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The law relating to non-fatal offences against the person is in urgent need of reform

Some words have been interpreted in case laws, for instance, the term malicious which is used in Section 20 and 18 is not defined by the Act but courts have defined it as mens rea in section 20 and “with intent” in Sec 18. Assault, battery, grievous bodily harm and actual bodily harm are some non-fatal offenses which are contained in Section 18, 20 and 47 of the Offenses Against Persons Act 18612. Generally, offenses against a person refer to any crime which is committed by use of physical harm or force against the victim. Non-fatal offenses include assault, poisoning, wounding and inflicting grievous bodily harm, and battery. Wounding or inflicting grievous bodily harm is a crime according to Sec 18 of Offenses Against a Person Act 1861 while administering poison is offense which is outlawed by Sec 24 of the same Act3. The law has not defined the word malicious which is contained in Sec 18 and 20. The law should be reformed to give a proper definition of malicious which in simple language may refer to bad motive of the offender. Conflicting arguments about mens rea have also been witnessed. Sec 47 of the Act provides the same mens rea as for lesser offenses such as a battery or assault. The law in this case is inconsistent since it not a requirement for the offender to realize the risk of injury and liability will arise even when the offender causes grievous body harm that result to minor harm . 4. The law is also inconsistent in the sentencing structure on the maximum sentence attached to each offense. For instance, offenses under Sec 39 of the Act carries a maximum imprisonment term of six months while an offense under Sec 47 provides for a maximum of five years imprisonment5. Mens rea which is equivalent in both Sec 39 and Sec 47 of the Act leads to variations in the sentence thus unjust. Sec 20 offenses of the Act are considered to cause more injury yet they carry the same imprisonment sentence as sec 47 offenses. According to justice and fairness principles of the legal systems, offenders should be morally distinguishable and be treated in a different manner depending on their motive of committing the crime. The Offenses Against the Person Act 1861, is completely outdated since it does not reflect the current social structure. New forms of communication, diseases and methods of committing crime have not been catered for in the law. For instance, Sections 18, 20 and 47 of the Act use the common word “bodily harm” which leaves psychological injury that the victim may suffer due to fear or medical complications due to transmission of diseases such HIV. For instance, Sec 18 of the Act makes it offense wounding and causing grievous bodily harm with intention to the victim, but it fails to give a clear definition of injury. However, courts have been of the opinion that injury should constitute both physical and any mental injury sustained by the person including unconsciousness, pain, and impairment of the mental ability of the person. Sec 20, which makes it offense to wound or inflict grievous bodily harm and Sec 39 on common law assault and battery does not define the nature of injury which can result from the reckless or intentional application of force to the victim6. The law on mens rea of battery needs urgent reforms. The prosecution should prove the unlawful application of force to the other person or the recklessness of the offender in his or her actions.

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