A critical analysis of the viability of the reasonable man test in the defence of provocation
Date
2013-04-18
Authors
Mulenga, Mwelwa R.
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Abstract
The reasonable man test is a legal fiction used mostly in common law jurisdictions in which a hypothetical individual whose view of things is consulted when making legal decisions. The reasonable man is relied upon because he has foresight, he plans his actions, he is informed, he is aware of the law and he is fair minded. Whatever he does is always reasonable. The reasonable man test is therefore used as a yardstick against which everyone's behavior in society is measured. However, the strict adherence to the reasonable man test in some cases results in injustice. This paper thus undertakes to determine the extent to which the reasonable man test is still viable in the defence of provocation with reference to the Zambian jurisprudence.This paper discusses the law of provocation in Zambia, England and India and makes a comparative study of the law in these three jurisdictions. In making the comparative study, the dissertation establishes that the Zambian law on provocation is inadequate as it does not provide for certain aspects of the defence. The dissertation for example discovers that the defence of provocation does not include self-induced provocation and also provocation that happens in the absence of the accused. Another inadequacy of the defence that the paper discovers is that the defence is limited only to unlawful provocative acts.
The paper also examines how the courts in Zambia apply the reasonable man test. The paper discovers that the Zambian courts adopt a strict approach when applying the reasonable man test as the accused is judged against an inflexible, constant and objective standard. The dissertation however, establishes that this is a standard that many accused persons may never reach or achieve. The paper therefore also gives criticisms of the strict application of the test and advocates for a less strict approach. The discussion has recommended that the scope of the defence should be expanded to include self-induced provocation and provocation that takes place in the absence of the accused. It has also been recommended that a less-strict approach should be adopted when applying the reasonable man test. A conclusion is also drawn to the effect that the reasonable person should be attributed with more of the personal characteristics of the accused other than age and sex which are the ones which are normally attributed to the accused.
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Keywords
Reasoning (psychology) - Testing , Provocation (criminal law)