Immature Age
Under section 14 of the penal Code Cap, 106 repealed by Cap 120 a person under the apparent age of seven (7) years was not criminally responsible for the act or omission. Former section 14 PCA was considered in the case of
R v Wamboi Kamau [1965] EA 548
Where the accused aged 9 was charged with the murder but acquitted after the court satisfying itself of the apparent age of the accused at a time when the offence was allegedly committed.
The distinction between sub-section 1 and 2 of the section was that as for accused below 7 seven, the matter need not be filed in court and sub-section 2 required proof beyond reasonable doubt that the accused below 12 years had the capacity to know or realize that what he or she was doing a wrong action at the time he did it.
It should be noted that section 14 of former Cap 106 of the Penal Code was omitted under Cap 120.
However, section 88 of Children Act cap 89 provides for the minimum age of criminal responsibility to be twelve years. The section increased the age of criminal responsibility from 7 to 12 years.
Also Read: Defence of Compulsion
Double Jeopardy
It refers to the subjection of an individual to a second trial or punishment for the same offence or crime for which he has already been tried or punished.
The defense is provided for under article 28 (9) which provides that a person who shows that he or she has been tried by a competent court for a criminal offence and convicted or acquitted of that offence shall not again be tried for the offence or for any other criminal offence of which he or she could have been convicted at the trial for that offence, except upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.
Under Article 28 (10) further states that no person shall be tried for a criminal offence if the person shows that he or she has been pardoned in respect of that offence.
The same position is restated in section 18 of the PCA which states that a person shall not be punished twice either under this Code or under any other law for the same offence.
What constitutes being punished twice was considered in the case
Seifu s/o Bakari v R [1960] 1 EA 338 where the appellant was convicted by the High Court of Tanganyika on two counts, first of attempted murder, and of attempting to strike with an arrow with intent to do grievous harm.
He was sentenced to six years imprisonment on the first count and to four years imprisonment on the second count.
The second count, however, was in the nature of an alternative count, both counts being founded upon the same act of the appellant.
It was held that where charges against an accused person are alternative, the proper course, upon conviction of the appellant on one count, is for the court to refrain from entering a verdict or finding on the other count since a person should not be punished twice for the same offence.
Philibert Loizeau & Ors v R 23 EACA 566.
The appellant had originally been convicted of murder but on appeal, the trial was held to be a nullity.
The appellant and others were subsequently charged with Manslaughter, causing grievous harm and affray. The appellant was convicted of common assault and affray.
The defense of double jeopardy was rejected by the trial judge holding that where the first trial is held to be a nullity, it is incorrect for the accused to argue that he had been acquitted.
Superior orders or Obedience orders
Obedience refers to compliance with an authoritative command. In some circumstances, obedience to orders of the superior may be relevant to negative mens rea.
The obedience should relate to the obedience of duty. The underlying question is to what extent is the junior officer responsible for an unlawful act.
The defence of superior orders was considered in the Nigerian case of
Ededeye v State [1972] 1 NLR 15.
Where the appellant an active Chief Superintendent of police led a mobile police force, which was under him on a widespread assault and looting split in order to recover money stolen from his wife near the market. He was convicted of assault and stealing.
On appeal, it was argued that the subordinate officers who took part in the raid and who testified against him were accomplices whose evidence required corroboration.
The appeal was rejected on grounds that it was wrong to order the police officer to assault and plunder innocent citizens whom they had a duty to protect.
The order should be done in the scope of the officer's duty and such officer must act as a reasonable man.
Dafasi Magayi and others v Uganda [1965] 1 EA 667
The appellants cannot shelter behind the invitation or order of the chief to kill a thief as is the custom. It was not a lawful order which they were bound to obey and they must have known as much.
The fact that the chief said that he would face the case is itself an indication that he and the appellants knew that what they were doing was wrong.
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