Wednesday 13 July 2016

The Principle of Legality

The Principle of Legality
‘Nullum crimen, nulla poena sine lege[1]’
The maxim loosely means neither crime nor punishment without law[2]. It is a mechanism to ensure that the state, its organs and its officials do not consider themselves to be above the law in the exercise of their functions but remain subject to it[3].
The principle of legality is not only a core value but a human right and an absolute defense in criminal law[4]. In essence no crime can exist without a legal backing that foresaw it. It enhances the preservation of human liberty by preventing state abuse and unnecessary interference of the citizenry[5].
The maxim in general seeks to;
1.      Abolition of existing common law penal doctrines.
2.      The prohibition of the judicial creation of new penal rules
3.      Prevent special rules mandating that penal statutes be construed strictly
4.      The prohibition of ex post facto penal laws
5.      Prevent the due process bar on the retroactive application of judicial interpretations altering criminal rules
6.      Due process invalidation of vague criminal statutes[6]
States cannot pass retroactive or ex-post facto legislation that to criminalize an act already done. The law must criminalize something before it happens in order for it to successfully catch offenders[7]. The law is premised on the notion that people must have adequate and due notice to know what an offence is, and what is not. This is the opportunity to see and understand what constitutes criminal behavior and thus culpability.
The origins of this fundamental principle are dated back to the Nuremberg tribunals of world war two, where they acknowledged individual criminal responsibility from a tri-dimensional perspective: legal, moral and criminal[8].
Manifestation of the Principle in International Instruments
According to Article 2(5) ad 2(6) of the Constitution of Kenya international law shall form part of the laws of Kenya. As such there are some key instruments that Kenya has ratified that contain the principle of legality. Key among these is;
1.      Article 15(1) of the International Covenant on Civil and Political Rights
“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby”
2.      Article 11(2) of the Universal Declaration of Human and Peoples Rights
“No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed”
3.      Geneva Conventions
Additional Protocol I to the 1949 Geneva Conventions, art. 75(4)(c)(1977)
“No one shall be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby”
Additional Protocol II to the 1949 Geneva Conventions, art. 6(2)(c)(1977)
“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby”
Customary International Law[9]
This is the practice of states that has been done for a long time and is now accepted by states as law[10]. Put another way, “customary international law” results from a general and consistent practice of states that they follow from a sense of legal obligation[11]. These customs exist independent of treaty law and is thus a source of international law[12]. It is worth noting that these norms are binding upon all states[13]. The principle of legality has achieved customary international law status and thus binds all states

Manifestation of the Doctrine in National Law
The acts and omissions that constitute a crime are to be found in the penal code. Further the Constitution of Kenya which is the highest law on the land upon which other laws seek their validity states under Article 50(2) (n) of the Constitution that Every accused person has the right to a fair trial, which includes the right to not to be convicted for an act or omission that at the time it was committed or omitted was not an offence in Kenya or a crime under international law.
As such the importance of this maxim need not be stated as it is a general and fundamental principle of the criminal justice system of the world. It must be observed if strictly and with extreme caution.
Bibliography
Books
1.      Malcolm N. Shaw, International Law 80 (5th ed., Cambridge, 2003)
Articles
2.      I. Crisan, The principles of legality “nullum crimen, nulla poena sine lege” and their role
3.      Paul H. Robinson, Fair Notice and Fair Adjudication, Two Kinds of Legality, 154 U. OF PENN. L. REV. 335, 2005
4.      D. Meagher, The Principle of Legality as Clear Statement Rule: Significance and Problems, S.L.R
5.      L. Mnguni, The principle of legality in constitutional matters with reference to Masiya v Director of Public Prosecutions and Others 2007 (5) SA 30 (CC)
Cases
6.      Masiya v Director of Public Prosecutions and Others 2007 (5) SA 30 (CC)
Internet Sources
7.      https://www.law.cornell.edu/wex/customary_international_lawb  
8.      http://www.nyulawglobal.org/globalex/Customary_International_Law.html  
9.      https://www.icrc.org/en/war-and-law/treaties-customary-law/customary-law
10.  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=880761
11.  https://sydney.edu.au/law/slr/slr_36/slr36_3/SLRv36n3Meagher.pdf
12.  http://www.saflii.org/za/journals/LDD/2009/9.pdf  
13.    http://www.lectlaw.com/mjl/cl015.htm   
14.  http://defensewiki.ibj.org/index.php/Legality_Principle  
http://effectius.com/yahoo_site_admin/assets/docs/The_principles_of_legality_nullum_crimen_nulla_poena_sine_lege_and_their_role__Iulia_Crisan_Issue5.16811416.pdf

[3] L. Mnguni, The principle of legality in constitutional matters with reference to Masiya v Director of Public Prosecutions and Others 2007 (5) SA 30 (CC); See also http://www.saflii.org/za/journals/LDD/2009/9.pdf
[5] D. Meagher, The Principle of Legality as Clear Statement Rule: Significance and Problems, S.L.R; See also https://sydney.edu.au/law/slr/slr_36/slr36_3/SLRv36n3Meagher.pdf
[6] Paul H. Robinson, Fair Notice and Fair Adjudication, Two Kinds of Legality, 154 U. OF PENN. L. REV. 335, 2005 (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=880761).
[7] Masiya v Director of Public Prosecutions and Others 2007 (5) SA 30 (CC)
[8] I. Crisan, The principles of legality “nullum crimen, nulla poena sine lege” and their role
[11] Malcolm N. Shaw, International Law 80 (5th ed., Cambridge, 2003)
[12] Article 38(b) Statutes of the International Court of Justice
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Doctrine of Recent Possession. Kenyan Criminal Law

Doctrine of Recent Possession
The name is a misnomer as the doctrine does not refer to recent possession but recent possession of stolen property[1]. The doctrine is largely a part of the principles of circumstantial evidence and is manifest to prove mens rea of the offence of handling stolen goods.
The ‘doctrine’ was explained in the case of R v Abramovitch[2] and lays down that when a person charged with handling stolen goods is found in possession of, or dealing with, goods that have recently been stolen, a jury may infer that he is guilty if he offers no explanation of his possession or they do not believe the explanation given. The jury is not bound to draw such an inference and must only do so if they are satisfied that he has committed the offence charged[3].
Applying this to the Kenyan Jurisdiction we infer the elements to be that when one is found with recently stolen property, and offers no explanation of his possession or the explanation cannot be believed then it is inferred that they know that the goods are stolen and are therefore liable for the offence.
More succinctly put; if the prosecution establishes the fact of theft and the fact of recent possession by the accused of the stolen goods, then, in the absence of any evidence to explain how the accused obtained possession of them, the jury may convict the accused[4].
The period of recency is mostly associated with the recency of theft rather than recency of possession[5]. It is a matter of circumstances such as type and size of the items. In certain cases recency can include periods longer than a month.
It is a rebuttable presumption that Arises in Court when it believes that the person in possession of the goods knew or had reason to believe that the goods were stolen or otherwise unlawfully received. It doesn’t apply to where the possessor is not the thief, however if you are found with stolen property of which you cannot account for then it is presumed that you are the thief[6]or handler by receiving.
It is possession by an accused person of recently stolen goods that constitutes the foundation of a prima facie case against him and creates a presumption of guilt. It is a persuasive presumption which imposes on the accused person a burden of giving an explanation of his possession that might reasonably be true. When such an explanation has been given the burden then continues to rest, as always, on the State to prove the guilt of the accused beyond reasonable doubt[7].
The Doctrine doesn’t apply to all cases of theft. The general rule is that where it is proved that property has been stolen and very soon after the stealing the accused has been found in possession of it then it is open to the court to find him guilty of stealing or handling by way of receiving on the basis of the particular facts and circumstances of the case.
Ingredients:
1.     Ownership of the article
2.     Theft of the article
3.     Recent possession by the accused[8]
The burden is on the accused to explain and absence of a plausible explanation fuels the fire and leads to a likely conviction.
The time and application of the presumption is unlimited to time as it will vary according to the article that has been stolen. For instance 3 months has been held to be sufficiently recent for a motor car[9], the court must note the scope and limitation of the doctrine e.g. 7 months after a stolen tire pump was found was held to not be recent[10].
Presumption of Recent Possession v Presumption of Innocence
1.     The presumption of recent possession is a presumption of fact and not a presumption of law as the presumption of innocence[11].
2.     The presumption of fact does not displace the presumption of innocence thereby shifting the burden to the accused of producing legal proof of the innocent origin of the article. Burden remains on the state accused is merely expected to state how it originated[12]
Defenses
Honest claim of right, an honest claim of right is a defense, where one honestly asserts what he believes to be a lawful claim even though it is unfounded in law or fact, however absurd prevents the taking from being theft.[13]
It may appear that a claim of right supports a plea of ignorance of the law but where it raises the benefit of doubt, it should be accorded to the accused.

Bibliography
Books/Articles
1.     Musyoka William: Criminal Law, Law Africa Publishers
2.     J.D Morton, Burdens of Proof and the Doctrine of Recent Possession, O.H.L.J, Vol 1
Cases
3.     Chaama Hassan Hasa v The Republic (1974) KLR 6 1976
4.       R v O'Keefe [1958] O.R. 499 (C.A.)
5.       Seif Ally v The Republic (1976) LRT 215 (J Mwakibete)
6.       Odhiambo v The Republic 2002 1 KLR 241
7.       Abdullah Ibrahim v R (1960) EA 43( J Law)
8.       Mwihambi s/o Chinyele and another v Regina( 1953) 2 TLR
9.       Rex v Hassani s/o Mohammed alias Kinyonyoke 1948 15 EACA 121
Internet Articles
10.                      http://oxfordindex.oup.com/view/10.1093/oi/authority.20110803100407690  



[2] [1914–15] All ER 204
[3] J.D Morton, Burdens of Proof and the Doctrine of Recent Possession, O.H.L.J, Vol 1
[4] [1958] O.R. 499 (C.A.)
[6] Chaama Hassan Hasa v The Republic (1974) KLR 6 1976
[7] R v O'Keefe [1958] O.R. 499 (C.A.)
[8] Seif Ally v The Republic (1976) LRT 215 (J Mwakibete)
[9] Odhiambo v The Republic 2002 1 KLR 241
[10] Abdullah Ibrahim v R (1960) EA 43( J Law)
[11] Mwihambi s/o Chinyele and another v Regina( 1953) 2 TLR
[12] Rex v Hassani s/o Mohammed alias Kinyonyoke 1948 15 EACA 121
[13] Oyat v Uganda 1967 EA 827( Sir Udo Udoma)
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