Elements of an offence of "procuring own mis-carriage" by Johnson Yesaya

SCENARIO

Amina believing herself to be pregnant, agreed with Mr Mchele that they should use instruments and administer things to her with a view of procuring her mis-carriage. The instruments were in fact used and things administered but there was no evidence that Amina was pregnant. Basing on this facts, attempt the following questions.

i) what is the likely offence that Amina could be charged with?

ii) would the charge be same if Amina would have a pregnant?

iii) analyse elements of the offence identified in question (i) above

ANSWERS

What is the likely offence that Amina could be charged with.

Procuring Own Mis-carriage contrary to Section 151 of Penal Code[1]. Amina had an intention to conduct miscarriage and her acts or omission fall within elements or  scope of above mentioned offence. The above section of the law clearly provides that, a woman who intentionally use poison, noxious thing, physical force and any other means to destroy or lose pregnancy, is guilty of an offence of procuring own miscarriage. Amina used equipment to cause miscarriage to herself and due to that, she committed an above mentioned offence.

Would the charge be same if Amina would have pregnant

Yes, the charge will be the same if Amina would have pregnant. A reason to charge the same offence is that, even if she was not pregnant, she felt having something in her stomach and her intention to destroy it constituted a crime which is a creature of guilty mind. A person can be charged on evil mind even without evil act.

The basic elements of criminal offence includes “Mens-rea[2]” and “Actus Reus[3]”, in plain language, Mens-rea means evil mind and Actus Reus means evil act. In determining the commission of an offence, one need to consider those above mentioned elements which constitute criminal offence. In both circumstances of the scenario, Amina is liable to procuring own miscarriage due to her intention to commit offence.

Analyse elements of the offence identified in question one above

A person must be a woman to commit above mentioned offence, a provision clearly state that a “woman” at the beginning of the provision, this means an offence is likely to be committed by women and not men. Charging a man with this provision is immaterial because man can not conserve pregnant, a man can be charged with an offence connected to abortion in case he abetted commission of this offence, or he supplied tools used in conducting miscarriage[4].

A said woman must have a child in her stomach so as to establish this offence. A woman cannot destruct a pregnant she doesn’t have.

Also, there must be intention to procure miscarriage. In prosecuting her, prosecution need to prove her intention beyond reasonable doubt in connection to commission of offence.

Administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatsoever, or permits any such thing or means to be administered or applied to her. There must be a use of one among these ways to achieve miscarriage, the use of these listed ways to effect miscarriage falls within the scope of above provision which prohibit abortion.

Alternative count on this offence

Section 384[5] on conspiracy to commit offence punishable with imprisonment for three or more years of imprisonment may be used to charge offenders in this scenario. Amina conspired with Mr Mchele to commit an offence which is punishable to seven years in prison, their conspiracy to conduct miscarriage was not hundred percent fulfilled but there was an intention to commit abortion. As to my opinion I think, offender can be tried with this offence because she participated in conspiring commission of offence which fall within scope of above section.

Reference

BOOKS

Chipeta, B D (1982) The Public Prosecutor and the Law of Criminal Procedure: A handbook for Public Prosecutors. Eastern  Africa Publications Limited. Arusha. Dar Es Salaam.

Judicial Commission (1977). The Report of the Judicial System Review Commission. Government Printer. Dar es Salaam.

Robertshaw, R; Louw, A and Mtani, AW (2001) Crime in Dar es Salaam: Results of a City Victim Survey. A study

B.D. Chipeta, A Magistrate’s Manual, TMP Book Department, Tabora, Tanzania.

S. E. Mchome, Criminal Law and procedure, Faculty of Law, University of Dar-es-salam.

V.R. Manohar (et al), The Code of Criminal Procedure, 17^th Edition, Wadhwa and Company Nagpur, New Delhi, India, 2007

STATUTES

Penal Code Cap 16 R.E 2002

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[1] Cap 16 R.E 2019

[2]https://criminal.findlaw.com/criminal-law-basics/mens-rea-a-defendant-s-mental-state.html

[3]https://www.crimemuseum.org/crime-library/criminal-law/actus-reus/

[4]Ibid

[5] Ibid