Friday, June 16, 2017

Elements of the charge of treason

If you dream that the President was murdered by a knife-wielding buffalo, is that treason? A charge of treason under section 40 of the Penal Code has two elements. Subsection (1) provides,

(1) Any person who, owing allegiance to the Republic, in Kenya or elsewhere—
(a) compasses, imagines, invents, devises or intends—
(i) the death, maiming or wounding, or the imprisonment or restraint, of the President; or
(ii) the deposing by unlawful means of the President from his position as President or from the style, honour and name of Head of State and Commander-in-Chief of the Armed Forces of the Republic of Kenya; or
(iii) the overthrow by unlawful means of the Government; and
(b) expresses, utters or declares any such compassings, imaginations,inventions, devices or intentions by publishing any printing or writing or by any overt act or deed,
is guilty of the offence of treason.
The first element is the "compassing, imagining, inventing, devising or intending" the treasonous act and the second element is the "expressing, uttering or declaring" of the "compassings, imaginations,inventions, devices or intentions" by "publishing any printing or writing or by any overt act or deed".

Merely dreaming that the President has been murdered by a knife-wielding buffalo isn't enough to sustain a charge of treason; one must also publish what one dreamed. Subsection (1)(a) and (1)(b) must be read together for the charge-sheet to be complete. An incomplete charge will be fatally defective and the prosecution will fail.

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