ZAMBIAN OPEN UNIVERSITY OF

SCHOOL OF LAW

NAME : Bright Keembe Jalila

COMPUTER NUMBER : 22110235

PROGRAM : Bachelor of Laws (LLB)

YEAR OF STUDY : First Year

SEMESTER : One

COURSE : General Principles of Criminal Law 1

COURSE CODE : LL 131

ASSIGNMENT NUMBER : Two

DUE DATE : 23rd April, 2021

LECTURER : Dr. Munyonzwe Hamalengwa

CONTACT : +260 977 or 955 877 026

The concepts of Actus Reus and Mens Rea are the pillars of Criminal Law. Using Professor
Simon Kulusika’ s book "Criminal Law in Zambia" particularly but not limited to the chapter on
"gender-based violence" but emphasizing this chapter and on "Money Laundering" do you think
the concept of Mens Rea is present in cases of gender-based violence and other crimes that you
have studied?
This essay, largely, is going to discuss whether the concept of Mens Rea is present in cases of
gender-based violence and other crimes according to the arguments by Professor Simon Kulusika
in his book "Criminal Law in Zambia." The paper will also expound the concepts of Actus Reus
and Mens Rea being the pillars of Criminal Law. In buttressing the answers using the said book,
there will be a bit of biased attention on the “Gender-Based Violence” and "Money Laundering"
chapters. Relevant precedents and other materials or authorities to the subject matter will be
cited.

Talking about the concepts of Actus Reus and Mens Rea as the pillars of Criminal Law, would
be less appreciated without, even a little effort to unbundle both criminal law and crime.
Criminal law is a branch of public law that study crime. Unlike in civil claims where the
aggrieved party institutes proceedings in the court of law, in criminal jurisdiction, the state
through the Public Prosecution Authority brings cases to court. Criminal law proscribes conduct
perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and
moral welfare of people inclusive of one's self. Criminal law includes the punishment and
rehabilitation of people who violate such laws. 1 Of course, rehabilitation still sounds a new
phenomenon, otherwise the widely understood consequence of violating a written law is jail
imprisonment.

One cannot be sent to jail for violating a law which is not written somewhere. The law is set out
to prohibit some conducts that are detrimental to welfare of the society. At the same time, the
law protects a conduct by a person or person done in agreement with the requirements of the law.
A good example on this point can be found in the landmark decision in the case Christine
Mulundika and 7 Others v The People.2 The appellant challenged the constitutionality of certain
provisions of the Public Order Act Cap 104, especially section 5(4). The challenge followed on
the fundamental freedoms and rights guaranteed by arts 20 and 21 of the Constitution. A
subsidiary challenge related to the exemption of certain office-holders from the need to obtain a
permit. In the holding, it was said that section 5(4) of the Public Order Act Chapter 104
contravened articles 20 and 21 of the Constitution and were declared null and void. The appellant

1
https://en.wikipedia.org/wiki/Criminal_law (retrieved on 6th April, 2021)
2
SCZ Appeal No 5 of 1995
had evoked their constitution rights in relation to articles 20 and 21 of the Constitution. 3 The
decision of the court in essence protected the appellant from being arbitrary stopped from doing
that which was not at variance with the law.

The prohibited acts must always be in the statute, by law or any other codified law applicable in
a given state. The law is designed in a way that a suspect or accused’s conduct may be blame
worth through omission or commission. This simply means, omitting to do that which the law
requires you to do. For instance, misprision of treason, this occurs if a person knows or
reasonably suspects that someone has committed treason but does not inform the proper
authorities within a reasonable time.4 This offense is committed under section 44 of the Penal
Code5 where it provides that, “any person who…. knowing that any person intends to commit
treason, does not give information thereof with all reasonable dispatch to the President, the Vice-
President, a Minister, a Deputy Minister, an Administrative Officer or a police officer, or use
other reasonable endeavours to prevent the commission of the offence; is guilty of the felony
termed misprision of treason and is liable to imprisonment for life.” This emphasizes the point
that, at law, an omission to do what the law requires you to do is actually a commission of an
offense. The case of The People v Edward Jack Shamwana and 12 Others 6 elucidates the
commission of this offence. We have alluded to the effect that there must be conduct which is
proscribed by law for which one can be convicted for violating it. This conduct is known to
lawyers as the actus reus.7 Actus reus is a Latin maxim which means, “the guilty act” or “the
proscribed conduct.” It must be a harmful conduct and it has to be external to the accused
person’s thoughts or intentions. The prohibited conduct must be identified by the definition of
the offence in the legislation.8 For instance, in a murder case committed under section 200 of the
Penal Code9 which provides that, “any person who of malice aforethought causes the death of
another person by an unlawful act or omission is guilty of murder.” From the above provision,
what we can say is outside the thoughts or intention of the perpetrator is the act of causing the

3
The Constitution of Zambia Act, Chapter 1 of the Laws of Zambia (1996)
4
Elizabeth A. Martin. (2001). Oxford Dictionary of Law (5th ed.).
5
The Penal Code Act Chapter 87 of the Laws of Zambia (As amended by No. 6 of 1965)
6
(1982) Z.R. 122 (H.C.)
7
Kulusika, S. (2020). Criminal Law in Zambia: Doctrine Theory and Practice. Lusaka: Chribwa Publishers
8
ibid
9
The Penal Code Act Chapter 87 of the Laws of Zambia
death of another person. It may be by shooting using a gun or stabbing using a knife or hitting
using a stick and so on. This is good example of what this element, actus reus is concerned with.

However, the law puts a proviso that an act alone is insufficient to secure conviction of a suspect.
His mind should be guilty. This is what is explained by the maxim “mens rea.” If a person
commits an offense while in a situation where he is incapable of controlling his mind and
comprehending what is going on, say in a state of being insane, cannot be criminally liable. In
this, the actus reus element may be present while the mens rea not. The mens rea will require him
to be, at the time of the commission of the offense, have the malice aforethought or intention to
commit the offence. The phrases actus reus and mens rea are derived from the Latin maxim,
“actus non facit reum nisi mens sit rea” which means that there cannot be such a thing as legal
guilt where there is no moral guilt. 10 In Haughton v Smith,11 Lord Hailshamn said that the Latin
maxim means “an act does not make a man or a woman guilty of a crime, unless his or her mind
is also guilty.” However, defense for insanity need to be qualified through expert evidence
demonstrating that the accused person is indeed or was at the time he is alleged to have
committed the offence actually in the state of insanity. In the case Tony Manganda Kwiimbe v
The People,12 the applicant, a court clerk, was charged with theft by public servant involving
K270.51; which money he received for purposes of paying the local court staff. However, the
staff were not paid and he failed to account for the money. He pleaded insanity and the
magistrate made a special finding under section 167 of the Criminal Procedure Code and
remanded him in custody at the President's pleasure. He sought leave to appeal against the
finding and the State filed a cross-appeal. In delivering the judgment, Judge Cullinan, J.S said
sufficient medical or scientific evidence supporting the defense that the accused was mentally
incapacitated is required to displace the presumption of mental capacity. The accused's bald word
cannot suffice.

At this point, having defined criminal law and the elements of crime, the definition of crime will
be summarized as an act (or sometimes a failure to act) that is deemed by statute or by the
common law to be a public wrong and is therefore punishable by the state in criminal

10
Stephen, J. F. (1883). History of Criminal Law of England. Oxford: (Vol. 11 OUP) 94
11
(1975) AC 476 at 491, H1
12
(1982) Z.R. 32 (S.C.)
proceedings. Every crime consists of an actus reus accompanied by a specified mens rea (unless
it is a crime of strict liability), and the prosecution must prove these elements of the crime
beyond reasonable doubt. Some crimes are serious wrongs of a moral nature (e.g. murder or
rape); others interfere with the smooth running of society (e.g. parking offences). Most
prosecutions for crime are brought by the police (although they can also be initiated by private
people); some require the consent of the Attorney General. The punishments for a crime include
death (for murder), life imprisonment (e.g. for treason, aggravated robbery), imprisonment for a
specified period, suspended sentences of imprisonment, conditional discharges, probation, and
fines. Some crimes may also be civil wrongs, for example, theft and criminal damage are crimes
punishable by imprisonment as well as torts for which the victim may claim damages.13 In Board
of Trade v. Owen,14 the House of Lords concluded that ‘a crime is an unlawful act or default
which is an offence against the public and renders the person guilty of the act liable to legal
punishment.

Our contemporary world is fogged with among others but not limited to, challenges of increasing
incidents of Gender Based Violence crimes. Zambia has not been spared. Giving statistical
information on Gender Based Violence cases in Zambia on 9 th November, 2020 for the year, the
Zambia Police Spokesperson Esther Katongo told the nation that cases of Gender Based
Violence (GBV) had risen to 7,640 countrywide in the third quarter of 2020 compared to 6,788
recorded during the same period in 2019. She said there was an increase of 852 translating into
19.8 percent of which she said the children came out as the main victims where girls’ victims
were more than the boys.15 In April 2011, Zambia passed one of the most comprehensive laws on
gender-based violence in the Southern African Development Community - SADC region, the
Anti-Gender Based Violence Act No. 1 of 2011. The Act defines gender-based violence as “any
physical, mental, social or economic abuse against a person because of that person’s gender.”
The Act endeavours to particularize what constitutes Gender Based Violence as violence that
results in or is likely to cause physical, sexual or psychological harm or suffering to a person,
including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in
public or private life; and, actual or threatened physical, mental, social or economic abuse that
13
Elizabeth A. Martin. (2001). Oxford Dictionary of Law (5th ed.).
14
(1957) AC 60 19
15
https://www.lusakatimes.com/2020/11/09/cases-of-gender-based-violence-have-risen-risen-by-19-8-in-zambia-
this-year (retrieved on 6th April, 2021)
occurs in a domestic relationship. But, the punishment of the perpetrators of gender-based
violence is dealt with under the Penal Code, the Criminal Procedure Code and other relevant
Acts of Parliament of Zambia.

The great deal of this paper is also to discuss whether the concept of Mens Rea is present in
cases of gender-based violence and other crimes according to the arguments by Professor Simon
Kulusika in his book "Criminal Law in Zambia." We have already in the above and earlier
paragraphs discussed what is mens rea as element of a crime. Now, we are delving into showing
whether there is mens rea in cases of gender-based violence. Examples of gender-based violence
cases include but not limited to: hostile attitude; social and economic deprivation; sexual
violence; physical violence; indecent assault. The question whether there is mens rea in gender-
based violence crimes or not persuades to, earlier before, give even a brief explanation on strict
liability. Discussion on actus reus and mens rea have shown that most crimes require proof that
the accused person had mens rea (malice aforethought or intention) at the commission of the
unlawful act or omission. It is also correct to assert that some crimes require no mens rea. These
offences are described as strict liability offences.16 Again, in other situations, the absence of
mens rea is so critical that courts would not convict. In the case Sudan Government v. Mohamed
Ahmed Mohamed Mohamedein,17 the accused while walking in the night in the place known to
be haunted by a ghost that appeared as man, saw a figure like a man. He called for a greeting but
there was no response. He concluded he had met the ghost. Using a stick, he bit the “ghost” until
at the end it was discovered it was a human being he killed. It he was held that the accused had
no intention to kill a person as he had a reasonable belief that he had encountered a ghost.

In a gender-based violence type of hostile attitude directed to a person because of that person’s
gender, where one party, in the household situation conducts oneself in unacceptable manner
towards the other by making abusive, degrading remarks or gestures and in some extents threaten
to inflict severe punishment on the victim, the proof of utterances of such remarks or gestures
and threats that cause apprehension are adequate mens rea for the commission of the offence.

16
Kulusika, S. (2020). Criminal Law in Zambia: Doctrine Theory and Practice. Lusaka: Chribwa Publishers
17
(1947)
In social and economic deprivation, which is where a partner, whether male or female, imposes
restrictions on the other partner not to socialize with others or restrict the partner’ s liberty to
communicate. Economic deprivation can extend to neglecting to provide necessaries to children
or vulnerable persons or denying a partner from owning property or engaging in gainful
economic activities. The imposing of restrictions and neglecting to provide necessaries to the
people who cannot manage to do so for themselves are the mens rea. Section 169 of the Penal
Code18 provides that, “any person who, being the parent or guardian or other person having the
lawful care or charge of any child of tender years and unable to provide for itself, refuses or
neglects to provide (being able to do so) sufficient food, clothes, bedding and other necessaries
for such child, so as thereby to injure the health of such child, is guilty of a misdemeanour.”

There are many species of sexual violence recognized as such in law. The offence of indecent
assault is one of them. It is proscribed in section 137 of the Penal Code. 19 It is committed by any
person, male or female by unlawfully and, indecently assault any child or other person, woman
or man. No need for proof of violence, mere touching suffices, and in the touching lies the
intention. In the case The People v. Mathews Miti 20 (unreported) the accused person aged
twenty-four years, enticed a seven-year-old girl to his house by promising to give her ten
kwacha. While in the house he molested the girl but failed to give her the money he had
promised. In this case, the mens rea in molesting.

The next gender-based violence crime we are discussing is incest, which is a typical criminal
offence which occurs in situations of family relationships or between persons where marriage is
prohibited due to blood relationship.21 Incest is committed under section 159 of the Penal Code 22.
Subsection one provides that, “any male person who has carnal knowledge of a female person
who is to that person’s knowledge, his grandmother, mother, sister, daughter, granddaughter,
aunt or niece, commits a felony and is liable, upon conviction, for a term of not less than twenty
years and may be liable to imprisonment for life.” Subsection two provides that, “any female
person who has carnal knowledge of a male person who is to that person’s knowledge, her

18
The Penal Code Act Chapter 87 of the Laws of Zambia
19
ibid
20
(2009), 11-B- 339/09
21
Kulusika, S. (2020). Criminal Law in Zambia: Doctrine Theory and Practice. Lusaka: Chribwa Publishers
22
The Penal Code Act Chapter 87 of the Laws of Zambia
grandfather, father, brother, son, grandson, uncle or nephew, commits a felony and is liable,
upon conviction, for a term of not less than twenty years and may be liable to imprisonment for
life.” In this offence, the mens rea is in the carnal knowledge done. In the Mangoma v People 23
the appellant was tried and convicted by the Subordinate Court of the offence of Incest contrary
to Section 159 of the Penal Code, Chapter 87 of the Laws of Zambia. Particulars of the offence
were that on a date unknown but between 1 st January, 2010 and 22nd September, 2010 at
Livingstone in the Livingstone District of the Southern Province of the Republic of Zambia, the
appellant had unlawful carnal knowledge of a named girl who, to his knowledge, was his
daughter. He was subsequently sentenced by the High Court to a term of 30 years imprisonment
with hard labour. The mens rea was the unlawful carnal knowledge and the prisoner’s knowledge
of the relationship that existed between him and the victim.

Defilement has closely been associated with gender-based violence as it is in most cases directed
against a vulnerable person within a household. It occurs where a person of the age of discretion
engages in sexual activities with a minor who is at the time, below the age of sixteen years. In
Zambia, defilement is committed under section 138. (1)24 which provides that, “any person who
unlawfully and carnally knows any girl under the age of sixteen years is guilty of a felony …….”
In this offence, carnally knowing the girl under the age of sixteen is the mens rea.

Rape is another gender-based violence committed under section 132 of the Penal Code. It is
committed when any person has unlawful carnal knowledge of a woman or girl without her
consent. Consent is critical in this offence. The mens rea is unlawful carnal knowledge. In the
case Mubanga v People25 (unreported) the appellant was convicted by the Subordinate Court for
the offence of rape which he committed when he had carnal knowledge of a drunken woman
who laid unconscious in her home the state in which she could not know what was happening or
able to consent to the carnal knowledge. The higher court upheld his conviction. The carnal
knowledge of unconscious woman was the mens rea.

23
Appeal No. 217/2015) [2017] ZMSC 57 (13 June 2017
24
The Penal Code Act Chapter 87 of the Laws of Zambia
25
Appeal No. 177/2017) [2018] ZMCA 246 (26 June 2018
Physical violence can be worst form of gender-based violence. In case R v Ahlumalia26 the
husband abused his wife for many years. On the fateful day, told his wife that the following day
he was going to beat her unless she paid a bill, but she told him she had no money. She waited
until her husband was asleep, then she took some paraffin upstairs and poured over her husband
and set fire to it, killing her husband. The defense argued on the basis of provocation, using
‘slow burn’ reaction to vitiating the requirement of sudden and temporary loss of self-control.
The court of appeal’ s reasoning was that provocation could be available to her in line with the
defense’ s argument as long as there was sudden and temporary loss of self-control at the time of
the killing. It would be difficult to sustain the defense’ argument that there was in this situation a
sudden and temporary loss of self-control on the part of the killer. Flow of events shows that she
waited for her husband to be asleep. This reveals her intention to kill her husband once he was
asleep. She later went to another part of their house away from where her husband was sleeping
from and procured the fuel to the sleeping bed of her husband and, further, poured it over her
husband before setting him ablaze till his death. It is still safe to infer that the levels of mens rea
span from her waiting for her husband to be asleep, securing the fuel and pouring it over the
deceased.

Assault, which has been defined as intentional or reckless act that causes someone to be put in
fear of immediate physical harm in the legal dictionary 27 is another common gender-based
violence. For instance, if J angrily shouts at B, saying, “you stupid bastard, I can kick your ass”,
but stops short of hitting B, nonetheless J should be convicted of assault. The Penal Code on
section 247, with the marginal caption ‘Common assault’ says, “any person who unlawfully
assaults another is guilty of a misdemeanour and, if the assault is not committed in circumstances
for which a greater punishment is provided in this Code, is liable to imprisonment ……...” The
mens rea herein is the intentional or recklessness to causing B to apprehend the possibility of
imminent violence or immediate application of force on his or her person by J. The essence of
this offence is that the victim apprehends the intentional or reckless application of immediate
violence or force to his or her person.28 The courts in Zambian have been constrained to deal
with common assault as embracing two separate offences because, it would appear section 247
26
(1992) 4 All ER 889
27
Elizabeth A. Martin. (2001). Oxford Dictionary of Law (5th ed.).
28
Kulusika, S. (2020). Criminal Law in Zambia: Doctrine Theory and Practice. Lusaka: Chribwa Publishers
of the Penal Code only prescribes one penalty for an offence of common assault. So, this has
been assumed to cover only assault, but not battery. 29 The actus reus of battery is the infliction of
force (or violence) on the victim by the accused person. If X makes contact with Z without the
consent of Z, and the contact is classified as intentional or reckless, X will be deemed to have
inflicted unlawful violence or force on Z. The mens rea of battery is that the accused person
intends to inflict unlawful violence (or force) on the victim, or he does so recklessly (subjective
recklessness).30 Battery is committed under section 248 of the Penal Code.

Section 229 of the Penal Code creates the offence of grievous harm. It deals with doing or
causing or inflicting ‘unlawful grievous harm’ on another person. The mens rea out for proof by
the prosecution is that the accused person did the act maliciously. There is an injury caused on a
person by use of an instrument in a manner unlawful to wounds another. The offence is called
unlawfully wounding. It is created under section 232 (a) of the Penal Code. In the case Lengwe v
The People,31 the appellant was challenging his conviction for unlawful wounding inflicted with
a hammer and spanner. The test was whether the injuries suffered by the victim fell within the
express definition of a wounding. It was said any incision or puncture which divides or pierces
any exterior membrane of the body amount to wounding. The meanings of the words “incision”
and “puncture” make it clear that such a wound can be inflicted only by a weapon with a cutting
edge or point. The conviction was upheld. The wounds would prove his intention.

This paper is also assessing the presence of the mens rea in money laundering cases. Money
laundering is recognized by the international community as having serious adverse effects on the
economies of the states. The international convention against Transnational Organized Crime
2000 (commonly called the Palermo Convention) called them categories of money laundering.
These include: conversion or transfer of property with apparent knowledge that the property is
the proceed of crime, and, that conversion or transfer of the property is done in order to conceal
or disguise the origin of the property in question, and the same may serve other purposes such as
to prevent detention and prosecution of the offender or a third person. The concealment or
disguise of the property aimed at having its true nature, ownership or rights not uncovered. 32 The
29
Kulusika, S. (2020). Criminal Law in Zambia: Doctrine Theory and Practice. Lusaka: Chribwa Publishers
30
ibid
31
(1976) Z.R.127
32
Kulusika, S. (2020). Criminal Law in Zambia: Doctrine Theory and Practice. Lusaka: Chribwa Publishers
acquisition, possession or use of the property contrary to the law of land because the property is a
proceed of crime. In these crimes, intention, recklessness or negligence mens rea are not
mentioned in the Prohibition and Prevention of Money Laundering Act No. 14 of 2001 (PPMLA
2001). However, intention, recklessness or negligence may be inferred from terms such, who
knows or has reason to believe as contained in section 2 of the Act. The correct interpretation of
the words like ‘who knows or has reason to believe, ….will show deliberation and planning on
the part of the perpetrators.

In the offence of attempt, conspiracy and encouragement, which is committed under section 9 33
the mens rea is the attempts, aids, abets, counsels or procures the commission of the offence of
money laundering and conspires with another to commit the offence of money laundering. In
falsification of material, an offence created under section 10, the mens rea is the falsification of
material.

In conclusion, using Professor Simon Kulusika’ s book "Criminal Law in Zambia" on the
chapters on "Gender-Based Violence" and "Money Laundering" offences and others has revealed
that mens rea is present in these crimes. This has shown through consultations with several books
of authority, precedents, statutes and other materials plus writer’s own views.

REFERENCES

33
Prohibition and Prevention of Money Laundering Act No. 14 of 2001
Books

1. Jefferson, M. (2009). Criminal Law, 9th ed. Gosport: Ashford Colour Press
2. Kulusika, S. (2020). Criminal Law in Zambia: Doctrine Theory and Practice. Lusaka:
Chribwa Publishers
3. Elizabeth A. Martin. (2001). Oxford Dictionary of Law (5th ed.).

Cases
4. Board of Trade v. Owen (1957) AC 60 19
5. Christine Mulundika and 7 Others v The People, SCZ Appeal No 5 of 1995
6. Haughton v Smith (1975) AC 476 at 491, H1
7. Lengwe v The People (1976) Z.R.127
8. Mubanga v People (Appeal No. 177/2017) [2018] ZMCA 246 (26 June 2018)
9. Sudan Government v. Mohamed Ahmed Mohamed Mohamedein (1947)
10. Tony Manganda Kwiimbe V The People (1982) Z.R. 32 (S.C.
11. R v Ahlumalia (1992) 4 All ER 889

Statutes
12. Anti-Gender Based Violence Act No. 1 of 2011
13. The Constitution of Zambia Act, Chapter 1 of the Laws of Zambia (1996)
14. The Penal Code Act Chapter 87 of the Laws of Zambia (As amended by No. 6 of 1965
15. Prohibition and Prevention of Money Laundering Act No. 14 of 2001 (PPMLA 2001)

Journals
16. Stephen, J. F. (1883). History of Criminal Law of England. Oxford: (Vol. 11 OUP) 94

Internet

17. https://en.wikipedia.org/wiki/Criminal_law (retrieved on 6th April, 2021)