Introduction
This essay aims to advise the Director of Public Prosecutions (DPP) on the legal issues arising from the criminal activities of Nalishebo, Bwalya, and Monde, particularly focusing on the recent bank robbery incident during which Bwalya shot and killed a customer. The trio, who have engaged in both petty and serious crimes over the past seven years, took an oath not to kill during their criminal endeavours, rooted in their religious and personal principles. However, the recent event challenges this commitment and raises significant questions under Zambian criminal law. This analysis will explore the relevant provisions of the Zambian Penal Code, the applicability of joint criminal enterprise, the potential charges of murder and robbery, and any mitigating factors. Drawing on statutory provisions and relevant case law, the essay will provide a broad understanding of the legal framework, while acknowledging limitations in accessing specific Zambian judicial precedents due to constraints in available resources. The objective is to outline key considerations that may inform the DPP’s decision to prosecute.
Legal Framework under the Zambian Penal Code
The primary legislation governing criminal conduct in Zambia is the Penal Code Act, Chapter 87 of the Laws of Zambia. This statute defines offences such as robbery and murder, which are central to the case at hand. Under Section 294 of the Penal Code, robbery is defined as the use of force or threats to steal property from another person. If the robbery is committed with a firearm or in company with others, it becomes aggravated robbery, carrying a potential life sentence (Penal Code Act, 1931). Given that Nalishebo, Bwalya, and Monde were heavily armed during the bank robbery, the offence clearly falls under this aggravated category.
Furthermore, Section 200 of the Penal Code defines murder as the unlawful killing of a person with malice aforethought, expressed or implied. Malice aforethought includes the intention to cause death or grievous bodily harm. Bwalya’s act of shooting the customer, who refused to comply with instructions, raises the question of whether such intent was present. This incident, therefore, provides grounds for a murder charge against Bwalya, but the shared criminal intent of the trio also necessitates an examination of joint liability. While specific case law directly interpreting these provisions in similar contexts is not readily accessible due to limitations in public legal databases for Zambia, the statutory definitions provide a clear starting point for prosecution.
Joint Criminal Enterprise and Shared Liability
A critical issue for the DPP is whether Nalishebo and Monde can be held criminally liable for the murder committed by Bwalya, despite their oath not to kill. Under Zambian law, the principle of joint criminal enterprise, often referred to as common purpose, holds that individuals engaged in a common unlawful act can be liable for crimes committed by one of their associates in furtherance of that act. Section 21 of the Penal Code stipulates that when two or more persons form a common intention to prosecute an unlawful purpose, each is deemed to have committed any offence resulting from that purpose (Penal Code Act, 1931).
In the absence of specific Zambian case law due to research constraints, reference can be made to broader Commonwealth principles, which often influence Zambian jurisprudence. For instance, in the English case of R v Powell and English (1997), the House of Lords clarified that participants in a joint enterprise could be liable for murder if they foresaw the possibility of serious harm, even if they did not directly commit the act (Powell and English, 1997). Applying this reasoning, if Nalishebo and Monde foresaw or should have foreseen that Bwalya might use lethal force during the robbery—especially given their use of firearms—they may share liability for the murder. However, their explicit oath against killing could arguably serve as evidence that such intent or foresight was absent, complicating the prosecution’s case.
Potential Charges and Prosecutorial Considerations
For Bwalya, the DPP can reasonably pursue charges of murder under Section 200 and aggravated robbery under Section 294(2) of the Penal Code. The act of shooting the customer suggests a direct intent to cause harm, satisfying the criteria for malice aforethought. Establishing this intent will depend on evidence such as witness testimonies, the circumstances of the shooting, and Bwalya’s state of mind at the time. Additionally, the aggravated robbery charge is straightforward, given the use of firearms and the group’s coordinated actions.
For Nalishebo and Monde, the DPP must consider whether to charge them with murder under the doctrine of common purpose or limit the charges to aggravated robbery. Their non-participation in the actual shooting and their oath against killing may mitigate their culpability for murder. However, as noted earlier, their presence during an armed robbery implies a level of foresight regarding potential violence. The DPP will need to weigh whether a jury or judge would find it reasonable to attribute shared intent for the killing, or if their personal principles provide a credible defence against such attribution.
Mitigating Factors and Defences
The trio’s shared religious and personal commitment not to kill, formalised through an oath, introduces a potential mitigating factor. While Zambian law does not explicitly recognise personal or religious beliefs as a defence to murder or robbery, such factors may influence sentencing or prosecutorial discretion. For instance, under Section 25 of the Penal Code, the court may consider circumstances that reduce moral culpability, even if they do not negate criminal liability (Penal Code Act, 1931). Nalishebo and Monde could argue that they neither intended nor anticipated Bwalya’s actions, especially given their explicit agreement against lethal violence. This argument, though not a complete defence, might reduce the severity of charges or penalties if the DPP proceeds with prosecution.
For Bwalya, a possible defence could be provocation or lack of premeditation, given the customer’s refusal to comply. However, Zambian courts typically require substantial evidence of loss of control for provocation to mitigate murder to manslaughter, as outlined in Section 205 of the Penal Code (Penal Code Act, 1931). Without clearer evidence of such circumstances, this defence appears weak.
Conclusion
In advising the DPP, several legal issues emerge from the case of Nalishebo, Bwalya, and Monde. Bwalya’s actions clearly warrant charges of murder and aggravated robbery under the Zambian Penal Code, supported by the statutory definitions of these offences. The liability of Nalishebo and Monde for murder, however, hinges on the application of joint criminal enterprise, requiring the DPP to establish shared intent or foresight of lethal harm—a challenging task given their oath against killing. While specific Zambian case law is unavailable due to research limitations, Commonwealth principles and statutory provisions provide a sound basis for analysis. The DPP must also consider mitigating factors, such as the trio’s principles, which could influence sentencing or prosecutorial decisions. Ultimately, the decision to prosecute should balance the severity of the crimes with the nuances of individual culpability and intent, ensuring a fair application of the law. Further investigation into the circumstances of the robbery and the trio’s prior conduct may provide additional clarity on these complex issues, guiding the DPP toward a reasoned and just prosecution strategy.
References
- Powell and English (1997) R v Powell; R v English [1999] 1 AC 1, House of Lords.
- Zambian Penal Code Act (1931) Chapter 87 of the Laws of Zambia. Government of Zambia.
