Anglo-African Perspectives on Self-Defence
Published date | 01 March 2009 |
Pages | 118-135 |
Date | 01 March 2009 |
DOI | 10.3366/E0954889009000310 |
Forty-eight years ago, the London Conference on ‘The Future of Law in Africa’ agreed that there should be a general set of criminal laws to be universally applied to all African nations.
A.N. Allott (ed),
UN Doc. A/CONF.183/9*, available at
As a result of the ICC Statute, a permanent international criminal court composed of judges who are independent of their home states, was created for the first time in history, to try perpetrators of crimes against humanity, genocide, war crimes and aggression. The ICC Statute contains provisions spelling out some of the general principles of criminal responsibility. This development is of special significance to African nations because many of them have ratified the Statute. Moreover, at the time of writing, all the cases before the International Criminal Court (ICC) involve African nationals. Consequently, the ICC Statute is an important source of law which African lawmakers (both legislators and judges) should take cognisance of in evaluating the current state of their criminal laws.
Among the general principles of criminal responsibility embodied in the ICC Statute is a provision rendering a person not criminally liable who had performed the incriminating conduct in defence of the person against an assailant, commonly described as ‘self-defence’.
Where the threat is non-human or comprises natural circumstances, the defence will be one of necessity. Where a human agent induces a person by threat to commit an offence, the defence is one of compulsion. The ICC Statute recognises both these forms of defences under Article 31(d) which its terms ‘duress’. For a detailed comparative study of this provision with the defence found in certain African nations, see S. Yeo, ‘Compulsion and Necessity in African Criminal Law’,
Some commentators prefer the term ‘private defence’ on account of its neutrality in not suggesting that the defence is only available to oneself.
This paper will engage in a comparative evaluation of the formulations of self-defence of selected African nations with the aim of producing the best formulation for possible adoption by these nations. The ICC provision will serve as a useful reference point when undertaking this comparative exercise. This is not at all to say that the ICC provision constitutes the ideal model for the defence under consideration. Indeed, as we shall see, some features of that provision are unsatisfactory. Nevertheless, the general statement remains true that the ICC Statute, being a body of law agreed upon by a large number of nations,
Currently, 107 nations have ratified the Statute.
forms a respected and valuable source for comparisonIt would not be feasible for a study of this nature to cover each one of the formulations of self-defence of all fifty-three African nations. Instead, certain nations have been selected for study because their laws are representative of those of many other African nations. More significantly, they lend themselves well to comparison because, being former British colonies, their penal laws have in common the fact that they have been largely influenced by English jurisprudence concerning criminal responsibility. Yet, beyond the generality of having a shared jurisprudence, these selected formulations of self-defence display noticeable variations in terms of their details. Such variations greatly enrich this comparative exercise.
The provision on self-defence in Botswana's Penal Code has been included because that code is among the most recent of the criminal codes of the former British African colonies.
It was enacted in 1964, prior to which time, the criminal law of Botswana had been governed by Roman-Dutch common law: see K. Frimpong and A. McCall-Smith,
They are shared by the northern regions of Nigeria and Somalia.
The provisions are shared by several other African nations such as Gambia, Tanzania and Uganda.
Kenyan Penal Code, s 17. The provision opens with the rider that it is ‘subject to any express provisions in this Code or other law in operation in Kenya’.
Collectively, the laws of these selected nations, together with the ICC provision, constitute a sizable body of thinking concerning the elements that make up the plea of self-defence. A comparative analysis of such a body should be capable of producing a model formulation of self-defence for possible adoption by African nations which were former British colonies. This comparative study should also prove instructive to other nations keen on updating their formulations of self-defence, and to the Commission which will be reviewing the provisions of the ICC Statute and the workings of the ICC in 2009.
Article 123 of the ICC Statute provides for the establishment of such a commission to consider any amendments to the Statute seven years after its entry into force.
The statutory formulations of self-defence of the African nations mentioned above and the ICC Statute are reproduced below for ease of reference. The English common law on self-defence which forms part of the law of Kenya will be left to be presented when discussing the specific issues on self-defence.
The following single provision on self-defence is found in the Code:
s 16. Subject to the express provisions of this Code or any other law for the time being in force, a person shall not be criminally responsible for the use of force in repelling an unlawful attack upon his person … or the person … of anyone whom it is his moral or legal duty to protect if the means he uses and the degree of force he employs in so doing are no more than is reasonably necessary in the circumstances.
After pronouncing a list of grounds where the use of force may be justified,
Section 31, the relevant ground pertaining to self-defence reads: ‘Force may be justified in the cases and manner, and subject to … conditions, … on the ground of any of the following matters, namely … (f) necessity for prevention of or defence against crime …’
the Code provides a special provision for self-defence, the relevant part of which reads:s 37. For the prevention of, or for the defence of himself or any other person against any crime, … a person may justify any force or harm which is reasonably necessary
Section 32 similarly declares that ‘[n]otwithstanding the existence of any matter of justification for force, force cannot be justified as having been used in pursuance of that matter … (b) which in any case extends beyond the amount and kind of force reasonably necessary for the purpose which force is permitted to be used.’
extending in case of extreme necessity, even to killing.The code provides separate provisions for self-defence according to cases where the accused was responding to an unprovoked attack (s 286), and those where the accused was the original assailant or had provoked the attack (s 287):
s 286. When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault: Provided that the force used is not intended, and is not such as is likely, to cause death or grievous harm.
If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.s 287. When a...
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