TO: The Director of Public Prosecution, Zambia FROM: Trainee State Advocate DATE: 16 May 2024 RE: CRIMINAL LIABILITY FOR THE DEATH OF A POLICE OFFICER: THE PEOPLE V MUYANGWA MUZAMBALALA
1.0 Introduction
1.1 You have requested a legal opinion on the charge of murder against Mr Muyangwa Muzambalala ("MM") for the death of a police officer. This opinion will analyse the elements of murder under Zambian law, specifically focusing on the issues of causation and malice aforethought, to determine whether the charge against MM should be maintained. It will also consider the potential liability of the driver of the vehicle which ran over the officer.
2.0 The Law on Murder in Zambia
2.1 Mr Muzambalala has been charged with murder contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. Section 200 states that "Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder".
2.2 For a conviction to be secured, the prosecution must prove two key elements beyond a reasonable doubt: a) Actus Reus: That the accused caused the death of the deceased by an unlawful act. b) Mens Rea: That the act was done with malice aforethought.
2.3 Malice aforethought is defined in Section 204 of the Penal Code. It is established if the prosecution can prove, among other things, an intention to cause the death of or to do grievous harm to any person, whether such person is the person actually killed or not.
3.0 Analysis of Mr Muzambalala's Criminal Liability
3.1 Actus Reus: Causation
3.1.1 The main issue raised by MM's defence is that of causation. He claims that the act of the oncoming vehicle running over the police officer constituted a novus actus interveniens (a new intervening act) which broke the chain of causation between his driving and the officer's death.
3.1.2 For an act to break the chain of causation, it must be an "independent, voluntary act of a third party which is so potent in causing the death that it renders the original act of the accused as merely part of the history" (Mushota, 2008). The Zambian courts have considered this principle. In Haonga v The People (1976) ZR 200 (SC), the appellant threatened the deceased, who in fright ran into the road and was killed by a passing motor vehicle. The Supreme Court held that the chain of causation was not broken. It was held that where the intervening act is a foreseeable consequence of the accused's conduct, it does not break the chain of causation.
3.1.3 Applying this to the present facts, MM took an "erratic route" and drove "in a zigzag way" with the clear purpose of dislodging the officer from his vehicle. It is entirely foreseeable that shaking a person from a moving vehicle onto a road would place them in extreme danger from other traffic. The act of the oncoming vehicle was not an independent event but a direct and predictable consequence of MM's actions. Therefore, MM's driving remains a substantial and operative cause of the death, and the defence that the chain of causation was broken is unlikely to succeed.
3.2 Mens Rea: Malice Aforethought
3.2.1 MM claims that he did not intend to kill the officer, but only wanted to "shake him off". This goes to the question of whether he possessed the requisite malice aforethought as defined in Section 204 of the Penal Code.
3.2.2 The prosecution does not need to prove an intention to kill. Under Section 204(a), an intention to cause grievous harm is sufficient. The court is entitled to infer the accused's intention from the facts and the nature of their actions. In The People v Njovu (1968) ZR 132 (HC), the court confirmed that intent can be inferred from the use of a weapon and the part of the body to which force is applied.
3.2.3 Here, MM used his vehicle as a weapon to dislodge the officer. Driving erratically with a person clinging to the vehicle is an act so dangerous that any reasonable person would foresee that it would cause at least serious bodily harm. The intention to "shake off" an officer in such a manner can therefore be construed as an intention to cause grievous harm. It is highly probable that a court will find that malice aforethought has been established.
4.0 Liability of the Oncoming Driver
4.1 The facts as presented do not suggest any wrongdoing on the part of the driver of the vehicle that ran over the officer. Unless evidence emerges to show that they were driving recklessly or with gross negligence (for instance, speeding or being distracted), they would not bear criminal responsibility. Their actions appear to be an involuntary and unavoidable consequence of the officer being suddenly thrown into their path by MM. They are better viewed as an innocent agent in the sequence of events initiated by MM.
5.0 Conclusion and Recommendation
5.1 Mr Muzambalala's defences are weak. His act of driving erratically was a substantial and legally operative cause of the police officer's death. The intervention of the second vehicle was a foreseeable consequence of his actions and does not break the chain of causation.
5.2 Furthermore, the intention to shake an officer from a moving vehicle is sufficient for a court to infer malice aforethought, as it demonstrates an intention to cause at least grievous harm.
5.3 It is therefore my opinion that the charge of murder against Mr Muyangwa Muzambalala is well-founded on the current evidence.
5.4 Recommendation: The charge of murder contrary to Section 200 of the Penal Code against Mr Muyangwa Muzambalala should be maintained. There are currently no grounds to drop this charge in favour of charging the driver of the other vehicle.
References
Haonga v The People (1976) ZR 200 (SC)
Mushota, L. (2008) Criminal Law in Zambia: Cases and Materials. Lusaka: University of Zambia Press.
The People v Njovu (1968) ZR 132 (HC)
Statute
Penal Code, Chapter 87 of the Laws of Zambia.
