By Ali Abdi
“Even a dog distinguishes between being stumbled over and being kicked” – Oliver Wendell Holmes Jr, US Supreme Court Justice
In my understanding of the law, the overall acting principle of criminal law is to identify conduct that warrants punishment in terms of societal well-being and in connection with the identified conduct. In other words, the ends of justice must depend not only on the kind of scrupulous forensic reasoning of the law and evidence displayed by a prosecutor but also by just as much on the informed common sense of a judge in interpreting the law.
Interestingly, in interpreting the law, the prosecutor and the judge may, in certain instances, find themselves tangled in understanding the relationship between common sense and the law. A person who assists or encourages another to murder, for example, is not a murderer in fact and therefore should not be labelled and punished as a murderer. Additionally, his/her intention to assist or encourage the perpetrator’s commission of murder is not the same as intending to kill or cause great bodily harm by his own hands. Labelling and punishing assisters or encouragers in the same way as the perpetrator attaches more stigma than their wrong-doing deserves.
The common sense part is undeniable and very important since it is possible to have a culpable share of liability in a crime that someone else actually performs. However, the irony on the law is that, on a charge of murder committed by a gang, It hardly matters taking into account the principal person who actually strikes the fatal blow leading to death, all that stands is that you are guilty not because you have agreed that they be committed but, being in their company, have foreseen the possibility that they might be. Such unfairness and injustice is aggravated in the context of joint enterprise liability for a person who, although only assisting or encouraging an underlying crime, is made fully liable as a perpetrator for the collateral crime, which he did not perpetrate, assist or encourage its perpetration, or intend it to be committed.
Joint enterprise is a criminal law doctrine under which two or more defendants can be convicted of the same offence in relation to the same incident, regardless of whether they had similar or differing levels and types of involvement in the incident. Attached to it is a form of liability called parasitic accessorial liability –a liability whereby a secondary defendant is held liable for an offence committed by a principal defendant on the grounds that the offence had occurred in the course of an original criminal venture in which both were involved.
Simply put, the doctrine of joint enterprise arises in situations where there are two offences, the first being that which has been jointly embarked on and the second the unplanned but foreseen offence committed by one of the participants alone. It is therefore par excellence a species of secondary liability. Therefore, if a gang of criminals set out deliberately to commit one crime, all are guilty under criminal law. However, what happens if in the course of the first offence, another crime is committed by one member of the gang? Is the rest of the group also guilty of the second crime?
Under Kenyan Laws, Section 21 of the Penal Code provides, “Where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose an offence is committed of such nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”
The pragmatic policy ground used in joint enterprise cases cannot override the of basic principles criminal law such as fair labelling, proportionate punishment, and personal culpability.
The secondary party need not have been present when the offence was committed, to be held liable. This section, in my understanding, appears as a blunt instrument that risks criminalising people who, by any ordinary reckoning of reason, aren’t responsible for the specific acts of violence for which they end up convicted. It stretches common sense to assume that a person can predict the intentions of another, particularly when spontaneous acts of violence occur.
Take the instance that Alex, an elite gang leader, together with Irene, acting as the stable getaway driver, decide that Alex will break into Mercy’s bookstore and take possession of antique law books and Irene will remain in the car to take watch and also to drive off together once their plan is complete. However, while collecting the books, Mercy, enters the store from the back exit door and this makes Wanjohi to abruptly, using force, hit Mercy with a wooden plank on the head, killing her on the instant. Wanjohi runs out of the store holding the antique books and Irene drives away. Later, they are arrested and both are charged with, (a) breaking and forcing an entry under Section 306 as read together with Section 21 of the Penal Code and (b) murder contrary to Section 203 and 204 as read together with Section 21 of the Penal Code – Wanjohi, the first defendant, as the principal offender and Irene as joint offender.
The main issue here is not on the principal offender who committed the actual crime but on the second defender who acted as the joint offender to the crime. Because guilt based upon joint enterprise is a form of secondary liability, the principle is that the second defendant (Irene) is implicated in the guilt of the first defendant not only for the ‘agreed upon’ crime (a) but also for the further crime (b), which s/he foresaw that the first defendant might commit in the course of carrying out crime (a).
If Irene, from the above example, is charged and convicted of murder and a sentence of life imprisonment passed, is she really guilty of murder?
The first problem is that, the accessory/joint offender is treated the same way as the murderer by convicting them for murder in the joint enterprise scenario. This, in my view, sends the wrong message in terms of law and of the judge in terms of assessing the liability of the accessory. Each person’s responsibilities should be considered separately. The problem is aided by the use of joint enterprise language that gives the idea that every person in a criminal gang is to be taken as though they are the principal offender regardless of who committed the actual crime. This, in one way, supports the police and the prosecution policy that anybody who is present at the scene of the crime should be prosecuted and treated as though they were a murderer. As a matter of principal and criminal law theory, this way of thinking is difficult to justify.
Secondly, this section allows defendants to be convicted of an offence in relation to which they had no intent to assist or encourage, and in the commission of which they were not involved, since their liability would rest solely on their involvement in the original criminal venture – the actus reus element, combined with their presence and foresight of the possibility, the mens rea, that the collateral offence would be committed.
Lastly, where the collateral offence is murder, a higher threshold of culpability has to be satisfied for the principal defendant to be found guilty, he must have killed with intent to kill or cause serious injury. However, the threshold of culpability for the accessory to be found guilty is very low on the prosecution; this allows those who are simply too morally remote from the crime, bit-part players or not even players at all, to be swept up in a prosecution and convicted on the basis that they were all “in it together”.
These problems, in one way, reflect and make Section 21 of the penal code, reek of injustice. Professor Glanville Williams, in ‘Finis for Novus Actus?’  CLJ 391, 392, wrote, “I may suggest reasons to you for doing something; I may urge you to do it, tell you it is your duty to do it. My efforts may perhaps make it very much more likely that you will do it. But they do not cause you to do it, in the sense in which one causes a kettle of water to boil by putting it on the stove.”
Therefore, on one hand, criminal law generally assumes the existence of free will and, on the other, recognises certain exceptions – in the case of the young, those who for any reason are not fully responsible for their actions, and the vulnerable –it also acknowledges situations of duress and necessity, as also of deception and mistake. But, generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions. Ironically, under this section, criminal law does the opposite by convicting somebody based on another person’s actions, which are not within their control.
Thus in treating an assister or encourager under this section, fully liable in the same way as the perpetrator for the crime assisted or encouraged, in my view, goes against the principles of fair labelling and proportionate punishment. The full criminal liability for a joint enterprise crime is based on a legal fiction that, by participating in the underlying crime, s/he has provided assistance or encouragement to the collateral crime automatically. The joint enterprise defendant’s participation in the underlying crime is regarded as assisting or encouraging the collateral crime and this fictitiously constructed assistance or encouragement is then construed as sufficient actus reus of the collateral crime.
Moreover, the joint enterprise defendant’s mere presence is viewed as enough foresight that the collateral crime might be committed and is construed as an intention to assist or encourage with knowledge of all the essential matters of the collateral crime. This fictitiously constructed mens rea is further construed as the required mens rea for the collateral crime. The joint enterprise defendant is therefore labelled and punished much more than his personal harm-doing and personal culpability would warrant.
Retributive justice and utilitarianism require the crime committed and the punishment given to reflect the defendant’s harm-doing and personal culpability. The duty of criminal law, in this view, is to act as an expressive function to communicate the society’s disapproval and condemnation of certain conduct to the general public. Therefore, labelling and punishing the defendant in accordance with his personal wrong-doing and individual culpability is necessary if this communicative function is to be achieved. It matters that the defendant is not just convicted and punished but also that he is labelled and punished to the extent of his/her wrongful actions and to the degree he/she deserves. Obedience to and respect of the criminal law is better achieved when people accept and approve of the law than when they draw only on their own moral convictions.
The doctrine of joint enterprise, in this way, depicts itself as an unreasonable stretch of the law based mainly on policy grounds that cannot justify a joint enterprise liability. One’s participation in an underlying crime cannot be construed automatically as participation in a collateral crime, let alone deemed as the actus reus of the collateral crime; one’s foresight of a collateral crime cannot equal an intention to assist or encourage the collateral crime, nor can it equal the mens rea of the collateral crime.
The pragmatic policy ground used in joint enterprise cases cannot override the requirements of basic criminal law principles such as fair labelling, proportionate punishment, and personal culpability. Importantly, courts should not aim to obtain easy prosecution at the cost of justice and fairness. Fair and just criminalisation serves deterrence purposes as well or better. By giving rise to the liability in a joint enterprise crime, Section 22 of the Penal Code goes against the basic requirements of retributive justice. It fails to label and punish the defendant for his own personal wrongdoing and individual culpability and therefore should be abolished or reformed. A person who participated in an underlying crime while foreseeing the commission of a collateral crime merely took the risk that such a crime might be committed. He is not the perpetrator or abetter of that crime.
In conclusion, is Irene guilty or not on the charge of murder? Be the Judge. (