In my opinion, Criminal law has always been and will always be such a fascinating aspect of law and human behaviour. I remember having such a fixed mindset before joining law school; things were either black or white. There was never a grey area and from my perspective, you either committed murder or you did not. My position on this remains unchanged, only that I was introduced to a very intriguing factor: the frame of mind… mens rea. My criminal law professor had a better name for it; a guilty mind.

The frame of mind during the commission of crime made such a difference in the outcome of any criminal case such that if the perpetrator of the crime claimed and proved insanity; the same law that condemns him to an undesirable fate also protects him from unfair punishment.

This was very interesting to me and, naturally, I dug up as much as I could on the subject. In criminal law there are two things that are punished; the act that consists the offence (including the performer of the act) and the mind that conceives it. This is the reason why, for instance, if you thought about committing a crime of theft and did not follow through with it, one could never be accused of ‘criminal thinking’. Therefore, in criminal law, there consists two parts of a crime; the act (actus non facit reum) and the guilty mind (nisi mens sit rea).

None can exist independently of the other and be termed as a crime, or can they? There are some acts that constitute crimes independent of the frame of mind during commission of crime. These, in law, are called strict liability offences. These acts constitute crimes without the requirement of proving a guilty mind. What then constitutes a guilty mind? Intention to commit a crime and knowledge that that act constitutes a crime. Here, the rationale behind it is to raise the standard of the duty of care a person owes another, with the aim of deterrence of potential criminals from committing these acts.

Criminal law plays four major roles; to deter potential offenders from committing crime, to punish, to prevent crime and to rehabilitate offenders and reintegrate them back into the community. Strict liability offences are mainly meant for deterrence but in doing so, they help prevent and punish commission of offences. They are not meant to rehabilitate because the state of mind during commission of the offence is not factored in.

The mind. The juicy aspect of criminal law.

In order to understand why some individuals are susceptible to commission of crime than others, the mind becomes the major focus of study. In criminal law, the mind is what is rehabilitated.

Rehabilitation of offenders is the major focus of modern criminal jurisprudence because criminologists claim that it is easier to attempt to cure the mind than it is to punish the act. “The price of committing a crime is losing the vital currency of human transaction which is trust.” As a result, the society obtains its right to punish which lies in the social contract. The social contract “is a heuristic device that illustrates how individuals give up liberties to act with aggression in return for safety.” In simpler terms, individuals in a society have the right to react when one of them commits a crime. This is the reason why mob justice was such a popular means to punish perpetrators back then. However, if there is anything that I have learnt in life is that there are two sides of a coin and in every scenario, there are two very probable theories. When members of a society take matters into their own hands, they more often than not have only one side of the story and met out punishment on the ‘offender’ based solely on that. And this does not include our traditional court systems where both parties would be brought before the community of elders; given the opportunity to be heard and punishment meted out in accordance with the laws. Far from it. What the social contract does is that it requires the members of the society to relinquish the power and right to punish to the State or governing body; in return for protection from such acts of aggression.

In return, the Sovereign, Government or State grants them protection, rights and guarantees; and in turn obtains the power of the society to punish on behalf of the society itself. To punish and to rehabilitate are the roles of any State and in Kenya, they fall under the State Department of Correctional and Rehabilitation Services within the Ministry of Interior and Coordination of the National Government.

There are those who are for and against rehabilitation, based on the role rehabilitation supposedly plays in the reduction of crime rates. When prisons in Kenya were established, they were merely tools used to inflict pain on persons who violated the White man’s rule; and these were primarily the Africans. That was the end goal. Back then, the end justified the means. However, society has indeed progressed and according to some criminologists, there was a period in history where high value was placed on freedom such that its deprivation was viewed as very painful. This Enlightenment period (1715- 1789) saw that most needed justification for taking away a man’s freedom. Anastacia Ndimu in her Masters’ thesis states that studies conducted during that period proved that there was very little deterrence that was achieved from inflicting pain on offenders.

Society is not the only thing that evolved; different types of crime came along with society’s evolution. Crimes such as forgery indeed proved that offenders can also be those with an education. According to a journal by Omboto John, the present day criminal is not the same as one of, say 1970s when most offenders were illiterate and ignorant; today, a good number of prisoners attained a university and college education.

Cass, a classical thinker in his publication, ‘Protecting Society Against Crime’ asks whether it is possible that fear alone can be relied upon to change the fixed and rooted habits of a lifetime. In response to his own question, he opines that there is nothing in the stone walls and iron bars of a prison that can purge a human soul. To conclude his remarks, he states that the prisoner of today will be at liberty tomorrow, either as a citizen or as an unimproved offender. If the person is indeed unimproved, it is more likely that they will repeat in the commission of crime. Remember, it is in the mind that crime is conceived; therefore, it does not make much sense to punish the act and the offender without reforming the mind from whence the crime was conceived.

On a lighter note…

I remember watching the movie ‘Assassin’s Creed’ and sharing the same thoughts. A part of the movie sought to treat the criminal tendencies of man by robbing or purging his free will, whose DNA happened to be contained in the apple that was taken from a tree in the Garden of Eden. I wouldn’t say that I completely agree with this line of thought. Free will is but one aspect that connotes ‘life’. Liberty, freedom… “some of the finer graces of human civilization which make life worth living” without which living would be jeopardized; the words of a judgment delivered on 17th November 1982 in the case Board of Trustees v Dilipkumar Nadkarni.


Even though some refer to the Enlightenment period or the Age of Reason as one of the oldest jurisprudence of freedom, I find it interesting how personal liberty has always been at the hearts of those who make law. The 1215 English Magna Carta contains a clause on personal liberty; “No freeman shall be taken or imprisoned…but…by the law of the land.” Whatever the case, at the end of the day, I wholeheartedly agree with Cass: “…the prisoner wants the priceless treasure of freedom.” If rehabilitation is indeed easier for reformation than the brutality meted out on offenders, we might as well give it all we have.




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