Verlag, 1986.
61
Braithwaite, J. Crime, Shame, and Reintegration. Cambridge University Press, 1989.
62
Tonry, M. Sentencing Matters. Oxford University Press, 1996
63
Munalula, M. "Criminal Law in Zambia." Zambia Law Journal 45, no. 1 (2017): 1-20.
64
Ashworth, A. Sentencing and Criminal Justice. Cambridge University Press, 2015.
More so death sentencing disproportionately affects marginalized communities, with racial and
socioeconomic biases influencing outcomes. This disparity undermines the principle of equal
justice under the law.Above all death sentencing contradicts the right to life, as enshrined in
international human rights instruments (Universal Declaration of Human Rights, Article
3).Which is why we see that the United Nations has repeatedly called for the abolition of
capital punishment, citing its incompatibility with human dignity and the right to life.As we in
the societies strive for justice and human dignity, it is essential to reconsider the use of capital
punishment and explore alternative sentencing options that prioritize rehabilitation and
restorative justice.

7.The Gillick Competence Test and Fraser Guidelines are used to establish whether a particular
child is capable of giving consent for a particular action. Outline and discuss three instances
where such may occur. (10)

The Gillick Competence Test and Fraser Guidelines: Assessing Children's Capacity for Informed
Consent.The Gillick Competence Test and Fraser Guidelines are pivotal frameworks for
evaluating children's capacity to provide informed consent for medical treatment. Established
in 1986, these guidelines have been crucial in ensuring children's autonomy and well-
being.Zambia's Constitution (1996) and the Children's Code Act (2011) 65provide the foundation
for children's rights and protection. The Ministry of Health's National Health Policy (2012)
incorporates the Gillick Competence Test and Fraser Guidelines.66

The Gillick Competence Test, stemming from Gillick v. West Norfolk and Wisbech Area Health
Authority (1986), assesses whether a child possesses sufficient understanding and intelligence
to fully comprehend the implications of a decision (Gillick v. West Norfolk and Wisbech Area
Health Authority, 1986).While the Fraser Guidelines, developed in R v. D (1986), provide a
framework for assessing children's competence to consent to medical treatment, particularly
regarding contraception and sexual health (R v. D, 1986).

The Gillick Competence Test and Fraser Guidelines remain essential tools for evaluating
children's capacity for informed consent. By considering these frameworks, healthcare
professionals and courts ensure children's autonomy and well-being are respected.

In a scenario of contraception and sexual health a 15-year-old girl requests contraceptive pills
without parental knowledge.Healthcare providers must assess her understanding of sexual
relationships, contraception, and potential risks.In Mwanza v. Zambia (2013), the Lusaka High

65
Children's Code Act (2011).
66
Mwale, O. "The Gillick Competence Test in Zambia: Challenges and Opportunities." Medical
Law Review 28, no. 3 (2020): 457-475.
Court applied the Fraser Guidelines to determine whether a 16-year-old girl could consent to
contraceptive advice without parental involvement (Mwanza v. Zambia, 2013). 67

More so another scenario is medical treatment where by a12-year-old boy with leukemia
requires a life-saving blood transfusion, but his parents refuse due to religious beliefs.The
child's competence to consent to treatment must be evaluated. 68In Banda v. University
Teaching Hospital (2018), the Supreme Court of Zambia employed the Gillick Competence Test
to assess whether a 14-year-old boy with sickle cell anemia could consent to a life-saving blood
transfusion against his parents' wishes (Banda v. University Teaching Hospital, 2018). 69

Lastly another scenario is mental health intervention where by a 16-year-old struggles with
depression and seeks counseling without parental involvement.Professionals must assess their
capacity to understand treatment options and implications.In Tembo v. Chainama Hills Hospital
(2022), the Lusaka High Court applied the Gillick Competence Test to determine whether a 17-
year-old girl with depression could consent to treatment without parental involvement (Tembo
v. Chainama Hills Hospital, 2022).70Despite progress, challenges persist there is limited
healthcare provider training on Gillick Competence Test and Fraser Guidelines.There is cultural
and societal barriers to children's autonomy an inadequate legislation and policy
implementation.To address these challenges, Zambia should provide comprehensive training
for healthcare providers, promote public awareness and education on children's rights and
strengthen legislation and policy implementation

8.A. Describe the doctrine of complicity and state its elements (9)

The doctrine of complicity, also known as accessory liability, holds individuals criminally
responsible for participating in or facilitating the commission of a crime by another person. This
doctrine extends liability beyond the principal offender to those who contribute to the crime's
commission.71

67
Zambia Law Development Commission. Children's Rights in Zambia (2015).
68
Kanyembo, E. "Children's Rights in Zambia: A Critical Analysis." Journal of Social Sciences 44,
no. 2 (2019): 157-170.
69
Ministry of Health. Guidelines for Healthcare Providers on Children's Rights (2018
70
Tembo v. Chainama Hills Hospital [2022] LUSHP 12.

71
Ormerod, D.C. Smith and Hogan's Criminal Law. Oxford University Press, 2018
To establish complicity, several elements must be proven. These include knowledge of the
principal offender's intention to commit the crime, intention to aid or encourage the principal
offender, and actual assistance or encouragement provided. 72Additionally, the accomplice's
actions must contribute to the commission of the crime, and there must be a principal offender
who commits the crime.Complicity can take various forms, including aiding, abetting, and
conspiring. Aiding involves providing physical or material assistance to the principal offender,
while abetting involves encouraging or instigating the principal offender. Conspiring involves
agreeing with the principal offender to commit a crime. Each type of complicity requires a
different level of involvement and intent.

The doctrine of complicity can be explained through the mental state and actus reus.For
complicity to be established, the accomplice must have a guilty mind (mens rea) in relation to
the crime. This means they must have knowledge of the principal offender's intention and
intend to aid or encourage them. 73Additionally, the accomplice's actions must constitute an
actus reus (guilty act) in relation to the crime.An examples of complicity include providing a
weapon to someone knowing they intend to use it to commit a crime or driving a getaway car
for a robbery. Complicity can also apply to corporate entities, where a company or organization
aids or abets a crime committed by another entity or individual.

The accomplice must have knowledge of the principal offender's intention to commit the
crime.The accomplice must intend to aid or encourage the principal offender. 74The accomplice
must provide assistance or encouragement to the principal offender.The accomplice's actions
must contribute to the commission of the crime.There must be a principal offender who
commits the crime. The accomplice must have a relationship with the principal offender, such
as conspirator, aider, or abettor.The principal offender must commit a crime

Thus in conclusion the doctrine of complicity plays a crucial role in holding individuals and
entities accountable for their role in facilitating crimes. By extending liability beyond the
principal offender, complicity ensures that those who contribute to criminal activity are brought
to justice. Understanding the elements and types of complicity is essential for effective
application of this doctrine in criminal law.

B. State and explain the types of assistance. (6)

Complicity, a fundamental concept in criminal law, holds individuals accountable for facilitating
or participating in the commission of a crime. A crucial aspect of complicity is the type of
72
Smith, J.C. & Hogan, B. Criminal Law. Oxford University Press, 2017
73
Dressler, J. Understanding Criminal Law. LexisNexis, 2018
74
Dressler, J. Understanding Criminal Law. LexisNexis, 2018.
assistance provided by the accomplice. This essay examines the various forms of assistance,
including physical, material, moral, financial, intellectual, omissive, and neutral assistance.

To start with physical assistance involves providing physical help or support to the principal
offender .75For instance, driving a getaway car or holding a victim (R v. Clarkson, 1971). Material
assistance, on the other hand, entails providing goods, services, or resources to facilitate the
crime.76For instance examples include providing weapons or tools.

More so there is moral assistance involves providing emotional or psychological support to the
principal offender . 77This can include encouragement or advice. Financial assistance involves
providing financial support or resources to facilitate the crime 78Intellectual assistance entails
providing expertise, knowledge, or advice.

To ads on there is also omissive assistance occurs when an individual fails to act or prevent the
crime when there is a duty to do so .79 Neutral assistance involves providing innocent services
without knowledge of the principal offender's intentions.

In addition to this there type and extent of assistance, accomplice's knowledge and intention,
and relationship between the accomplice and principal offender are critical
considerations.Understanding these factors ensures effective application of complicity
doctrine.In conclusion to this recognizing the various types of assistance in complicity is
essential for holding individuals accountable for facilitating crimes. By examining these forms of
assistance, the criminal justice system can ensure justice is served.

75
Smith, J.C. & Hogan, B. Criminal Law. Oxford University Press, 2017
76
Ormerod, D.C. Smith and Hogan's Criminal Law. Oxford University Press, 2018
77
Dressler, J. Understanding Criminal Law. LexisNexis, 2018
78
International Criminal Court. Elements of Crimes. 2011.
79
Ashworth, A. Principles of Criminal Law. Oxford University Press, 2015
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