The Criminal Law (Codification and Reform) Act brings together in one single statute all the major aspects of the Criminal Law. It codifies all the major aspects of the common law Criminal Law and incorporates many of the offences that were previously contained in various statutes. It does not, however, codify statutory offences that are integral to the statutes in which they are contained such as the offences in the Road Traffic Act.
The Code however does not simply incorporate the existing law; it also effects many changes which are intended to improve and reform the existing law.
The Code also codifies the various defences that can be raised to criminal liability. From the standpoint of criminal defence lawyers, these provisions are of major importance.
It should be noted that although the Code does not eliminate case law precedents. Zimbabwean case law remains relevant in relation to offences and defences that have simply been incorporated into the Code without change. South African case law remains persuasive authority.
Defence lawyers need to familiarise themselves with this Code. In this regard they should refer to the Feltoe Commentary on the Code published by the Legal Resources Foundation.
Some of the important changes to the existing law are these:
Culpable homicide (s 49)
This crime has been extended to cover situations where there is ‘conscious negligence’
Inciting or assisting suicide (s 50)
A new crime has been created which consists of inciting another to commit suicide or assisting a person to commit suicide.
Rape (s 65)
The crime has been extended to cover a situation where a male has non-consensual anal intercourse with a female.
Aggravated indecent assault (s 66)
This new crime covers cases where a male or female commits an indecent assault involving non-consensual penetration with indecent intent.
Sodomy (s 73)
This crime now includes acts of physical contact between males that would be regarded by a reasonable person as an indecent act.
Incest (s 75)
The crime now incorporates customary law notions of incest.
Assault (s 89)
There is no longer a distinction between common assault and assault with intent to do grievous bodily harm with seriousness only affecting sentence. Administration of noxious substances is now treated as a species of assault.
Negligent assault (s 90)
This new crime covers situations were harm has been negligently inflicted.
Pledging a female person (s 94)
This crime now prohibits the customary practice of handing over a female person to settle a debt.
Witchcraft and witch finding (ss 97 162)
The Code recognises the distinction between witchcraft and witch finding. Witch finding is only criminalised in certain circumstances where this practice socially disruptive or result in an injustice.
Unauthorised borrowing (s 116)
This new crime outlaws the borrowing or use of someone’s property without their authorisation.
Making off without payment (s 117)
This new crime covers situations where services rather than goods are stolen. It also covers situations where there has been consumption of goods but payment has been refused.
Computer related crimes (ss 162 – 168)
A whole range of ‘cyber-crimes’ has been created.
Threatening to commit specified crimes (s 184)
This covers the new crime of threatening to commit a serious crime, such as threatening to murder or rape
Malicious damage to property (s 140)
The common law crimes of arson and malicious injury to property have been merged.
Unlawful entry into premises (s 131)
This crime reformulates this crime to do away with the artificial requirements of this offence.
There are a number of other new crimes:
Corruptly concealing from principal a personal interest in a transaction (s 173)
Obstructing a Public official (s 178)
Impersonating a police officer, peace officer or public official (s 179)
Deliberately supplying false information to a public authority (s 180)
Negligently causing serious damage to property (s 141)
Some crimes have been merged into other crimes or are now charged as other crimes:
The crimes of theft by false pretences and uttering are now simply treated as species of fraud.
Subornation of perjury is now treated as incitement to perjury or, if the perjury is committed as a result of the incitement, then the person who incited is charged as an accomplice to perjury. (Fifth Schedule)
Commenting upon a pending court case is now charged as defeating or obstructing the course of justice and no longer is charged as contempt of court. (s184(1))
The Code in drastically changes the common law by providing that theft or stock theft continues to be committed regardless of whether the thief has lost possession of the stolen property (s121).
Section 189 extends circumstances upon which an attempt could be said to occur. The accused is now guilty of an attempt if he/she does or omits to do anything intending to commit the crime (or realising that there is a real risk that the crime may be committed) with the proviso that what the accused has done or omitted to do can be said to have reached at least the commencement of the execution of the crime.
As relates participation or assistance, every joint or co-perpetrator is liable as if he/she was the actual perpetrator.
Another important development is highlighted in s 54(2). The High Court now has the power to order the removal of a person from a life support system. This species of euthanasia is now part of our law.
As regards defences, the one major change is to the defence of voluntary intoxications. Previously voluntary intoxication could be a partial defence having the effect of reducing the crime charged with to a lesser one e.g. murder to culpable homicide. There has now been created a new strict liability crime of ‘Voluntary Intoxication leading to unlawful conduct’. This allows the court to find an accused guilty of this crime instead of the one originally charged and sentence the accused to the same punishment to which the accused would have been liable if he/she had been found guilty of the crime originally charged and intoxication had been assessed as a mitigatory circumstance (s 222)