Murder is the crime of intentionally causing the death of another human being, without lawful excuse. The definition of murder was given in the case of Chris Rwakasisi, Elias Wanyama v Uganda (1991) UGSC 2. The appellants where indicted for 16 counts of murder and kidnapping with intent to murder. The justices of the supreme court defined murder thus “…….It consists of the unlawful act or omission of one person, which causes the death of another person with malice aforethought. The elements of the offence are thus (1) the unlawful act or omission; (2) the death being caused as a result of the act or omission; and (3) malice aforethought, that is the intent to cause death or knowledge that the act or omission would, probably cause death (at least serious bodily harm).” When an illegal death was not caused intentionally, but was caused by recklessness or negligence (or there is some defense, such as diminished capacity), the crime committed is manslaughter.
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The first element in murder is causing death. It is impossible to give a precise definition of this, but some legal principles have been developed to help. The penal code act section 196 states that “A person is deemed to have caused the death of another person although his or her act is not the immediate or sole cause of death in any of the following cases-
(a) If he or she inflicts bodily injury on another person in consequence of which that person undergoes surgical or medical treatment which causes death. In this case it is immaterial whether the treatment was proper or mistaken, if it was employed in good faith and with common knowledge and skill; but the person inflicting the injury is not deemed to have caused the death if the treatment which was its immediate cause was not employed in good faith or was so employed without common knowledge or skill; b) if he or she inflicts a bodily injury on another which would not have caused death if the injured person had submitted to proper surgical or medical treatment or had observed proper precautions as to his or her mode of living; c) if by actual or threatened violence he or she causes such other person to perform an act which causes the death of such person, such act being a means of avoiding such violence which in the circumstances would appear natural to the person whose death is so caused; d) if by any act or omission he or she hastened the death of a person suffering under any disease or injury which apart from such act or omission would have caused death; e) if his or her act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons.”
Many common law jurisdictions abide by the year and a day rule, which provides that one is to be held responsible for a person’s death only if they die within a year and a day of the act. Thus, if you seriously injured someone, and they died from their injuries within a year and a day, you would be guilty of murder; but you would not be guilty if they died from their injuries after a year and a day had passed.
Malice aforethought is the second ingredient when determining murder. Originally “malice aforethought” carried its everyday meaning-a deliberate and premeditated killing of another motivated by ill will. It is the intent and knowledge of committing an unlawful act. section 191 of the Penal code Uganda defines malice aforethought as an intention to cause the death of any person, whether such person is the person actually killed or not; or knowledge that the act or omission causing death will probably cause the death of some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused Murder necessarily required that an appreciable time pass between the formation and execution of the intent to kill. The courts broadened the scope of murder by eliminating the requirement of actual premeditation and deliberation as well as true malice. All that was required for malice aforethought to exist is that the perpetrator act with one of the four states of mind that constitutes “malice.”
It is not murder to kill someone with lawful excuse; lawful excuses include killing enemy combatants in time of war (but not after they surrendered), killing a person who poses an immediate threat to the lives of ones self or others (i.e., in self-defense), and executing a person in accordance with a sentence of death (in those jurisdictions which use capital punishment). Sometimes extreme provocation or duress can justify killing another as well.
Under English law, it is murder to kill another human being for food, even if without doing so one would die of starvation. This originated in a case of R v Dudley and Stephens (1884) 14 QB shipwrecked sailors cast adrift off the coast of South Africa in the 1920s; two of the sailors conspired to kill the other sailor, and having killed him ate his flesh to survive.
Most countries allow conditions that “affect the balance of the mind” to be regarded as mitigating circumstances against murder. This means that a person may be found guilty of “manslaughter on the basis of diminished responsibility” rather than murder, if it can be proved that they were suffering from a condition that affected their judgment at the time. Depression, Post-traumatic stress disorder and medication side-effects are examples of conditions that may be taken into account when assessing responsibility.
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The law generally differentiates between levels of criminal culpability based on the mens rea, or state of mind. This is particularly true within the law of homicide, where murder requires either the intent to kill – a state of mind called malice, or malice aforethought – or the knowledge that one’s actions are likely to result in death; manslaughter, on the other hand, requires a lack of any prior intention to kill or create a deadly situation. Manslaughter is usually broken down into two distinct categories: voluntary manslaughter and involuntary manslaughter.
Voluntary manslaughter occurs either when the defendant kills with malice aforethought (intention to kill or cause serious harm), but there are mitigating circumstances which reduce culpability, or when the defendant kills only with an intent to cause serious bodily harm. This can be seen in the case of Francis Masaba v Uganda 1989 UGSC 1. The appellant was a bar tender and was involved in a fight with the deceased after a night of drinking. The appellant is said to have stab the deceased three times in the chest. The learned justices upheld the verdict of manslaughter Voluntary manslaughter in some jurisdictions is a lesser included offense of murder. The Penal code act 1950 sets out three partial defences that reduce murder to voluntary manslaughter; diminished responsibility, provocation and suicide pact.
Diminished responsibility. This covers diminished mental responsibility for a crime falling short of the requirements of the complete defence of Insanity. Under Section 194 Penal code Act 19570 there are three requirements for the defendant to raise the defence of diminished responsibility:
The defendant suffered from an abnormality of mind at the time of the killing. An abnormality of mind is ‘a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal’.
The abnormality was caused by one of the causes specified by the Act: a condition of arrested or retarded development of mind, any inherent cause or a disease or injury.
The abnormality substantially impaired the defendant’s mental responsibility for the killing. Substantial means the lack of control must simply be ‘more than trivial’.
Under s194 (2) of the Act it is for the defendant to prove he suffered from such a condition on the balance of probabilities.
Provocation. Provocation was originally a common law defense to murder, but it was reformed by s3 Homicide Act 1957. There are two limbs to the defence, first the defendant must have actually been provoked, and second the provocation must be such as would have made the reasonable man act as the defendant did. Provocation can come from someone other than the victim and be aimed at someone other than the accused. Further the defense is not defeated by the fact that the defendant induced the provocation.
Provocation in fact: It is a question of fact for the judge whether the defendant was in fact provoked. The loss of control must be sudden and temporary; however it can be the result of slow burn with a relatively minor ‘final straw’. This can be evidenced the case of John Bisset Stenhouse v Uganda 1972 UGCA 1. In this case the appellant was a school teacher who was attacked by riotous students. The teacher and his wife were attacked by stones. The teacher fired two shoots from his gun killing two students. The learned judges held that the teacher was under provocation and acted in self defence.
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The reasonable man test: The provocation must be enough to make a reasonable man do as the defendant did. The reasonable man has the same sex and age as the defendant and such characteristics as affect the gravity of the provocation to the defendant, but characteristics irrelevant to the provocation such as unrelated mental disorders are not given to the reasonable man. Finally, the reasonable man always has reasonable powers of self control and is never intoxicated.
Suicide pacts. Penal Code 1950 introduced the defence of suicide pact. The intention was to show some compassion for those who had been involved in a suicide pact but failed to die. A suicide pact is ‘a common agreement between two or more persons having for its object the death of all of them, whether or not each is to take his own life’. The accused must have had a “settled intention of dying in pursuance of the pact” to avoid him entering into a supposed pact with the real intention of committing murder. This is in section 195 of the penal code Act “It shall be manslaughter and shall not be murder for a person acting in pursuance of a suicide pact between him or her and another to kill the other or be a party to the other killing himself or herself or being killed by a third person”
Involuntary manslaughter is the unlawful killing of a human being without malice aforethought. It is distinguished from voluntary manslaughter by the absence of intention. It is normally divided into two categories; constructive manslaughter and criminally negligent manslaughter. Constructive manslaughter is also referred to as ‘unlawful act’ manslaughter. It is based on the doctrine of constructive malice, whereby the malicious intent inherent in the commission of a crime is considered to apply to the consequences of that crime. It occurs when someone kills, without intent, in the course of committing an unlawful act. The malice involved in the crime is transferred to the killing, resulting in a charge of manslaughter. For example, if a person throws a brick off a bridge into vehicular traffic below they could be found to intend or be reckless as to assault or criminal damage DPP v Newbury. There is no intent to kill, and a resulting death would not be considered murder, but would be considered involuntary manslaughter. The accused’s responsibility for causing death is constructed from the fault in committing what might have been a minor criminal act. Criminally negligent manslaughter occurs where death results from serious negligence, or, in some jurisdictions, serious recklessness. A high degree of negligence is required to warrant criminal liability. A related concept is that of willful blindness, which is where a defendant intentionally puts himself in a position where he will be unaware of facts which would render him liable.
Infanticide. Another form of voluntary manslaughter is infanticide. This offense is in the Penal Code of Uganda Section 213. Generally, a conviction of infanticide will be made where the court is satisfied that a mother killed her newborn child while the balance of her mind was disturbed as a result of childbirth; for instance, in cases of post-natal depression. It is a form of manslaughter, and carries the same range of sentences as a manslaughter conviction. While infanticide is a separate offense from murder, and not a reductive defense to murder, in practice it works in much the same way as a reductive defense. Such was in the case of Miriam Muthoni Kariuki v Republic (2008) KLR Court of Appeal. The appellant was convicted of murdering her 1year son by strangulation by the high court. On appeal the Justices of the Court of Appeal found her to have been with a disturbed at the time of the act and consequently substituted the conviction of murder with infanticide.
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