Manslaughter: Killing without malice

By Pravin Bowry

Ever heard of a creature of law called ‘malice aforethought’? Absence or presence of malice aforethought is the only differentiating legal ingredient between the offences of murder and manslaughter.

On this legal distinction depends the life of an accused person. Viewed from the accused’s perspective, malice aforethought is the one factor which determines various rights of the accused — whether an accused will be hanged or sent to jail, whether the trial will be in the High Court or the Senior Resident Magistrate’s Court, whether an accused will or will not be granted bail pending the trial and finally if an accused is entitled to free state legal representation if he cannot afford his own.

Murder trials are held only in the High Court. In Kenya, the prosecutor alone has the discretion in the first instance whether to charge an individual for murder or manslaughter. When an accused has been charged for murder, after a hearing, the court has mandate to convict one on the lesser offence of manslaughter.

Remembering that our Penal Code enacted in 1930 is a hybrid enactment, which incorporates English law, but landed in our statute book by a long journey through Australia, India, Nigeria and then Bermuda, the Kenyan definition of malice aforethought is unusually complicated.

Defining murder

The upshot of the definition of the term is that murder is the killing of one human being by another intentionally without any legal excuse and manslaughter is unjustifiable and inexcusable killing of a human being without deliberation, premeditation or malice. The essential difference between the two offences is that malice aforethought must be present for murder, whereas it must be absent for manslaughter, although in both instances death is occasioned to the victim of the offence.

There are certain killings which are legal, as in the case of a soldier killing the enemy in war or when a policeman kills in self defence or where death is authorised in law as in the case of an executioner obeying a court order when carrying a death sentence — justifiable homicide.

Then there are acts of killings, which are excusable as in the case of insanity or of acute and grave provocation in the heat of the moment provided the accused did not incite the victim. Other examples of excusable homicide are self defence which defence is open in cases where the accused has retreated as far as he could or where the accused is so drunk as to be incapable of forming any sort of intention or malice aforethought.

Provocation to kill

A legal scholar, James S Read talking of manslaughter has said: "Manslaughter is a residual category of miscellaneous killings a junk room of those types of culpable homicide which do not for several varied reasons amount to murder."

Manslaughter results when there is provocation, by usage of excess of justifiable force, by an unlawful act meaning a dangerous act or one involving considerable risk of injury to the person so that the accused can be said to have knowingly acted with reckless disregard for others safety.

The mandatory sentence for murder is death, though this in present Kenyan circumstances means a life sentence as no death sentence has been carried out since 1987. If a court were to impose the maximum sentence in a manslaughter matter, would the accused in reality have been sentenced to murder, an offence he did not commit?

—The author {[email protected]} is a lawyer in Nairobi