POLICE INVOLVEMENT BREAKS THE CHAIN OF CAUSATION IN MARIA ZALOUMIS AND 5 OTHERS’ CASE

POLICE INVOLVEMENT BREAKS THE CHAIN OF CAUSATION IN MARIA ZALOUMIS AND 5 OTHERS’ CASE .

By Dr. Larry Mweetwa.
Iam motivated to share this opinion based on my criminal law course at Law School.

Based on the principles of Zambian criminal law, a defense for Maria and the other accused individuals would rest on several key legal arguments. The defense would contend that the essential elements of the crime of murder are absent and that the accused’s actions were lawful.

1. Citizen’s Arrest and Self-Defense

The initial actions of Maria and the others were a lawful exercise of a citizen’s right to arrest. The accused were faced with an immediate threat to Maria’s life and safety, as Enock was hired to attack her with acid. Section 27 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia empowers any private person to arrest without a warrant any person who commits a cognizable offense or whom he reasonably suspects of having committed a felony. The act of apprehending Enock to prevent him from causing grievous bodily harm constitutes a valid citizen’s arrest. The use of a “lop” to restrain him was a reasonable and necessary measure to prevent a violent attack and secure him until police arrived. This action was not an act of malice, but of self-preservation and public duty.

2. Absence of Malice Aforethought

A conviction for murder under Section 200 of the Penal Code, Chapter 87 requires the prosecution to prove that the accused acted with malice aforethought. This refers to the intention to kill or cause grievous bodily harm. The facts clearly show that the accused had no such intention. Their actions were limited to apprehending and restraining Enock and subsequently handing him over to the police. This demonstrates a clear intention to seek legal recourse, not to inflict fatal injury. The death occurred hours later while Enock was in police custody, an environment completely beyond the control of the accused. The defense would argue that the prosecution has failed to establish this critical element of mens rea, and therefore, the charge of murder cannot stand.

3. Misdirection on the Law of Causation

For a murder charge to succeed, the prosecution must prove that the accused’s actions were the direct and substantial cause of the victim’s death. In this case, Enock Simfukwe Kasengele died from a blunt force head injury, a cause of death that the defense will argue has no causal link to the actions of the accused. The medical evidence provided by the postmortem report is central to this argument. The accused’s actions—restraining Enock with a rope—did not inflict the fatal injury. The chain of causation was broken by a subsequent, independent event that resulted in the head injury. The prosecution has to prove beyond doubt the cause of death, failure to establish a direct causal link between the accused’s actions and the death of Enock is would be a fundamental flaw in their case.

4. Failure to Prove Common Design or Purpose

The law on common purpose in Zambia, as established in cases like The People v Ng’uni, requires the prosecution to prove that the accused individuals shared a common intention to commit an unlawful act. The common purpose of Maria and the others was to effect a lawful citizen’s arrest and hand over a suspected offender to the police. Their actions were entirely consistent with this lawful purpose. There is no evidence that they formed a common design to cause grievous bodily harm or to kill Enock. The death occurred after their common purpose had been fulfilled (the handing over of the suspect) and the victim was under a different authority. Therefore, the essential element of common purpose to commit a crime is absent from the facts.

5. Police Negligence or Culpability as a Novus Actus Interveniens

The defense will argue that the death of Enock was caused by a novus actus interveniens—a new, independent act that breaks the chain of causation. The accused handed over Enock to the police in a living condition. His subsequent death from a blunt force head injury while in exclusive police custody points to an act of omission or commission on the part of the police officers. The police had a duty of care to the detainee. Their failure to protect him, or their direct involvement in his death as alleged by Maria, constitutes a supervening event that relieves the accused of liability. This position is supported by the postmortem report, which establishes the cause of death as a head injury sustained while in custody. The trial court must consider that the death was not a reasonably foreseeable consequence of the initial apprehension. The principle is that if the original injury is no longer an “operating and substantial” cause of death, the original actors are absolved of liability. In this case, the head injury sustained in police custody, not the initial restraint, was the operating and substantial cause of death.

6.Intervening Act (Novus Actus Interveniens)

This is the strongest legal argument. The principle of novus actus interveniens holds that a new, independent, and unforeseeable event can break the chain of causation, thereby absolving the original actor of criminal liability. The accused handed over Enock, who was alive, to the police. His subsequent death from a blunt force head injury while in police custody is an intervening act that was not caused by, nor was it a foreseeable consequence of, the actions of the accused. The postmortem report confirms that the cause of death was the head injury, not the restraining measures.

The police had a duty of care to ensure Enock’s safety while in their custody. The allegation of police involvement in his death adds a powerful layer to this defense, suggesting that the fatal injury was a result of an act by a third party (the police), which broke the causal link between the accused’s actions and the death. This legal position is supported by Zambian case law which requires the prosecution to prove that the accused’s actions were the direct and substantial cause of death. Since the death was caused by an independent event that occurred after the accused’s involvement had ceased, the defense would submit that no causal link exists to sustain a murder conviction.

By Dr. Larry Mweetwa
Law Student