Elements of law for everybody (Part I)

There is no shortage of non-governmental organisations (NGOs) advising people about their rights. Some advise people how to respond to action taken against them by police officials while others advise them about their rights as inmates.

Hardly any organisation exists, at least to my knowledge,that advises people about their duties. Former president the late Bingu wa Mutharika at one time proposed that just as there is a code of rights, there should be a code of duties. I do not remember anyone supporting him verbally or in writing. There was apparent apprehension that he might have in mind the duties that were imposed on people during the Kamuzu/MCP era through the four cornerstones of unity, loyalty, obedience and discipline.

But in principle, Bingu was right. Where people have rights, they also have duties; where people have no obligations, lawlessness prevails.

The doctrine called Rule of Law means more than that the government does its business according to the law, and that no one should be punished except for contravening a law. Rule of law also means that citizens should conduct themselves and their affairs according to laws. For a people to abide by the laws, they must have some relevant knowledge. Hence, this write-up whose objective is to summarise elements of English law on which most countries in English speaking Africa have based their Penal Codes.

What is law? The term law is used in a variety of ways. There is law of physics, economics, nature, science and so on. Here, we are to deal with the law that is defined as a rule of human conduct which is imposed upon and enforced among people of a given State.

Through law enforcement, justice is expected to prevail in a society or community. But what is justice? This is one of the most controversial conceptions in the sphere of philosophy and law. A sophist in ancient Greece defined justice as the pleasure of the man in power. In other words, it is the ruler of the land who determines what justice means.

This may sound like quibbling but there was an element of truth in what the sophist said. What is justice under a dictatorship differs from justice under democracy. Under dictatorship, justice is just what a dictator wants it to be. Under genuine democracy, rulers must interpret and administer justice according to the understanding of the majority of the people, otherwise next time the electorate will vote them out of power.

All mature people should have at least modicum knowledge of laws in case they contravene them, get arrested, fined or jailed. Those who say I do not know that doing this is illegal are told that ignorance of the law is no defence.

The first thing that we must know is what constitutes an illegal act or behaviour, what constitutes criminal liability? Two elements determine criminal liability, they are given in Latin as Actus reus and mens rea.

Actus reus is the prohibited thing. If someone either by physical action or behaviour has done the prohibited thing, then he has committed a crime for which the police must arrest him and take him to court.

The following may constitute conduct the police and the courts would deem as a crime:

(i) a physical act such as shouting at someone

(ii) words in such offences as incitement, conspiracy, blackmail

(iii) an omission where there is a legal duty to act either at common law or statute or by undertaking. For example, a parent has a duty to provide food and medical attention for his or her children.

Acting or failing to act as described above per se does not constitute a crime unless the person who has acted or behaved in these manners had a guilty conscience, was aware that doing or omitting to do such a thing was wrong and might be illegal. A mature and sane person knows almost from instinct that theft is wrong, so is murder. This guilty mind or criminal intention is what is called mens rea. Thus, if you meet someone and kill him and take away his money, you have committed the crime called murder. But suppose you are a hunter in a jungle, you see something like an animal and shoot it, when you go there to pick it up, you realise you have killed a human being, you have not committed the crime called murder because you have not killed that person intentionally but by mistake.

To be continued…..