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
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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