Driving around Cape Delgado you are blessed with moments of nice reception such that you can listen to Malawi radios without interruption when you are lucky. So, when I opened my radio on 17 April 2019, I understood a Zodiak presenter as reporting an incident in which an ambulance driver (from Area 25 Clinics) who, in an attempt to save lives of patients and a child who was on oxygen, did not stop in respect of a president’s convoy and was subsequently asked to appear before the police in Lilongwe. It was immediately clear that the police thought the driver’s act of driving while a presidential convoy was passing, was wrongful. Was it?
It is common knowledge that where a president’s convoy is using a public road, the law requires that all other road users should in general, stand still or use alternative roads where applicable. The reasons are intuitive, and could include safety concerns since the cars in a convoy usually drive at speeds that are higher than allowable speeds. It is also likely to accord honor to the president as he rushes to work on other important things. Sure, all of us have work to do but the leader of the nation can, under certain circumstances be justified to enjoy road preferences.
Having said this, the ambulance driver was confronted with an interesting situation in which on the one hand, he was supposed to discharge his legal duty to rush the patients to the nearest better hospital as directed by his superiors at the hospital a quo, and on the other hand, to behave as any other road user , wait for the usually very long presidential convoy to pass. It is likely that the latter would increase the likelihood of disease complication for the patients and perhaps leading to death. In the end he chose to join the convoy, in other words, he did not stop.
It is submitted here that although the police are not necessarily wrong to ask the driver to appear before them, the drivers actions were lawful and he should never be convicted by any impartial court. The ambulance driver can relying on a wider menu of defences including the following:
1). There is no law that prohibits him to rush with patients to a hospital in the event of a presidential convoy. Normally, both the driver and the convoy are allowed by the law to enjoy preference which implies that in the event like this where there is a possible conflict, the facts of the case matter. This driver was not alone but with patients needing immediate care.
A sub defence here is that he can allege he was acting in official capacity .The president was coming from one rally to another meeting in pursuit of his second presidential bid. The right to a meeting and a right to life if weighed against another, it is obvious the driver needed preferential treatment. In any case, in line with the general principles of legality, there is no crime nor punishment without the law (Nullumcrimen sine lege), the driver cannot be convicted because his act did not accord with definitional elements of any known crime.
This consideration or rule corresponds to the presumptionin the interpretation of statutes that a provision in an Act that is ambiguousmust be interpreted in favour of the accused (Hanid 1950 (2) SA 592 (T)).Again, in Director of Public Prosecutions, Western Cape v Prins2012 9 SACR 183(SCA), it was contended that no crime is created in the absence of a penalty, which is likely the case here because there is no law.
After all, if anyone was to be found right, it was the driver of the ambulance as he was protecting a greater right. If this defence was to prevail, the latter part of legality would apply only to the ambulance driver. It is doubtful a driver of a normal car carrying patients would rely on it.
- His second possible defence is one of necessity. In the event that it is argued that he had a case to answer, he can rely on the defence of necessity. At common law, a person acts out of necessity – and his conduct is therefore lawful – if he actsin the protection of his own or somebody else’s life, physical integrity, propertyor other legally recognised interest that is endangered by a threat of harm thathas already begun or is immediately threatening and that cannot be averted inany other way; provided that the person who relies on the necessity is not legallycompelled to endure the danger, and the interest protected by the act of defenceis not out of proportion to the interest threatened by such an act (see Synman, Burchel, inter alia).
In this case the driver saves a more important right to life compared to a delay to a meeting, and moreover, the act he is engaged in is likely the only act that one can take to get a critical patient to a hospital. There are no air ambulances in Malawi and hence the land-based ambulances are the only logical and effective means. A threat is in subsistence since the patients are still ill and in critical conditions. On this account therefore, the driver does not commit a crime and his actions are lawful on the basis of necessity. Interesting cases applying this rulein the neighbourhood include S v Pretorius 1975 (2) SA 85 (SWA), S v Goliath 1972 (3) SA 1 (A), Maimela v Makhado Municipality and Another 2011 (2) SACR 339 (SCA) among others.
The important point to note here is that this defence would be available even if the driver was of a civilian car which had been moving patients under the same circumstances. Official capacity as that of an ambulance driver is not important for its application.
The third possible defence he may mount can be found at the level of culpability. This is related to, and can draw from arguments in the first defence on absence of laws. For a person to be criminally liable it requires that on top of the crime being consistent with legality, definitional elements and being unlawful, the accused needs to have acted with intention or negligence.Culpability is criminal capacity + either intention or negligence. It is not doubtful that the driver is criminally capable because it has not been alleged that he lacked either an ability to differentiate right from wrong (cognition function) or to act with an appreciation of wrongfulness (conative function).
However, the driver can argue that he lacked both intention and negligence because as far as he was concerned what he was doing was the correct way of doing things in the wake of very ill patients needing emergency medical care. Again, he lacked intention because he did not have the cognitive elements in terms of knowledge of the unlawfulness of what he was doing, and definitional elements of a crime associated with rushing patients to hospital in the presence of a presidential convoy.
Negligence can also be assailed because a test for negligence is objective. It hinges on what a reasonable driver (diligens paterfamilias) in his situation would have done. A reasonable ambulance driver wouldn’t likely give a chance to time wastage while carrying very sick people as such a reasonable person would know death as a result that often befalls such patients. He would hence act to save them and hence would have rushed regardless of any convoy also rushing.
In conclusion, therefore, the police should simply drop it and let the ambulance driver continue with his role of saving lives. The one thing they can do is to approach the court to answer this question of how to regulate the law that governs road preference in the event of a conflict between any two preferred parties. It would be good to develop the law as to offer clear guidelines in general and specific common cases, as well as providing exceptions to such general rules.
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- The author has expertise and passion in Economic, legal and political analysis and the views here are his own. They are meant to generate discourse around these listed areas in good faith and theydo not represent those of any institution or individuals with or around him.