The offence of conspiracy

Introduction

A conspiracy is an alliance between two or more people with the motive of committing an unlawful act or an act which though lawful in itself, becomes unlawful once it is the object of the alliance[1].The latter may occur when accomplishing a lawful end by unlawful means[2]. In the case of Bernard Kariuki Chege v Republic [2016] eKLR, criminal conspiracy is identified as an example of an offence in the category of inchoate crimes. Other crimes in the category include criminal solicitation and an attempt to commit a crime. Inchoate crimes refer to the offences which prepare for a further criminal act[3]. They are offences which have just begun and are not complete. An inchoate crime must be connected to the substantive crime and conviction can take place even if the substantive crime failed[4].The offence of conspiracy and attempt are similar. The only differentiating factor between conspiracy and attempt is that there is an agreement between two or more people plus the substantial step[5] in conspiracy while in attempt there is no agreement, just the substantive step. The defendants must have a specific intent to commit the crime and this must be proven beyond reasonable doubt[6].The intent can be deduced from either the circumstances or the facts[7]. Conviction takes place when it is proven that the accused persons formed an alliance with intent to commit the offence, began to execute the intention through an overt act[8] and were aware of the outcomes of their actions[9]. The legal framework on inchoate crimes allows the intervention of criminal activities before they take place[10].

 

Key elements which have to be proven for conviction of conspiracy

In criminal cases, mens rea and actus reus are important factors which must be considered always. There are 3 key elements, which constitutes the mens rea and actus reus, which should be proven for a group of people to be guilty of committing the offence of conspiracy[11]. These key elements are:

24. There must be an agreement between two or more people to commit a crime ‘The offence of conspiracy cannot exist without an agreement or combination of two or more persons’[12]The agreement can be deduced from the actions of the parties involved[13]. An individual cannot be guilty of the offence of conspiracy if the others who he allegedly conspired with are acquitted. This is seen in the case of Mulama -vs- Republic [1975] KLR 24. With the advancement in technology, agreements do not require the conspirators to actually physically meet. Communication can be through text messages, e-mails or phone calls. The agreement can include promises such as money in order to motivate the conspirators to commit the offence.
25. Each member of the alliance must have an intention to participate in the agreement and also to commit the crime. Every member of the alliance must be aware of the purpose of the alliance and this is what promotes the intention to participate in the agreement. There also has to be unity of intent by all the parties involved in the conspiracy.
26. An overt act must be performed to further the conspiracy. The overt act can be simply the preparation of the criminal activities[14].No one is punished for having the mere intent of committing a crime. There must be an expression for this intent. This can be done by just one member of the conspiracy. It doesn’t have to be all of them.

In a case of United States v Manton, Justice Sutherland mentions that it is not necessary for all the members of the alliance to know all the operations and participate in them. He further states that a person may join an alliance to commit a crime during its progress and still face charges for all the activities done.

However, in the case of United States v Barret, it becomes clear that a person must be fully aware of the motive of the alliance, accept to join it with this knowledge in mind and be accepted by the other conspirators. If the intent of the alliance is to achieve something lawful through unlawful means, it must be shown that the accused intended to violate a law in order to achieve a legal deed.

It is possible for one to be convicted of conspiracy and also the substantive offence on separate counts. In the case of Rebecca Mwikali Nabutola & 2 others v Republic[15], the appellants had been convicted of conspiracy to defraud and fraud while in Joseph Gathara Kimani v Republic [2005] eKLR, Joseph had been convicted of conspiracy to defile and defilement of a girl on separate counts. In the first case of Rebecca and two others, the judge stated that there was no duplicity of the offence and he further argued that ‘a charge is complete if it contains the specific charges that the accused is charged and any other necessary information’[16].

 

Defences for conspiracy

Abandonment

An accused person can use this defence when he completely and willing left the alliance and was not part of any overt act done by the other members of the alliance. The accused person must have informed the other members of his desire to leave the agreement or informed the police of the alliance in order for it to be clear that he left the conspiracy[17]

Impossibility

Impossibility is not a defence of conspiracy. In the case of Moses Kathiari Rukunga v Republic [2018] eKLR, the court determined that the material fact in cases of conspiracy is whether there was an agreement between two or more people with the aim of committing an act which would result to an offence. Whether the offence is possible to be carried out or not is immaterial[18].

 

The exceptions in the offence of conspiracy

Marriage

A person cannot be guilty of conspiracy if the other conspirator is his or her spouse[19]. This can also be applied in polygamous marriages. In the case of In R v Yilkyes Finok Bala and Others[20] , the court had to determine whether the rule is applicable in polygamous marriages. The court interpreted the statute in a manner that deemed polygamous marriages as legal and therefore they upheld the rule of innocence if the conspirators are spouses. In the case of Mawji v the Queen, [21]the lordships mentioned that the rationale behind this rule is that at times the law recognises husband and wife as one person. Archbold’s book[22] was also used as a secondary source of law during the proceedings.  In the book, the author states that apart from being considered as one person, husband and wife are also considered to have one will. These views are obtained from the biblical account of Genesis.

In the case of Kowbel v The Queen[23] the Canadian Court had to determine whether this rule is still applicable. A dissenting judge mentioned that husband and wife are viewed in both civil and criminal law as independent legal entities.

The other conspirator should be human

In the case of McDonnell[24], the defendant was charged with conspiracy. He was accused of conspiring with two separate companies. The defendant was the director of the companies. The court held that ‘a company and a director cannot be convicted of conspiracy when the only human being who is said to have broken the law or intended to do so is the director’[25]

Age

There is no conspiracy if the other conspirator is below the age of criminal responsibility.

Victim

A person can also not be guilty of the offence of conspiracy if he or she is the ‘intended’ victim of the offence.

Rationale for criminalising conspiracy

A conspiracy to commit an offence poses a threat to the society. This is because first, a conspiracy involves more than one person. Therefore, there are higher chances for the conspirators to achieve their ultimate goal. The plan formulated will also be efficient due to the participation of the different conspirators. Working in a group is always better than working alone.

Secondly, being in a group makes the members more committed to achieving their main purpose. Conspiracy shows just how serious each of the conspirator was, to commit a crime. All the parties involved really wanted to succeed and this was their motivation to join hands with others. The group members provide encouragement to continue with the plan. In some case, a promise like money might be included.

Criminalising conspiracy prevents a harmful act before its occurrence.

 

Legal framework on conspiracy in Kenya

There are different types of conspiracies which are punishable by the Kenyan law. The types of conspiracies have been listed in the penal code. These include:

1. Conspiracy to defeat justice and interference with witnesses (Section 117 of penal code)
2. Conspiracy to defile (S157)
3. Conspiracy to murder (S224)
4. Conspiracy to defraud(S317)
5. Conspiracy to commit a felony (S393)
6. Conspiracy to commit a misdemeanour (S 394)
7. General conspiracies (S 395)

All these have different penalties.

According to the Criminal Procedure Code[26], conspiracy to commit an offence may be found as a minor offence in a case where the major cognate offence is unproven.

There are other primary sources of law on conspiracy like the Companies Act, Kenya Defence Forces Act, Insolvency Act and Anti Corruption and economic crimes Act just to list a few.

 

Conspiracy to defeat justice and interference with witnesses.

This offence is found in the Penal Code under section 117.

Mens rea

The intention of the accused persons must be to obstruct, pervert or prevent the execution of any legal process civil or criminal and in so doing, defeat the course of justice.

 

Actus reus

It must be proven that there was an agreement or a conspiracy between two or more people.

It should be shown that the accused persons have acted in a manner which ‘dissuades, hinders or prevents a witness or witnesses from appearing in court and giving evidence’[27]. Persons who conspire to accuse any person falsely of any crime are also guilty.

A person who is guilty of this offence is liable to imprisonment for 5 years. In the case of Josphat Maina Karuoro v Republic [2013] eKLR, Josphat was charged with the offence of conspiracy to defeat justice and interference with witnesses. He took away P3 forms from James Chuchu Muchina, Jackson Mwaniki Njeru, Lukas Githuka Kagio, Anthony Fundi Njue and Emily Wawira Njagi by falsely pretending that he would assist them to be compensated.

 

Conspiracy to defile.

One is guilty of the offence if he induces any girl, boy, woman or man by means of false pretence or other fraudulent means to permit any person to have any unlawful carnal knowledge with her or sexual connexion with him and is liable to imprisonment for 3 years.

 

Conspiracy to murder

A person is guilty of the offence if he or she is part of an alliance with others to a kill another person. It is immaterial whether the person who is to be murdered is found in Kenya or not. In the case of Owalu and another v R[28], the accused were found guilty of murder because an agreement to commit the murder was proven.

 

Conspiracy to defraud

A person is guilty of this offence if,

• There is an alliance with another person or other people
• The accused affect the market price of any publicly sold item, defraud and extort other people’s property.

 

Conspiracy to commit a felony and misdemeanour

The two offences are found in sections 393 and 394 of Penal Code respectively. A person is guilty of this crime whether he committed it in Kenya or not. If committed in another country, the offence must be recognised as illegal in that country.

Issues raised by scholars on the offence of conspiracy

In a research paper[29], Alexander and Ferzan argue that at times the role of a member in a conspiracy is too minimal for them to be charged of the offence. They give an illustration of two people, Frankie and her accomplice who plan to kill Johnny. Frankie carries a gun and waits outside the house of Johnny. Frankie fears that a third party may see her with the gun or maybe even Johnny and decides to leave the premises. In case a third party might have seen her, the scholars argue, they would have feared for their lives.  The two scholars argue that even if this is the case, Frankie and her accomplice are not culpable for the offence of conspiracy to commit murder. This view is however not correct because, the act of Frankie going to wait for Johnny in order to kill him is an overt act or manifestation of the intention she and her accomplice had.

A scholar, Christopher Grout[30]argues that the rule exempting spouses from being charged of the offence of conspiracy is no longer applicable. He states that the rationale behind this rule of husband and wife being considered as one is no longer applicable and therefore the rule itself is not justified. He further claims that if the rule remains, there would be criticisms for situations of unmarried persons or rather persons who stay together without an official marriage or civil partnership.

In his paper, Steven Morrison, a scholar, argues that the laws on offence of conspiracy pose a threat to the freedom of speech. Factors like knowledge and close interaction of the conspirators can help in proving that they can form a conspiracy against the law. Steven argues that by adding an evidence of ‘bad’[31] speech, the prosecution can create a picture of offence of conspiracy in a case where it does not exist.

The scholar, Laurent Sacharoff[32] likens a conspiracy to a contract. He mentions that the factor of ‘agreement’ is found in both. In both a conspiracy and a contract, there is meeting of the minds and this is important in order to achieve the aim of the agreement. At times conspiracies include promises, just like in a case of a contracy and this is what can make one to be committed. Laurent identifies challenges faced when prosecuting conspiracy offences and they include: inaccuracy in determining the relationship between the alleged conspirators and incapability to determine whether or not the conspirators are truly capable of committing a crime.

 

Challenges faced during conviction of conspiracy

The scholars, Ferzan and Alexander, argue that the desire and intention are two distinct factors. They further identify that the prosecution may have a hard time determining whether an accused person simply had a desire to execute a crime or intended to do it. In the case of Frankie (mentioned in previous subtopic), the scholars conclude that it will be hard for the prosecution to determine whether Frankie actually had the intention to shoot Johnny with the gun she had. They further state that it would thus be a challenge to simply criminalise the intention of conspirators. A desire is a strong feeling of wanting something [33]

It is difficult for the prosecution to ascertain that the accused would really commit the crime and it is not just ‘mere thought or speech’[34] . It is possible for a group of people to talk about doing something and even prepare for it but in the end, they are not capable of completing their initial plans. The speech of the members of the group may also simply be a desire to impress.

There are situations where a person can be framed for a crime[35]. It can be difficult for the court to identify these instances and as a result, a person can be wrongly convicted. Circumstantial evidence or just fact may be misleading.

 

The prosecution has a hard time proving the agreement between the parties concerned due to the secretive nature of conspiracies.

 

Disadvantages of the laws on offence of conspiracy

The offence of conspiracy is an example of an inchoate offence. The substantive crime has not been committed or maybe failed.  The court depends on circumstances and facts when deciding cases of this scope. There are cases where the court uses facts like work relationships or friendship to conclude a conspiracy between a group or people. This may not be very accurate.

The laws also pose a threat to freedom of speech and expression.

Punishment of conspiracy

In many jurisdictions, the punishment for attempted crimes and conspiracy are less severe than the crimes where one successfully committed. The punishment for the offence of conspiracy is effective because the harmful act is stopped before it actually happens. There are different penalties for different types of conspiracies. The punishment depends on the statutory provisions. In Kenya, the Penal Code states the penalties. They are as follows:

1. Conspiracy to defeat justice and interference with witnesses – imprisonment of 5 years
2. Conspiracy to defile – imprisonment of 3 years
3. Conspiracy to murder – imprisonment of 14 years
4. Conspiracy to defraud – imprisonment of 3 years
5. Conspiracy to commit felony – imprisonment of 7 years if there is no other punishment. If the accused commit a felony which has a lesser punishment then 7 years, then that will be the punishment.