A critique of the laws on vandalism in Zambia with special reference to The People v. Emmanuel Mbita and Rabi Chilufya
Date
2013-04-18
Authors
Mulenga, Milton
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Abstract
This research examined the reality and efficacy of anti-vandalism laws in Zambia, before the amendment by Act No. 17 of 2007 and, as amended by the said Act. An evaluation was made as to whether the lacuna that was in the law before the amendment was actually filled by the amendment. The study was based on both desk research and interviews with learned counsel and officers of the Zambia Police Service at the Force Headquarters.It was found that before the amendment to the Penal code by Act No. 17 of 2007, the State Security Act, the Railways Act, the Telecommunications Act, the Electricity Act and the Aviation Act inter alia criminalized and still criminalize the destruction of various forms of property such as roads, dams, bridges, railways, telecommunications and aerodromes. The Penal Code did so too. The major weakness observed in the Acts above is that they did not comprehensively protect private and public property essential or incidental to the provisions of a necessary service. It was also observed that one of the motives underlying the destruction or vandalism of public and private property was economic gain or other personal gain which were not envisaged under the old laws. The penalties maintained for the offence were also not deterrent.Act No. 17 of 2007 has made the law more comprehensive, certain and stiffer with regard to the offence of vandalism. The amendment, by criminalizing destruction or vandalism, for any purpose, to public and private property, strengthened the law by encompassing such purposes as individual economic gain or other personal benefit. Through sentences of between ten and twenty-five years imprisonment, the law now seeks to deter would-be offenders.Act No. 17 embraces some weaknesses. For example, the Act limits the mens rea elements in the determination of culpability as against the accused to only intent and malice, leaving out recklessness. The Act also does not provide any opportunity for the accused to raise a lawful excuse for their commission of acts of vandalism. It was also observed that the Act has created the offence of vandalism which is different from malicious damage to property in general. This overlap and duplication in nomenclature is awkward, and could be attributed to poor drafting.
It is recommended that the whole Division VI in the Penal Code, be renamed from "MALICIOUS INJURIES TO PROPERTY' to 'VANDALISM TO PROPERTY' so as to make the law simple. It is also recommended that the other statutes' viz Electricity Act, Railways Act, the Communications Act among others be amended so as to make them responsive to and identical with Act No. 17 of 2007. Since the Penal Code defines property to include real and personal property, it is recommended that the courts interpret destruction of or damage to property to include 'damage to land' in terms of unlawful dumping of refuse on another's land.
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Keywords
Vandalism-Zambia , Offences Against Property , Government Propert-Vandalism