CATHOLIC UNIVERSITY OF EASTERN AFRICAN

FACULTY OF LAW
JOY MUTHEU MUSYOKA
1033024

INTRODUCTION

For any person to be convicted of a crime, there must be two very essential elements namely;

a) The unlawful act committed (the physical element).

Actus Reus is a Latin phrase for “guilty act”. Actus Reus is the wrongful deed that comprises
the physical components of a crime that must be coupled with mens rea for one to be held
criminally liable. The “guilty act” in theft is the actual taking of or unlawful control over
property without the owner’s consent.

1
Mens rea is a Latin phrase for “guilty mind” basically, the state of mind. In a case, the
prosecution must prove that the defendant had the mental element or “guilty mind” while
committing a crime to secure a conviction for example theft, the mens rea for this crime is the
intention and knowledge to deprive the rightful owner of the property. If someone was
involved in an act but without the intention to commit a crime, they may not be convicted for
the said crime.

The levels of mens rea and the distinction between them vary among jurisdictions. The
common law of each jurisdiction with regard to culpability varies as precedents and statutes
vary for example in England theres;

 Direct intention: the actor has a clear foresight of the consequences of his actions, and
desires those consequences to occur. It's his aim or purpose to achieve this consequence
(death).

1
Jonathan Burchell Principles of Criminal Law 3rd Edition 2005 157.
 Oblique intention: the result is a virtually certain consequence or a 'virtual certainty'
of the defendant's actions, and that the defendant appreciates that such was the case.
 Knowingly: the actor knows, or should know, that the results of his conduct are
reasonably certain to occur.
 Recklessness: the actor foresees that particular consequences may occur and proceeds
with the given conduct, not caring whether those consequences actually occur or not.
 Criminal negligence: the actor did not actually foresee that the particular
consequences would flow from his actions, but a reasonable person, in the same
circumstances, would have foreseen those consequences.

Article 30 of the Rome Statue provides a magnitude to prove Mens Rea by proving intent
and knowledge, that the individual had knowledge of the consequences of his actions and
intention of his action
.In the case of Elliot v C 2 The defendant, an educationally subnormal 14-year-old
schoolgirl, had entered a neighbour’s garden shed, poured white spirit on the floor and
ignited it. The defendant then fled as the shed burst into flames. The magistrates
dismissed the charge of criminal damage on the basis that she gave no thought to the risk
of damage, and that even if she had, she would not have been capable of appreciating it.
The prosecution appealed and the Divisional Court, allowing the appeal, held that this
was irrelevant to the issue of recklessness. When the court in Caldwell had talked about
an “obvious” risk, they had meant obvious to the reasonable man if he had thought about
it and not obvious to the defendant if he had thought about it.

Dolus Eventualis
Is3 a form of Intention that is firmly established by the principle of criminal justice that there
can be no liability without fault. The element of fault as a requirement for liability rests upon
the moral and ethical view that only persons who are deserving of blame ought to be
punished.Fault consists in either intention (dolus) or negligence (culpa). Intention consists in
deliberate criminal conduct while negligence consists in accidental criminal conduct.

2
[1983] 1 WLR 939
3
O.W. Holmes The Common Law 3ed. (1991).
4
The subjective test to establish the “reconciliation with the risk” or “the taking into the
bargain” of the foreseen result by the accused with specific reference to S v Pistorius where
Masipa J. continues, in the judgment, to summarise the common cause facts as follows:

“the accused while on his stumps fired four shots at the toilet door at the time the shots were
fired the deceased was inside the toilet the door of the toilet opened to the outside that is into
the bathroom, three of the four shots struck the deceased, the deceased died of multiple
gunshot wounds.’’
5
Murder versus culpable homicide, including the consideration of the subjective and
objective tests for fault. South African law draws a basic distinction between intentional
killing (murder) and negligent killing (culpable homicide). Making this distinction between
intentional and negligent killing has an attractive simplicity but it also means that the South
African law regards murder as including both a killing where death was merely foreseen as a
possibility as well as the typical case of murder, where the killing was premeditated.

In S v Grotjohn the court stated that a person who assists another in committing suicide
could be found guilty of murder if the assistance to the deceased was unlawful and
intentional. The required principal of unlawfulness and intention.

Would the dolus evantualis meet the required standard in the Jean Pierre Bemba and Lubanga
Dylio case?

The required standards( cognitive component test)

a) The possibility of the perpetrator to foresee the consequences of his action of harming
others.

b) The court to examine if the act actually harm others

Jean Pierre Bemba’s Case

Jean was a politician that was charged with three counts of crimes against humanity and five
counts of war crimes commited by the MLC troops under his command and was sentenced to
4
J Burchell Principle of Criminal Law 4th (2013) 746.
5
A. Ashworth Principles of Criminal Law 6th Ed (2009) 155.
18 years imprisonment in the landmark conviction at the international criminal court (ICC).
On appeal, it was discovered the trial chamber had erroneously convicted him. The chamber
was to decide if he would face the conviction. Later Jean served another year and with a fine
and later acquitted.

Paragraph.352-69;

Under Article 30 of the Rome Statue emphasizes on the Intent and knowledge of the
perpetrator and also the state of mind of the individual to prove the state of mind showing the
intent for example conduct and will during the action. Knowledge of the action and
consequences has to be proven.

Article 28 states the facts that the actions always in directions of the superior.An approach is
brought up in two ways;

a) Intent of committing a crime with knowledge of the results

b) The results whereby a commission is committed with no prediction of the outcome

With this, Dolus meets the required standard having the vital objective to prove is that with
ordinary course of events, there is an occurrence of such produced consequence.

Thomas Lubanga Dyilos Case

Lubanga was convicted with counts of war crimes, human rights violations for example rape,
murder and forcing children under the age of 15 to become soldiers. In December he was
sentenced to 14 years of Imprisonment.

Paragraph.350-355

Article 30 of the Rome statute still focusing on Intent and Knowledge highlighting on,

a) Acting with knowledge of the action bringing an element Dolus directus

b) commission of the act having an outcome Dolus Directus

c) .Dolus Eventualis, the person reconciles himself with an outcome but does the action.

. In this Case, the person has to prove they acted with lack of knowledge of the consequences

of their actions.
In conclusions, where the standard requirements met in the two case …yes, dolus eventualis
was sufficiently met.