IN THE HIGH COURT OF LESOTHO
In the matter between:-
Review Case No. 152/03 CR 08/03
Review Order No. 15/03 In the Maseru District
Prescription of Offences - Section 22 (c) of the Criminal Procedure and Evidence Act No.9 of 1981 - The right of prosecution for culpable homicide, unlike murder, prescribes after a lapse of 20 years from the time when the offence was committed.
The accused had negligently caused the death of another in July 1983 and prosecution on a charge of culpable homicide was only mounted after twenty years in August 2003.
Held: Despite his plea of guilty to the charge, the accused was entitled to be acquitted by reason of lapse of time as the learned magistrate had correctly found.
It is not in dispute that on the 14th July 1983 (so the charge alleges) and at Ha Ntsane in the district of Maseru, the accused
"assaulted one Ntsane Makopela and inflicted upon him certain injuries which caused the death of the said Ntsane Makopela and the said accused thereby negligently kill the Ntsane Makopela Ntsane and did commit the crime of culpable homicide. "
From the record, it appears that in the short criminal trial which took place on the 11/08/03 the charge alleged that the accused was aged 22 years at the time of the commission of the offence. The circumstances surrounding the killing were not outlined, suffice it to state that the Director of Public Prosecutions had directed that accused be charged with the crime of culpable homicide.
Section 22 of the Criminal Procedure and Evidence Act No.9 of 1981 reads as follows:
"22. The right of prosecution for-
(a) murder shall not be barred by any lapse of time;
(b) any other offence, whether at the public instance or at the instance of a private party, shall, unless some other period is expressely provided by law, be barred by the lapse of 20 years from the time when the offence was committed.
(c) If after the lapse of 20 years there is a prosecution on a charge of murder, and after hearing the evidence the court finds that the accused would be guilty of a lesser crime such as culpable homicide on which a verdict is competent, the accused shall be entitled to be acquitted on such lesser crime by reason of lapse of time. " (My underlining)
It is the right of prosecution for culpable homicide which prescribes and not the offence per se. Indeed, if fresh facts could arise to substantiate a crime of murder of the same person, the accused could still be prosecuted for that murder.
It is common cause that when the criminal prosecution was mounted on the 11/08/03, twenty years had since elapsed since the homicide was allegedly committed by the accused on the 14th July 1983. Indeed, section 22 (c) (supra) specifically dictates that a prosecution for culpable homicide after a lapse of 20 years would result in a acquittal unlike murder for which prosecution shall not be barred by any lapse of time.
The rationale of section 22 is perhaps based on the principle of the "sanctity of human life" and the gravity of intentional killing and that a murderer should be prosecutable and punishable as long as he lives; for other secular crimes, twenty years without prosecution should expiate the societal transgression.
The learned magistrate was therefore correct to acquit the accused of the offence of culpable homicide under provisions of section 22 (c) despite the accused's plea of guilty.
2nd OCTOBER, 2003
CC: The Chief Magistrate
The Magistrates - Maseru
O/C Police- Maseru
O/C Central Prison
Director of Prisons
Director of Public Prosecutions