Compulsion and Necessity in African Criminal Law - · PDF fileCompulsion and Necessity in African Criminal Law Stanley Yeo* Abstract This article sets out a comparativestudyof the

Compulsion and Necessity in AfricanCriminal Law

Stanley Yeo*

Abstract

This article sets out a comparative study of the defences of compulsion and necessity

in selected African nations and under the Statute of the International Criminal

Court. The aim is to produce the best formulations of these defences for possible

adoption by the African nations concerned.

INTRODUCTION

The London Conference on “The Future of Law in Africa” agreed 47 years agothat there should be a general set of criminal laws to be universally applied toall African nations.1 Unfortunately, no progress whatsoever has been madetowards achieving this long-term objective. Recently, a fresh impetus fordoing so has come from another quarter, namely the enactment in 2002 ofthe Statute of the International Criminal Court (the ICC Statute)2 which wasthe culmination of the Rome Conference convened to establish that court.

As a result of the ICC Statute, a permanent international criminal court, com-posed of judges who are independent of their home states, was created for thefirst time, to try perpetrators of crimes against humanity, genocide, war crimesand aggression. The ICC Statute contains provisions spelling out some of thegeneral principles of criminal responsibility. This development is of special sig-nificance to African nations because many of them have ratified the statute.Moreover, at the time of writing, all the cases before the InternationalCriminal Court (ICC) involve African nationals. Consequently, the ICC Statuteis an important source of law which African lawmakers (both legislators andjudges) should consider in evaluating the current state of their criminal laws.

Among the general principles of criminal responsibility embodied in theICC Statute is a provision rendering not criminally liable a person who per-formed the incriminating conduct under a threat caused by a human agent

* Professor of Law, National University of Singapore. I am grateful for the hospitalityshown by the Max Planck Institute for Foreign and International Criminal Law inFreiburg, Germany, where materials for this paper were obtained.

1 AN Allott (ed) The Future of Law in Africa, Record of Proceedings of the London Conference(1960) 36–37 and cited by JS Read “Criminal law in the Africa of today and tomorrow”

(1963) 7 Journal of African Law 5 at 17.2 UN doc A=CONF.183=9*, available at <http:==www.un.org=icc> (last accessed 16 December

2008), reprinted in (1998) 37 International Legal Materials 999.

Journal of African Law, 53, 1 (2009), 90–110 © School of Oriental and African Studies.doi:10.1017/S0021855309000047 Printed in the United Kingdom

or by natural circumstances. The first of these is conventionally described asthe defence of compulsion (or “duress by threats”) and the second as thedefence of necessity (or “duress of circumstances” or “sudden or extraordinaryemergency”).

This article will examine the defences of compulsion and necessity found inselected African nations. By engaging in a comparative evaluation of thedefences of these nations, an attempt will be made to produce the best poss-ible formulations of these defences. The ICC Statute provision will serve as auseful reference point when undertaking this comparative exercise. This isnot at all to say that the ICC Statute provision constitutes the ideal modelfor the defences under consideration. Indeed, as we shall see, some featuresof that provision are unsatisfactory or have resulted from compromise inorder to expedite its acceptance at the Rome Conference. Nevertheless, thegeneral statement remains true that the ICC Statute, being a body of lawagreed upon by a large number3 of nations, forms a respected and valuablesource for comparison.

A preliminary observation may be made that, while all the criminal lawsof the nations selected for this study recognize a defence of compulsion,only some recognize the defence of necessity. This is consistent with thedevelopment of these defences in other parts of the world as well as underinternational criminal law.4 The primary reason as to why the defence of com-pulsion is recognized much more readily than that of necessity is because theformer has developed in ways which render the scope of its operation quitespecific and narrow. In contrast, until recently, the concept of necessity hadbeen viewed as being too vague and broad to serve as a defence in its ownright, as opposed to being an underlying principle of well-established defencessuch as compulsion and self-defence. The current trend is for the law to recog-nize a defence of necessity, the basic argument being that, insofar as criminalresponsibility is concerned, there is no distinction between a person who com-mitted an offence as a result of a threat by a human agent, and one who did sounder a threat caused by natural circumstances. Agreeing with this view, thisarticle advocates the recognition of a defence of necessity which is distinctfrom that of compulsion. The article concludes by considering whetherthese two defences should appear as separate provisions or can be readilycompressed into one provision.

AFRICAN AND ICC STATUTE FORMULATIONS OF COMPULSIONAND NECESSITY

It would not be feasible for a study of this nature to cover each one of theformulations of the defences of compulsion and necessity of all 53 African

3 As of 17 October 2007, 105 nations had ratified the statute.4 For the position under international criminal law, see R Cryer Prosecuting International

Crimes (2005, Cambridge University Press) at 302–04.

COMPULS ION AND NECESS ITY

nations. Instead, certain nations have been selected for study because theirlaws are representative of those of many other African nations, and as theirvaried legal histories add to the diversity of the formulations to be examined.

South Africa is among the nations selected because its defences are not statu-torily prescribed but have been developed through the common law. TheGambian Penal Code provisions have been chosen because they are part of the“Colonial Office model code” which was drafted for the East African coloniesof the British Empire.5 It is also noteworthy that the Gambian provision onnecessity has been borrowed directly from James Stephen’s formulation ofthe defence in his Digest of Criminal Law.6 The Southern Nigerian CriminalCode provisions form part of this study because they are derived from theQueensland Code 1899. Finally, the Sudanese Penal Code provisions have beenincluded because they are based on the Indian Penal Code.7 Collectively, thelaws of these selected nations, together with the ICC Statute provision, consti-tute a sizable body of thinking concerning how society should regard a personwho has been compelled by threats or circumstances into committing a crime.

The formulations of compulsion and necessity of the above mentionedAfrican nations and the ICC Statute are reproduced below for ease of reference.

Formulations of compulsionGambian Criminal Code, section 14

“A person is not criminally responsible for an offence if it is committed by two

or more offenders and if the act is done or omitted only because during the

whole of the time in which it is being done or omitted the person is compelled

to do or omit to do the act by threats on the part of the other offender or offen-

ders instantly to kill him or to do him grievous bodily harm if he refuses; but

threats of future injury do not excuse any offence.”

Southern Nigerian Criminal Code, section 32(4)

“A person is not criminally responsible for an act or omission when he does or

omits to do the act in order to save himself from immediate death or grievous

harm threatened to be inflicted upon him by some person actually present

and in a position to execute the threats, and believing himself to be unable

otherwise to escape the carrying of the threats into execution; but this protec-

tion does not extend to an act or omission which would constitute an offence

punishable with death, or an offence of which grievous harm to the person of

another, or an intention to cause such harm, is an element, nor to a person

who has by entering into an unlawful association or conspiracy rendered him-

self liable to have such threats made to him.”

5 The provisions are shared by several other African nations such as Botswana, Kenya,Tanzania and Uganda.

6 J Stephen Digest of Criminal Law (9th ed, 1950, Sweet & Maxwell) art 11 at 9–11.7 They are also shared by the northern regions of Nigeria and Somalia.

JOURNAL OF AFRICAN LAW VOL , NO

Sudanese Penal Code, section 53

“Except for murder and offences against the State punishable with death, no

act is an offence which is done by a person who is compelled to do it by threats

which at the time of doing it reasonably cause the apprehension that instant

death to that person will otherwise be the consequence; provided that the per-

son doing the act did not, of his own accord or from a reasonable apprehen-

sion of harm to himself short of instant death, place himself in the situation

by which he became subject to such constraint.”

Formulations of necessityGambian Criminal Code, section 15

“An act or omission which would otherwise be an offence shall be excused if

the person accused can show that it was done or omitted to be done only in

order to avoid consequences which could not otherwise be avoided, and

which if they had followed would have inflicted upon him or upon others

whom he was bound to protect inevitable and irreparable evil, that no more

was done than was reasonably necessary for that purpose, and that the evil

inflicted by it was not disproportionate to the evil avoided.”

Southern Nigerian Criminal Code, section 26

“Subject to the express provisions of this code relating to acts done upon com-

pulsion or provocation or in self-defence, a person is not criminally respon-

sible for an act done or omission made under such circumstances of sudden

or extraordinary emergency that an ordinary person possessing ordinary

powers of self-control could not reasonably be expected to act otherwise.”

The Sudanese Penal Code does not contain a provision on necessity.8

Formulations of compulsion and necessity combinedThe South African courts have held that the law is the same whether a personhas been threatened by a human agent into committing a crime (ie compul-sion) or on account of natural circumstances (ie necessity).9 The definition of

8 Interestingly, the drafters of the Sudanese code chose not to adopt the provision onnecessity which appears in the Indian Penal Code. That provision (sec 81) reads:“Nothing is an offence merely by reason of its being done with the knowledge that itis likely to cause harm, if it be done without any criminal intention to cause harm,and in good faith for the purpose of preventing or avoiding other harm to person orproperty.” The provision is accompanied by the following explanation: “It is a questionof fact in such a case whether the harm to be prevented or avoided was of such a natureand so imminent as to justify or excuse the risk of doing the act with the knowledge thatit was likely to cause harm.”

9 S v Goliath 1972 (3) SA 1 (A) at 24. This combined defence is called “necessity” by the SouthAfrican courts. For the purposes of this article, the distinction between compulsion andnecessity will be invoked wherever it is necessary to do so when discussing the SouthAfrican law.


the combined defence has been judicially approved (the South African defi-nition); its elements are:

“(1) the endangering of a legal interest of the accused;

(2) by a threat which has already commenced or is imminent;

(3) which threat is not caused by the accused’s fault;

(4) making it necessary for the accused to avert the danger; and

(5) the means used to avert it are reasonable in the circumstances.”10

The ICC Statute combines the defences of compulsion and necessity underone provision. This was the result of the Rome Conference regarding the twodefences as substantially similar.11 Article 31(1)(d) reads:

“[A] person shall not be criminally responsible if, at the time of that person’s

conduct … [t]he conduct which is alleged to constitute a crime within the jur-

isdiction of the Court has been caused by duress resulting from a threat of

imminent death or of continuing or imminent serious bodily harm against

that person or another person, and the person acts necessarily and reasonably

to avoid this threat, provided that the person does not intend to cause a greater

harm than the one sought to be avoided. Such a threat may either be:

(i) made by other persons; or

(ii) constituted by other circumstances beyond that person’s control.”

As maintained in this study, cases involving threats “made by other persons”give rise to the defence of compulsion and those involving threats “consti-tuted by other circumstances” to the defence of necessity.

The requirements of compulsion and necessity will now be discussedaccording to whether they are concerned with the nature of the threat orthe response to it. The discussion commences with an examination of theICC Statute provision, followed by the South African common law and finallyby the statutory provisions of the other selected African nations.

THE NATURE OF THE THREAT

The existence of the threatOn a strict reading of article 31(1)(c) of the ICC Statute, the threat must havebeen real, that is, it must have existed as an objectively demonstrable fact.The reason for this stance is that, were the law to rely instead on the accused’ssubjective belief, it would allow compulsion and necessity to succeed wherethe accused had mistakenly believed that he or she was being threatened.

10 EM Burchell and PMA Hunt South African Criminal Law and Procedure Vol 1: GeneralPrincipals of Criminal Law (1970, Juta) at 285; approved of in S v Kibi 1978 4 SA 173(E)and S v Malan 1998 (2) SASV 143.

11 P Saland “International criminal law principles” in R Lee (ed) The International CriminalCourt: The Making of the Rome Statute – Issues, Negotiations, Results (1999, Kluwer) 189 at 208.


The threatening circumstances which warrant exculpation would therebybe placed in the mind of the accused, rather than in the real world. Thereis therefore much force in the argument for an objective appraisal ofthe threat before the plea of compulsion or necessity can be allowed to suc-ceed.12 The question, however, is whether the ICC Statute’s stance of requiringthe threat to be real, ignoring altogether the accused’s belief, is conceptuallysupportable and practically just, when seen in the light of article 32 of the ICCStatute which deals with mistake of fact. That article states that “[a] mistake offact shall be a ground for excluding criminal responsibility only if it negatesthe mental element required by the crime”. As for what constitutes such amental element, article 30 provides that “a person shall be criminally respon-sible and liable for punishment for a crime within the jurisdiction of theCourt only if the material elements are committed with intent and knowl-edge”. Accordingly, the subject-matter of the mistake envisaged by article 32is strictly concerned with an offence element (specifically, the mens rea ofthe offence) and has nothing to do with a defence element such as an accu-sed’s belief that circumstances exist which support a plea of compulsion ornecessity.13 Consequently, the ICC Statute does not provide at all for cases ofputative compulsion or necessity: a gap that needs to be filled.

Like the ICC Statute, the SouthAfrican courts have insisted on the threat beingreal for the purposes of the defences of compulsion and necessity.14 Cases ofmistaken belief as to the existence of the threat are dealt with separately fromthese defences by applying the concept of “lack of culpability”. This conceptrequires that “there must, in the eyes of the law, be grounds for blaming theaccused personally for his unlawful conduct”.15 On this basis, a person whoheld a genuine but mistaken belief that he or she was being threatened by ahuman agent or by natural circumstances will lack the culpability required toconvict him or her of the crime committed as a result of that belief. This out-come has been explained on the ground that such a person “would lack mensrea in the form of intention (including knowledge of unlawfulness)”.16

In contrast to the ICC Statute and South African formulations, the pro-visions of all the other African nations studied do not insist on the threathaving to be real. Instead, the existence of the threat is based on the accused’sbelief, with the proviso that such belief must have been reasonable. Theclearest statement of this position appears in the Sudanese provision on com-pulsion, which states that the accused must have been compelled to commit

12 See generally, G Fletcher Basic Concepts of Criminal Law (1998, Oxford UP) at chap 9.13 See O Triffterer “Article 32. Mistake of fact and mistake of law” in O Triffterer (ed)

Commentary on the Rome Statute (2nd ed, 2008, Verlag CH Beck) 895 at paras 14 and 28;K Ambos “The general principles of the Rome Statute” (1999) 10 Criminal Law Forum 1at 29–30.

14 R v Mahomed 1938 AD 30 at 36; R v Damascas 1965 (4) SA 598 (SR) at 600.15 CR Snyman Criminal Law (4th ed, 2002, Butterworths) at 143.16 J Burchell Principles of Criminal Law (3rd ed, 2005, Juta) at 258 and also at 514–15 and 517.

See also Snyman Criminal Law, above at note 15 at 143.


the crime charged due to a “reasonable apprehension” that he or she would bekilled. As for the Gambian and Southern Nigerian provisions on compulsionand necessity, the wording found there assumes that the threat was real.However, this is because cases of putative compulsion and necessity will attractthe provision on mistake of fact found in the Gambian and Southern Nigeriancodes. The respective provisions in both codes are identical and read:“A person who does or omits to do an act under an honest and reasonable,but mistaken, belief in the existence of any state of things is not criminallyresponsible for the act or omission to any greater extent than if the realstate of things had been such as he believed to exist.”17

There is much to commend placing cases of mistaken belief within thedefences of compulsion and necessity as the Sudanese, Gambian and SouthernNigerian codes have done. This is preferable to the South African approach toputative compulsion and necessity which, as noted previously, relies on the con-cept of lack of culpability to acquit the accused, rather than the defences of com-pulsion and necessity. While the outcomemight be the same, the South Africanapproach is less attractive as it ismuchmore complicated, requiring the courts toengage with the notions of culpability, intention and unlawfulness.

Taking stock of the analysis thus far, it has been contended that the stancetaken by the ICC Statute is too draconian in insisting on the factual reality ofthe threat and ignoring altogether the belief of the accused. On the otherhand, it is submitted that permitting an accused’s subjective belief, howeverunreasonable, to support a plea of compulsion or necessity is too favourableto the accused. As suggested by George Fletcher, “[a]n unreasonable or faultfulmistake is itself culpable and therefore it cannot negate the actor’s culpabil-ity”.18 The best approach is to require a hybrid test of an accused’s reasonablebelief as to the existence of the threat. When applying this test, the court willbe required to take into account the accused’s personal characteristics such ashis or her age, gender, physical disabilities, religious beliefs, ethnicity andsuch of the accused’s characteristics as might affect the gravity of the threatto him or her. By recognizing these personal characteristics, society isacknowledging that it cannot realistically expect more of a person than toact in conformity with circumstances as they reasonably appear to him orher. This is precisely the approach that has been taken in the Sudanese,Gambian and Southern Nigerian provisions. Reverting to the ICC Statuteprovision, it is hoped that the review commission, which will convene in

17 Gambian Criminal Code, sec 8; Southern Nigerian Criminal Code, sec 25. The SudanesePenal Code also has a similar provision, namely sec 44 which states that “no act is anyoffence which is done by a person who by reason of a mistake of fact and not by reasonof a mistake of law in good faith believes himself to be bound by law to do it or justifiedby law in doing it.” Sec 37 of the code defines “good faith” as: “Nothing is said to be doneor believed in good faith which is done or believed without due care and attention.”When read together, secs 44 and 37 effectively require the accused’s mistaken beliefto have been based on reasonable grounds.

18 Fletcher Basic Concepts, above at note 12 at 162.


2009 to evaluate the ICC Statute,19 will revise the provision to incorporate thisapproach. Doing so will avoid the injustice of convicting a person who coulddo no more than base his or her conduct on a reasonable belief in the exist-ence of a threatened danger.

The type of harm threatenedThe ICC Statute provision limits the types of threats recognized under thedefences of compulsion and necessity to threats of “imminent death or of con-tinuing or imminent serious bodily harm”. The Rome Conference had con-sidered including threats to property, but ultimately decided against doingso. The restriction of threats to death or serious bodily harm before thedefences will operate is understandable given the very serious nature of thecrimes falling within the jurisdiction of the ICC. However, it would be entirelyin keeping with this sentiment to extend the defence to persons who wereconfronted with the destruction of property which was essential to their sur-vival. This type of threat is recognized by the ICC Statute provision on self-defence20 and has as much to do with the protection of human life as withproperty.

The South African definition states that the defences of compulsion andnecessity are available where “a legal interest of the accused” was endangered.It has been held that a threat of “death or serious personal injury” will supporta plea of compulsion,21 and so too would the threat of “a beating”22 whichimpliedly includes lesser forms of bodily injury. There is also case authoritythat a threat of solitary confinement with its connotations of mental harmwill be recognized.23 However, the courts have stopped short of extendingthe defence of compulsion to cases involving a threat against property.24

This limitation does not apply to cases of necessity where, besides the typesof threats which have been recognized for compulsion, the defence of neces-sity has also succeeded where the threats were against property.25 From thisbrief examination of the case authorities, the expression “legal interest of

19 Art 123 of the ICC Statute provides for the establishment of such a commission to con-sider any amendments to the statute seven years after its entry into force.

20 Art 31(1)(c), which states: “[A] person shall not be criminally responsible if, at the time ofthat person’s conduct … [t]he person acts reasonably to defend himself or herself oranother person or, in the case of war crimes, property which is essential for the survivalof the person or another person or property which is essential for accomplishing a mili-tary mission, against an imminent and unlawful use of force in a manner proportionateto the degree of danger to the person or the other person or property protected. The factthat the person was involved in a defensive operation conducted by forces shall notin itself constitute a ground for excluding criminal responsibility under thissubparagraph.”

21 S v Kibi 1978 4 SA 173 (E).22 S v Peterson 1980 (1) SA 938 (A).23 S v Mtewtwa 1977 (3) SA 628 (E).24 R v Damascas 1965 (4) SA 598 (SR).25 For example, see S vMalan 1998 (2) SASV 143where a farmer successfully pleaded the defence


the accused”, with its potential for recognizing a very wide range of threatenedharm, applies more to the defence of necessity than to compulsion.

The smaller range of types of threats for compulsion compared to necessityis also evident in the criminal codes of Gambia and Southern Nigeria. Inrespect of compulsion, the only types of threats that are recognized are ofdeath and grievous bodily harm. In contrast, the provisions on necessity inthese codes describe the threat in very broad terms. Under the Gambian pro-vision, the description used is “inevitable and irreparable evil”, while theSouthern Nigerian provision refers to “circumstances of sudden or extraordi-nary emergency”.

The likely explanation for this difference between the defences of compul-sion and necessity is that the former is more advanced in its developmentand is ex hypothesi confined to cases where the accused had been orderedby a human agent on pain of injury into committing the crime charged.Consequently, the elements of the defence have been more carefully workedout and circumscribed. In contrast, as noted previously, recognition of theprinciple of necessity as a defence in its own right has been comparativelyrecent, with some jurisdictions such as the Sudan still not according it suchrecognition. For those jurisdictions which have done so, such as SouthAfrica, Gambia and Southern Nigeria, the formulation of the defence hasbeen deliberately expressed in wide terms to enable the courts to deal justlywith the multifarious cases where circumstances of necessity can arise.

However, there appears to be no good reason why the approach towards thedefence of necessity should not also be taken in respect of the defence of com-pulsion. Just because the source of the threat was a human agent as opposedto natural circumstances should make no material difference to the pressuremounted on the accused. Accordingly, it is submitted that a model formu-lation of the defence of compulsion should leave the types of threats open-ended, as has been done in relation to formulations of necessity.

The imminence of the threatThe ICC Statute provision expressly requires the threat to have been imminentor continuing. This requirement highlights the fact that the accused was oper-ating under intense pressure to avoid harm that could happen at any time. Allthe formulations of compulsion in the laws of the African nations studied alsoimpose this requirement. In South Africa for example, the judicially approveddefinition of the defence requires that the threat “has already commenced oris imminent”.26 Under the Gambian, Southern Nigerian and Sudanese

contdof necessity to a charge of criminal damage when he shot and killed animals belonging toother farmers which had strayed onto his land and caused damage to his crop.

26 The second element in the list reproduced in the main text referenced by note 10 above.However, see R v Chipsea 1964 (4) SA 472 (SRA) at 477 per Beadle CJ who held that therewas no hard and fast rule that the threat had to be imminent in every case where the


provisions on compulsion, the threat must have been even more pressing, asdenoted by describing the threatened harm as “instant” and “immediate”. TheGambian provision reinforces this by stating that threats of future injury donot excuse any offence.27

On the other hand, this requirement does not form part of the Gambianand Southern Nigerian provisions on necessity. The Gambian provision con-centrates instead on the accused’s response to the threat which is describedas an “inevitable and irreparable evil”, without also stating that the threatwas about to happen. In relation to the Southern Nigerian provision, thethreat is described in terms of circumstances of “sudden or extraordinary”emergency. Neither of these adjectives necessarily requires the threat tohave been imminent, with “suddenness” denoting that the circumstanceshad come upon the accused unexpectedly and “extraordinary” denoting theimmensity of the threat. The Gambian and Southern Nigerian codes do notgive any indication as to why imminence is a requirement of the threat forcompulsion but not for necessity. Once again, the most likely explanationfor this difference is that, while compulsion is confined to cases involving ahuman agent threatening the accused into committing the offence charged,necessity is not so limited and is intended to cover an infinite variety ofcircumstances where the threatened danger may or may not have beenimminent.

Whether imminence is crucial to the defence of compulsion is question-able. One can readily imagine cases where a person could experience thesame sort of intense pressure to take avoiding action without the threat hav-ing to be imminent. For example, the threat may be to kill a hostage in amonth’s time if the accused refuses to comply with the threatener’s orderto commit the crime charged. Furthermore, the time frame dictated by theconcept of imminence is not at all certain. Is it limited to a few minutes,hours or days? Instead of relying on this nebulous concept of imminence torestrict the scope of the defence of compulsion, it would be preferable toleave it to the other defence requirements to do so. This is precisely whatthe Gambian and Southern Nigerian provisions on necessity have done.These other defence elements are that there was no other reasonable way ofavoiding the threat and that committing the crime charged was a reasonableresponse in the circumstances.28 These other requirements correctly empha-size the need for the accused to take urgent avoiding action, which may ormay not be affected by the imminence of the threat. It is therefore suggested

contddefence of compulsion was raised. See also S v Mtewtwa 1977 (3) SA 628 (E) at 631 wherethe requirement of imminence was downplayed on the ground that the threatener hadcontinuous control over the accused.

27 The meaning of this clause is unclear. It could refer to the absence of imminence assuggested here, or to the opportunity for the accused to take avoiding action, both ofwhich would deny the accused the defence.

28 They are discussed in detail in the section on “The response to the threat” below.


that imminence of the threat should not form part of any formulation of thedefences of compulsion and necessity.

The person threatenedThe ICC Statute provision states that the threat may have been against theaccused “or any other person”. In contrast, the South African definition statesthat the threat must have been directed at the legal interests “of the accused”.However, in one case, the defence was successfully pleaded by a person whohad committed the alleged crime in order to protect another person’schild.29 The Gambian, Southern Nigerian and Sudanese provisions on compul-sion expressly restrict the operation of the defence to cases involving threats tothe accused alone. On the other hand, the Gambian and Southern Nigerianprovisions on necessity do not impose this restriction.

It is submitted that permitting the defences of compulsion and necessity tobe pleaded where the threat was directed at a third party’s interests is a soundposition to take. This is because it correctly recognizes that there may be cir-cumstances where such a threat, even if against a complete stranger, canmove ordinary people to commit a crime in order to avoid the threatenedharm. Whether ordinary people could be so moved under a given set of cir-cumstances will be determined by those elements of the defence dealingwith the response to the threat. To these, we now turn.

THE RESPONSE TO THE THREAT

This requirement of the defences of compulsion and necessity is convention-ally expressed through the concepts of a “necessary”, “reasonable” and “pro-portionate” response. These concepts are well-known in national criminallegal systems including those of the ICC and the African nations studied butare very difficult to define conclusively. Essentially, “necessary” is concernedwith the preliminary question of whether there was some other viablemeans of avoiding the threat available to the accused besides committingthe crime charged. If there was, the defence fails. Only if there was not willthe court go on to inquire whether the means which the accused appliedwas “reasonable” in the circumstances. Doubtless, a response which wasunnecessary would also be unreasonable, and would explain the conclusionin a South African case on compulsion that “[if] the accused omits to try areasonable avenue of escape … then his conduct would be unreasonable”.30

However, given that the concepts of “necessary” and “reasonable” raise dis-tinguishable lines of inquiry, it would be better to keep them distinct.

29 S v Pretorius 1975 2 SA 85 (SWA). South African commentators have also advocatedextending the defence to cases where the threat was directed at a third party’s interests;see Burchell Principles of Criminal Law, above at note 16 at 279; Snyman Criminal Law,above at note 15 at 118.

30 S v Adams 1979 (4) SA 793 at 800 per King J.


In relation to the reasonableness of the accused’s response to the threat, thisinvariably involves comparing the nature of the threat with the accused’sresponse to it. This is where the concept of proportionality fits in and not,as is sometimes thought, with the concept of “necessary” response. QuotingGeorge Fletcher once more: “Necessity speaks to the question whether someless costly means of defense … might be sufficient to ward off the [threat].The requirement of proportionality addresses the ratio of interest threatenedboth on the side of the [human threatener or threatening circumstances] andof the defender. The harm done in disabling the [threat] must not be excessiveor disproportionate relative to the harm threatened and likely to result fromthe [threat].”31

In the light of the above, it would be helpful to divide the response com-ponent of the defences of compulsion and necessity into: (1) the need forthe accused to respond in the way he or she did; and (2) the reasonablenessof that response, with the notion of proportionality forming part of this latterinquiry. Following a discussion of these two issues, this article examineswhether the defences of compulsion or necessity are available to someonewhose response involved the killing of a human being.

The need to respond in the way the accused didThe ICC Statute provision on compulsion and necessity expressly requires theaccused to have acted “necessarily” to avoid the threat. The South African defi-nition likewise states that the threat must have made it “necessary for theaccused to avert the danger”. While the word “necessary” or its derivativesdoes not appear in the Gambian, Southern Nigerian or Sudanese provisionson compulsion, the very nature of the threat itself (of instant death or grievousbodily harm should the accused refuse to obey the threatener’s order) makesit implicit that compliance by the accused was necessary in the circumstances.This is supported by the Gambian provision expressly denying the defence topersons who were subjected only to threats of future injury, arguably imply-ing that the accused in such a situation would have been able to escapefrom the threatener.32 The Southern Nigerian provision achieves the sameeffect by requiring the threatener to have been physically present and in a pos-ition to carry out the threat, and also for the accused to have believed that heor she was unable otherwise to escape.

The necessity of the accused’s response is also clearly featured in theGambian and Southern Nigerian provisions on necessity. The Gambian pro-vision requires the accused to have committed the crime charged “only inorder to avoid consequences which could not otherwise be avoided”. TheSouthern Nigerian provision stipulates that “an ordinary person possessing

31 Fletcher Basic Concepts, above at note 12 at 135, where he was discussing these concepts inrelation to self-defence where the threat would be in the form of an attacker.

32 Compare with the observation in note 27.


ordinary powers of self-control could not reasonably be expected to actotherwise”.33

The reasonableness of the accused’s responseThis requirement concerning the response to the threat involves comparingthe harm caused by the accused in committing the alleged crime with theharm which the threat would otherwise have occasioned. The requirementunder the ICC Statute provision stipulates that the accused must have acted“reasonably to avoid the threat, provided that [he or she did] not intend tocause a greater harm than the one sought to be avoided”. While the openingwords of this quoted part of the provision clearly prescribe this requirementof reasonable response, the function served by the accompanying proviso iscontroversial. The reason for having it was to serve as a compromise to havethe provision on duress and necessity accepted by the Rome Conference.34

Unfortunately, the proviso appears to be rife with difficulty in terms of bothcomprehensibility and application. Its lack of comprehensibility lies in itsuneasy relationship with the other requirement of the provision concerningresponse, namely, that the accused must have acted reasonably to avoid thethreat. Presumably, it is for the court to determine whether or not the accusedhad acted reasonably in the circumstances, thereby making it an objectiveappraisal. How then does the accompanying proviso, with its reference tothe subjective intention of the accused, fit in? What would the outcome ofa case be were the court to decide that the accused’s act was unreasonable,but at the same time found that he or she had not intended to cause a greaterharm than the one sought to be avoided? Or conversely, what would theoutcome be if it was determined that the accused’s act was reasonable butthat he or she intended a greater harm than that sought to be avoided?

Moreover, at a practical level, the proviso will be very difficult to apply sinceit involves having to prove not only that the accused intended the harm butalso that he or she believed that the harm intended was less than that soughtto be avoided. All told, it is submitted that the ICC Statute provision on com-pulsion and necessity would work much better without the accompanyingproviso. The requirement found in the ICC Statute provision that the accusedmust have “act[ed] necessarily and reasonably to avoid” the threat should besufficient to ensure that the defence will operate neither too restrictivelynor too broadly.

As for the handling of this requirement by the African laws studied, theSouth African definition clearly subscribes to it by stating that “the meansused to avert [the threat] are reasonable in the circumstances”. Some of the

33 As will be noted below, this requirement incorporates both the need for and reasonable-ness of the accused’s response to the threat.

34 K Ambos “Other grounds for excluding criminal responsibility” in A Cassese, P Gaeta andJ Jones (eds) The Rome Statute of the International Criminal Court: A Commentary, Vol II (2002,Oxford University Press) 1003 at 1041.


cases have preferred to express the concept of reasonable response in terms of“proportionality”.35 This is understandable since the inquiry into the reason-ableness of the accused’s response to the threat incorporates a comparisonof the threat and his or her response to it. However, it is submitted that itwould be preferable to regard proportionality not as a distinct legal require-ment but as a factor, albeit often a significant one, in deciding whether theresponse was reasonable.36 A court would be distinctly more at ease withhandling the broad-based inquiry of whether the accused’s response was“reasonable” than with the specific one of whether the response was “propor-tionate” to the threat. This approach also circumvents the conceptual as wellas practical difficulty of having to decide whether the infringed interest wasproportionate to the protected interest when they are of a different nature,as where property is damaged in protection of one’s bodily integrity.

While the Gambian, Southern Nigerian and Sudanese provisions on com-pulsion do not use the term “reasonable” to describe the accused’s response,this is implicit on account of the threat being of instant death or grievous bod-ily harm. This is supported by the Southern Nigerian and Sudanese provisionsexcluding certain types of offences such as murder,37 with the result that whatthe law regards as a reasonable response is conduct which falls within theseprescribed perimeters.

As for the defence of necessity, the Gambian provision requires “that nomore was done than was reasonably necessary”38 to protect the threatenedinterest, and further that “the evil inflicted by it was not disproportionate tothe evil avoided”. Based on the submission made earlier, it would be betterfor this latter requirement of proportionality to be left out, relegating it toa factor to be considered when answering the broad question of whetherthe accused’s response to the threat was “reasonable”. The Southern

35 For example, see R v Chipsea 1964 (4) SA 472 (SRA) at 475 and R v Damascas 1965 (4) SA 598(SR) at 599–600. South African commentators have also subscribed to this requirement ofproportionality; see Snyman Criminal Law, above at note 15 at 119; Burchell Principles ofCriminal Law, above at note 16 at 266.

36 This was the approach taken by the High Court of Australia in DPP (Victoria) v Zecevic(1987) 162 CLR 645 in relation to the closely related plea of self-defence. The court atpara 18 said: “[I]t will in many cases be appropriate for a jury to be told that, in determin-ing whether the accused believed that his actions were necessary in order to defend him-self and whether he held that belief on reasonable grounds, it should consider whetherthe force used by the accused was proportionate to the threat offered. However, thewhole of the circumstances should be considered, of which the degree of force usedmay be only part. There is no rule which dictates the use which the jury must makeof the evidence and the ultimate question is for it alone.”

37 To be discussed in the next section of this article.38 Although the word “necessary” appears alongside “reasonably” in this formulation, it is

clear that this part of the provision is concerned more with the reasonableness of theresponse than with whether it was necessary. As noted earlier, the part of theGambian provision which expresses this latter requirement is that which reads: “onlyin order to avoid consequences which could not otherwise be avoided”.


Nigerian provision on necessity embodies this approach by avoiding any refer-ence to proportionality and asking instead whether “an ordinary person pos-sessing ordinary powers of self-control could not reasonably be expected to actotherwise.”

Killing under compulsion or necessityOccasionally, a person may have been ordered to kill a human or be killed.There could also be circumstances of extraordinary emergency necessitatingthe killing of someone so that another might live. Whether compulsion ornecessity should be available as a defence to a charge of murder has solicitedmuch debate.39 That debate need not be repeated here in any detail. Instead,this article will examine the ICC Statute and the selected African laws to seewhether they support the recognition of compulsion or necessity as defencesin cases of culpable homicide.

The ICC Statute provision on compulsion and necessity permits the accusedto use fatal force in seeking to avoid the threat or emergency. Such recognitionis all the more significant given that, only a few years earlier, the AppealsChamber of the International Criminal Tribunal for the former Yugoslavia(ICTY) had ruled against recognizing the defence of compulsion where a sol-dier had been charged with a crime against humanity or a war crime involvingthe killing of innocent human beings.40

South African courts have likewise recognized compulsion and necessityas defences to persons charged with culpable homicide, including murder.41

On its face, the Gambian provision on compulsion is likewise an answer toall charges since the only cases which it expressly excludes are those involving“threats of future injury”. Thus, the defence would be open to a person whowas under a threat of being killed there and then were he or she to refuseto obey the threatener’s order to kill.42 In contrast, the Southern Nigerianand Sudanese provisions on compulsion exclude cases of murder from their

39 For a good summary, see Law Commission A New Homicide Act for England and Wales? AConsultation Paper (2006, The Stationery Office) at 177–83 and Burchell Principles ofCriminal Law, above at note 16 at 267–76.

40 Prosecutor v Dražen Erdemović judgment IT-96-22-A, 7 October 1997 at para 19 and disposi-tion (4). See further Ambos “Other grounds”, above at note 34 at 1010–14; G KnoopsDefenses in Contemporary International Criminal Law (2nd ed, 2008, Martinis NijhoffPublishers) at 50–52.

41 See S v Goliath 1972 (3) SA 1 (A) and S v Peterson 1980 1 SA 938 (A), both of which weremurder cases.

42 Interestingly, sec 16 of the Kenyan Penal Code has the following additional wordsimmediately following “threats of future injury do not excuse any offence”, namely:“nor do any threats excuse the causing of, or the attempt to cause, death”. Sec 15 ofthe Botswana Penal Code appears to be a clumsy rendition of the Kenyan provision, stat-ing that “threats of future injury do not excuse the causing of, or the attempt to cause,death”. The Tanzanian and Ugandan provisions follow the Gambian provision in nothaving these additional words.


scope of operation,43 with the Southern Nigerian provision being even morerestrictive by denying the defence to anyone charged with an offence ofwhich grievous harm or an intention to cause such harm is an element.

As for the defence of necessity, the Gambian provision does not expresslyexclude any offence from its operation. However, it is arguable that therequirement of proportionality stated there would cause a court to deny anaccused the defence on the ground that the sanctity of human life meansthat it is never justifiable to kill a human being in order to save anotherhuman life.44 In contrast, the Southern Nigerian provision does not refer atall to a requirement of proportionality, but instead stipulates that the defencewill succeed where the circumstances of emergency were such that “an ordin-ary person possessing ordinary powers of self-control could not reasonably beexpected to act otherwise”.45 This measure of “ordinariness” of the responseaccords with the comment in the South African case of S v Goliath that, in gen-eral, the ordinary person views his or her life as being more valuable to him orher than that of another, and that “the criminal law should not lay down ablueprint for saintliness”.46

This brief examination of the ICC and African laws yields mixed results withsome for and others against recognizing compulsion and necessity as defencesto culpable homicide. If a position had to be taken, it would be in favour oftheir recognition. Of course, this is not to say that the defence of compulsionor necessity will be readily accepted to acquit a person accused of culpablehomicide. Quoting again the South African court in Goliath, whether anacquittal is warranted or not will depend on the particular circumstances ofeach case and the whole factual situation will have to be evaluated and adju-dicated upon with the greatest care.47 In terms of a statutory expression thatencapsulates this position, it may be sufficient simply to require the accused’sresponse to have been “reasonable” in the circumstances. This would providethe court with the flexibility needed to decide whether it is just to exculpatean accused for killing a human being under compulsion or necessity.

ABSENCE OF PRIOR FAULT AS A CONDITION OF THE DEFENCE

There is one other requirement of compulsion and necessity, found in manynational legal systems, which does not involve the nature of the threat nor theresponse to it. This requirement prevents the accused from relying on either

43 By virtue of the crime of murder being punishable with death under the SouthernNigerian code, and murder being expressly excluded under the Sudanese provision.

44 This was one of the main reasons given by the House of Lords in R v Howe [1987] AC 417at 426 for refusing to recognize compulsion as an answer to a murder charge.

45 The emphasis on “ordinary” may be contrasted with the demand for heroism by theHouse of Lords in R v Howe id at 426–27 which caused it to deny the defence to murdercases.

46 1972 (3) SA 1 (A) at 21 per Rumpff JA.47 Id at 25.


of these defences if the accused was culpable in exposing himself or herself tothe conditions which led to his or her being threatened. The term “prior fault”aptly describes this form of culpability.48 In relation to the defence of compul-sion, this requirement of prior fault denies the defence to an accused who hadvoluntarily associated with a person or group of persons whom the accusedknew could compel him or her with threats into committing a crime of thekind with which he or she was charged. These cases are excluded from thescope of the defence for the purposes of deterrence, by warning people thatthe law will not excuse them if they were at fault in associating with violentcriminals. This stance of excluding the operation of a defence on the basisof the accused’s prior fault operates equally in respect of the closely relateddefence of necessity. In such cases, the defence would be denied to an accusedwho had been culpable in knowingly exposing himself or herself to the kindof emergency which eventuates.

The compulsion component of the ICC Statute provision49 does not havesuch a requirement of prior fault despite there being a body of internationalcase law supporting it.50 This omission is very likely to have been an oversightrather than a deliberate decision by the Rome Conference. By comparison, thenecessity component of the ICC Statute provision51 does allude to such a doc-trine by requiring that the circumstances constituting the relevant threatmust have been “beyond [the accused’s] control”.52 Arguably, this could beinterpreted to mean that an accused who had control of the circumstancesbefore they turned into an emergency (and therefore became no longerwithin his or her control) would be denied the defence.

The South African definition provides that the threat must not have been“caused by the accused’s fault”. There is also South African case law holdingthat the defence of compulsion is unavailable to a person who had voluntarilyjoined a criminal gang knowing of its disciplinary code of vengeance and waslater compelled by the gang to commit a crime.53 However, these judicial pro-nouncements do not indicate whether this remains the case where the

48 For a detailed analysis of this concept, see P Robinson “Causing the conditions of one’sown defense: A study in the limits of theory in criminal law doctrine” (1985) 71 VirginiaLaw Review 1 and S Yeo Compulsion in the Criminal Law (1990, Law Book) at chap 5.

49 That is, art 31(d)(i) which refers to threats “made by other persons”.50 See A Cassese International Criminal Law (2003, Oxford University Press) at 245–46 and

Ambos “Other grounds”, above at note 34 at 1039, for some of these case authorities.51 That is, art 31(d)(ii).52 This clause may have been borrowed from the Siracusa Draft: Association Internationale

de Droit Pėnal, International Institute of Higher Studies in Criminal Sciences=Max PlanckInstitute for Foreign and International Criminal Law et al 1994 ILC Draft Statute foran International Criminal Court with Suggested Modifications (15 March 1996,Siracusa=Freiburg=Chicago). Art 33-13 of the draft states in part that “[n]ecessity excludespunishment when circumstances beyond a person’s control are likely to create anunavoidable private or public harm”.

53 S v Bradbury 1967 1 SA 387 (A); S v Lungile 1999 2 SACR 597 (SCA); S v Mandela 2001 1 SACR156 (C).


accused had been compelled to commit a type of crime falling outside thegang’s usual criminal activities and which was therefore not known or foresee-able by the accused. For example, a person may have voluntarily joined a gangof petty thieves who later compelled him to commit robbery with violence.Surely, it would be too harsh for the law to deny the accused the defence ofcompulsion in such a case. It is therefore submitted that there should be adefinite link between the accused’s prior fault, the need for the defence andthe accused’s blameworthiness. This link is provided for by showing thatthe accused had known54 that his or her conduct could lead to him or hereventually seeking to rely on the defence of compulsion.

The Southern Nigerian and Sudanese provisions on compulsion also imposethis requirement of absence of prior fault but, like the South African commonlaw, are not fully developed. Specifically, the Southern Nigerian provisionrequires the accused not to have “enter[ed] into an unlawful association orconspiracy [which] rendered himself liable to have such threats made tohim”. The equivalent wording in the Sudanese provision is that the accusedmust not have “place[d] himself in the situation by which he became subjectto such constraint”. On their face, these requirements deny the defence uponmere proof that the accused had joined the criminal association, it beingimmaterial whether the accused knew of the risk that, by doing so, he orshe may be compelled to commit the particular type of crime charged.

The Gambian provisions on compulsion and necessity, and the SouthernNigerian provision on necessity do not contain a requirement of absence ofprior fault. It is submitted that this is a material oversight that ought to be rec-tified. A formulation of the defences of compulsion and necessity which fillsthis gap will be proposed in the next and concluding part of this article.

A MODEL FORMULATION

This comparative study of the defences of compulsion and necessity formu-lated by the ICC and selected African nations reveals that the two defencesshare many similarities but also have some differences. Those differencesare, in the main, specific limitations on the scope of the defence of compul-sion but not of the defence of necessity. The limitations pertain to the natureof the threat (eg of instant death or grievous bodily harm) and at whom it isdirected (eg at the accused alone) and the exclusion of certain serious offences(eg murder) from its operation. The preceding discussion has contended thatthere are no strong reasons for imposing these limitations. The better coursewould be for the courts to be left to decide, on a case-by-case basis, whether theaccused had reasonably believed that the threat was of such a nature that it wasboth necessary and reasonable for him or her to commit the crime charged.

54 Or, applying a more stringent view, “ought to have known” which imputes knowledgeon the accused of the subsequent compulsion. For a detailed discussion of this issue,see Yeo Compulsion, above at note 48 at 173–84.


If so, the defence of compulsion or necessity would be allowed to succeed. Shouldthis approachbe taken, no separate provisionswould be required for compulsionand necessity since there would be no material differences between them.

A goodmodel onwhich to base such a formulation of compulsion and neces-sity is to be found in the Australian Commonwealth Criminal Code.55 That codehas provisions for compulsion andnecessitywhichwere the result of efforts by alaw reform body to bring together the best features of the various formulationsof the defences in the Australian states and territories.56 These formulationshavemuch in commonwith those of the African nations studied in this article.For example, as with South Africa, the defences in some Australian states57 arethe creation of the courts which have looked to other jurisdictions such asCanada and England for elucidation. Moreover, the Southern Nigerian pro-visions on compulsion and necessity have been borrowed directly from thecriminal codes of Queensland and Western Australia. Hence, the provisionson compulsion and necessity in the Australian Commonwealth CriminalCode are derived from sources which are mostly shared by the African nationsstudied and, accordingly, deserve serious consideration.

The defences of compulsion and necessity each has separate provisionsunder the Australian code. Compulsion, or “duress” as it is called under thecode, is defined in section 10.2 as:

“(1) A person is not criminally responsible for an offence if he or she carries

out the conduct constituting the offence under duress.

(2) A person carries out conduct under duress if and only if he or she

reasonably believes that:

(a) a threat has been made that will be carried out unless an offence is

committed; and

(b) there is no reasonableway that the threat can be rendered ineffective;

and

(c) the conduct is a reasonable response to the threat.

(3) This section does not apply if the threat is made by or on behalf of a per-

son with whom the person under duress is voluntarily associating for

the purpose of carrying out conduct of the kind actually carried out.”

The defence of necessity is described as “sudden and extraordinary emer-gency” under the Australian code. It is defined in section 10.3 as:

55 Criminal Code 1995 which applies to the federal jurisdiction of Australia. Australia com-prises a federation of states and territories each having their own criminal codes whichvary from one another, much like the situation in the United States of America.

56 Model Criminal Code Officers Committee Final Report. Chapter 2, General Principles ofCriminal Responsibility (1992, Commonwealth Attorney General’s Department). For adescription of the background and work of the committee, see M Goode“Constructing criminal law reform and the model criminal code” (2002) 26 CriminalLaw Journal 152 at 155–63.

57 Namely, New South Wales, South Australia and Victoria.



out the conduct constituting the offence in response to circumstances

of sudden or extraordinary emergency.

(2) This section applies if and only if the person carrying out the conduct

reasonably believes that:

(a) circumstances of sudden or extraordinary emergency exist; and

(b) committing the offence is the only reasonable way to deal with the

emergency; and

(c) the conduct is a reasonable response to the emergency.”58

Should there be agreement that any material differences between thesedefences could be removed, these two provisions could be readily collapsedinto a single one. The defence could be given the name of “compulsion”59

and the provision could read:


out the conduct constituting the offence under compulsion.

(2) A person carries out conduct under compulsion if he or she reasonably

believes that:

(a) a threat has been made that will be carried out unless an offence is

committed, or circumstances of sudden or extraordinary emergency

exist;

(b) there is no reasonable way that the threat or emergency can be ren-

dered ineffective; and

(c) the conduct is a reasonable response to the threat or emergency.

(3) This section does not apply if:

(a) the threat is made by or on behalf of a person with whom the per-

son under compulsion is voluntarily associating for the purpose of

carrying out conduct of the kind actually carried out;60 or

(b) the emergency was created by the person under compulsion who

knew of the risk that he or she might have to carry out conduct

58 It is unclear why this provision does not also contain a clause on the absence of priorfault, like the one appearing in sec 10.2(3) for the defence of compulsion.

59 The choice of names as such is unimportant. It could alternatively be called “duress” as isthe case in the ICC Statute.

60 For an alternative formulation of this issue of prior fault, there is the American LawInstitute’s Model Penal Code Proposed Official Draft (1962), of which sec 2.09(2) states:“The defence as provided by this section is unavailable if the actor recklessly placed him-self in a situation in which it was probable that he would be subjected to duress. Thedefence is also unavailable if he was negligent in placing himself in such a situation,whenever negligence suffices to establish culpability for the offence charged.” For adetailed evaluation of this and other formulations on prior fault, see Robinson“Causing the conditions”, above at note 48 at 15–16 and Yeo Compulsion, above at note48 at 176–84.


of the kind actually carried out in order to render the emergency

ineffective.”61

A salient feature of this proposed formulation of the combined defence ofcompulsion and necessity is the prominence given to the accused’s “reason-able belief”. The courts would use this criterion to assess the existence andnature of the threat or emergency, whether there was a reasonable alternativeto render it ineffective, and whether the conduct of the accused was a reason-able response to the threat or emergency. This feature achieves fairness andjustice to persons who have committed crimes under immense pressure, aswell as making for neatness in using the same criterion when consideringeach of the stated elements of the defence.62

Another salient feature of this proposed formulation is the absence of arequirement of imminence of the threat or emergency. As contended inthis paper, the proper emphasis of the defence is not so much on the immi-nence of the danger as on the need for the accused to take urgent avoidingaction, and this is comprehensively dealt with by the requirements of necess-ary and reasonable response. It is also noteworthy that the formulation doesnot impose a separate requirement of proportionality, leaving this to betaken into consideration when determining whether the accused’s conductwas reasonable in the circumstances.

Finally, the proposed formulation is attractive for incorporating the bestfeatures of the ICC Statute provision and leaving out the dubious ones. Theformer include the clear prescription that the accused’s response be bothnecessary and reasonable, and making the defence available to all crimesincluding murder. The latter include the need for the threat to have beenimminent, and restricting the threats to death or serious bodily harm.

This article began with the hope that steps will soon be taken to achieve thelaudable goal, expressed nearly half a century ago, of developing a set of crim-inal laws that is shared by all African nations. Adoption by the African nationsstudied in this paper of the above formulation of compulsion and necessitywould constitute a significant first step in this process.

61 For an alternative formulation, see the American Law Institute’s Model Penal Code, ofwhich sec 3.02(2) states: “When the actor was reckless or negligent in brining aboutthe situation requiring a choice of harms or evils or in appraising the necessity of hisconduct, the justification afforded by this section is unavailable in a prosecution forany offence of which recklessness or negligence, as the case may be, suffices to establishculpability”. See further Robinson “Causing the conditions”, above at note 48 at 18–19and Yeo Compulsion, above at note 48 at 186–93.

62 In Gambia, Southern Nigeria and the Sudan, this outcome may already be attained byreading their provisions on reasonable mistake of fact together with those on compul-sion and necessity; see note 17 and the discussion in the accompanying main text.


Documents

Compulsion and Necessity in African Criminal Law - · PDF fileCompulsion and Necessity in African Criminal Law Stanley Yeo* Abstract This article sets out a comparativestudyof the