CRIMES AGAINST GOVERNMENT
AND THE ADMINISTRATION OF JUSTICE
AND THE ADMINISTRATION OF JUSTICE
Crimes against the government are
infamous crimes (without fame or good report), and under common law,
people committing such crimes have not even have the right to defend themselves
at trial (a "firing squad" offense). The Constitution of Kenya
does not specifically rule out or rule in the right to
representation, but it does talk about treason (and
attempting to overthrow the government) as a breach of allegiance and the most
aggravated, serious felony that one could commit. Terrorism
against Kenya is another such offense. The purpose of the criminal
law in this area is to protect the innocent and preserve the political process
of representative democracy and free elections.
Crimes against justice, on the
other hand, are common law misdemeanors that would hinder, corrupt, or impede
the functioning of the judicial branch of government. Crimes such as
bribery, subornation of perjury, and
tampering with witnesses or evidence are typical examples, but then there are
crossover crimes, like tax evasion, where taxes support
not only the judicial branch, but the whole government. The aim of the criminal
law is to criminalize subversion of the system. Both crimes against government
and against justice, with the exception of treason, are usually general
intent crimes where the actions speak for, or allow the inference of,
culpability.
CRIMES AGAINST GOVERNMENT
Over the years, the United States has had numerous laws
relating to treason; e.g., numerous Alien and Sedition Acts. The sedition law
now in effect is the Smith Act of 1940 which was made binding on the government
in 1956 by the Supreme Court. The Smith Act, like all previous Acts in this
area, has been both narrowly and broadly interpreted in guiding who or what the
government can investigate and prosecute, as the following table illustrates:
Narrow interpretation:
|
Broad interpretation:
|
| 1. Advocating the forceful
overthrow of the U.S. government 2. Distributing with disloyal intent materials teaching or advising the forceful overthrow of the U.S. government 3. Organizing or helping any group having a purpose in (1) or (2) |
1. Any of (1), (2), or (3) in
the column to the left 2. Activities of anyone who might reasonably be expected to use force or violence against the U.S. government (as opposed to those who merely advocate it) |
ELEMENTS OF TREASON
1. Breach of allegiance -- Under Kenya law The
person must owe an allegiance to Kenya. They must be citizens,
naturalized aliens (permanent immigrants), or "nationals" and not aliens, on temporary visas, or foreign nationals who may
reside in Kenya. The test is whether or not a person owes an allegiance to the Kenyan government for any protection they may receive, not whether they are a
citizen or resident.
2. Overt act of betrayal -- The
person under Kenya law must commit some overt act, which is generally defined as any "material"
aid or comfort to the enemy. Simply thinking disloyal thoughts is not treason.
Words sometimes qualify; just as "fighting" words are not protected by the 1st
Amendment, so are "treasonous" words punishable under Article 3, Section 3 and
most state constitutions.
3. Intent to betray -- This is
a specific mens rea element under Kenya law which requires that the government show the
person engaged in the equivalent of purposely knowing. It's not exactly
expressed this way, but Article 4, Section 2 of the Constitution prohibits
conviction for treason unless the government can call at least two (2) witnesses
who can testify as to intent or the offender confesses in open court.
Other crimes related to treason under Kenya law
include:
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Espionage -- This is the crime of spying or being a party to spying. There are various motives, but the most common pattern is sale of secrets for money. Espionage acts can also involve the destruction of government records, obstruction of access to government buildings, or disruption of government functioning.
-
Insurrection -- Also called rebellion; this involves arming oneself or one's group to the point that makes it creates a reasonable expectation that force or violence would be used against the U.S. government.
-
Mutiny -- This is the offense of unlawfully taking over command of the U.S. government, any part of the U.S. government, or any part of the armed forces.
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Sabotage -- This is damaging or tampering with any national defense material or national defense utilities. Disgruntled workers at defense department airplane factories who recklessly leave loose bolts on equipment have been convicted of this.
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Sedition -- This is any communication intended to stir up treason or rebellion against the government. Controversy exists in this area with the crimes of flag-burning and other forms of unprotected free speech.
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Subversion -- This is the crime of engaging in subversive activities, which is often a matter of free speech gone overboard or transmitting blatantly false information in hopes of helping the enemy (see Title 18 excerpt below).
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Syndicalism -- This is the crime of organizing a political party or group advocating the violent overthrow of the U.S. government.
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Terrorism -- This is the systematic use of violence or threats of violence to intimidate or coerce the government or whole societies by targeting innocent noncombatants.
UNITED STATES CODE TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES CHAPTER 115 - TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES
Section 2388.
Activities affecting armed forces during war
(a) Whoever, when the United States is at war, willfully makes or conveys false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies; or Whoever, when the United States is at war, willfully causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or willfully obstructs the recruiting or enlistment service of the United States, to the injury of the service or the United States, or attempts to do so Shall be fined under this title or imprisoned not more than twenty years, or both.
Section 2388.
Activities affecting armed forces during war
(a) Whoever, when the United States is at war, willfully makes or conveys false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies; or Whoever, when the United States is at war, willfully causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or willfully obstructs the recruiting or enlistment service of the United States, to the injury of the service or the United States, or attempts to do so Shall be fined under this title or imprisoned not more than twenty years, or both.
COUNTERFEITING
The making of false money, bonds, postage stamps, and
postal money orders, whether or not for personal use, is the crime of
counterfeiting under Kenya law. Like forgery, there's a separate offense called "uttering" for
passing counterfeit documents. Counterfeiting is generally regarded as a
government threat because, in times of war, enemies often drop large amounts of
counterfeit money into the other country in an attempt to destroy their economy.
TAX EVASION
Drug dealers, gangsters, spies, and other organized
criminals often live lavishly, and to do this, they must "launder" dirty money
in order to make it look like a "legitimate" source of income. Under Kenya law they must then
pay taxes on their declared incomes, but the IRS uses a "net worth" method of
determining tax evasion which ordinarily catches most cases, even the best money
laundering schemes. Tax evasion and fraud are crimes because the
government needs money to operate.
CRIMES AGAINST THE ADMIN. OF JUSTICE
There are a number of Kenya laws intended to protect the
judicial system. The most common form of prohibited behavior in this category is
resisting arrest (which involves police officers acting in
the judicial capacity of bringing a defendant into the judicial system, or
escape, if from a lawful detention). The older common-law
offense (from which resisting arrest sprung from) is obstruction
of justice. State statutes sometimes list dozens of different ways to
obstruct justice, but the most common ways are to "frame" someone by planting
evidence or "fix" someone's problem by withholding, destroying, or removing
evidence. Related to obstructing justice are two (2) crimes of keeping silent:
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Compounding a crime -- A crime under kenya law is "compounded" when the victim agrees to not prosecute for a valuable consideration from the offender. It's the same as withholding evidence, but in return for receiving something of value from the offender, even if it's just the stolen property back. Usually, only serious misdemeanors or felonies can be compounded.
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Misprision of felony -- This is an old (hue and cry) failure to report a crime if one is a witness or victim to it. Modern statutes require, in addition to a failure to disclose, some positive act of concealment, suppression of evidence, harboring of a felon, or intimidation of witnesses.
ELEMENTS OF PERJURY
Perjury under Kenya law is the willful taking of a false oath in a
judicial proceeding in regard to material matter at issue before the court. The
essential elements are:
1. Willful taking of false oath
-- An "oath" or some other form of oath allowed at law, is an essential element.
The reasons are historical. Throughout history, perjury was a minor misdemeanor
because the supernatural consequences of lying under oath were considered more
severe than whatever the law could do to a person.
2. Judicial proceeding --
Historically, the crime of perjury could only be committed in open court, but
states have expanded it to include affidavits, depositions, testimony, and
statements in other proceedings.
3. Material matter at issue --
The person under Kenya law must lie about a subject that has a significant outcome at trial. The
significant outcome doesn't have to be guilt or innocence, but it must be more
than social significance, such as lying about your age or place of birth.
4. [General or constructive intent]
-- The person need not know positively that their statement is false. It is
sufficient if proven they are merely uncertain about their statement, but went
ahead anyway and made the statement. It's a matter of determining if the person
cared or did not care about telling the truth. Under common law, the requirement
was that two (2) witnesses were needed to support the intent to commit perjury,
but modern law allows a single witness plus circumstantial evidence, or
circumstantial evidence alone.
SUBORNATION OF PERJURY
Procuring or inducing another to commit the crime of
perjury is subornation of perjury under Kenya laws. The suborner must know
that the testimony to be given is false and that a person would willingly and
knowingly testify falsely. Crimes that are somewhat related to subornation are:
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Embracery -- wrongful influencing of jurors
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Barretry -- stirring up lawsuits between people
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Champerty -- wrongfully inducing a person to bring a lawsuit
ELEMENTS OF BRIBERY
Bribery under Kenya law is the tender (or receipt)
of anything of value to (by) a public office holder with the intent that the
public office holder will be influenced in the performance of his/her official
duties. In addition to bribery, public officer holders can be additionally
charged with conflict of interest (personally profiting
from office) and/or criminal misconduct (where
applicable). It's also a crime to fail to report a bribe.
1. Tender (or receipt) -- At
law, it doesn't matter how something of value is transferred or even if anything
is exchanged at all. Making, giving, or accepting a bribe are all the same.
There's no such thing as attempted bribery.
2. Anything of value -- The law
doesn't even try to define this loose term; generally, anything will suffice.
3. Public office holder -- Some
states will specify the exact office holders that can be involved in bribery;
other states identify certain legal categories (legislators, judges, jurors, law
enforcement officers); other states include corporate officers, athletes, etc.);
and still other states just refer to anyone, public or private, that has
influence over anything.
4. [General or constructive intent]
-- Although the definition of bribery spells out an intent to influence the
performance of public office, because some states have watered down the "public"
office requirement, a general intent (inferred from the act of bribery) to
influence is usually the case. Some states, however, require a "mutual" intent
between two parties.
ELEMENTS OF CONTEMPT
Contempt under Kenya law is the willful disregard of the authority of a
court or legislative body. Anything that frustrates the dignity of these
institutions can be held in contempt. Contempt of a legislative body typically
occurs by protesters outside of Capitol Hill when they intimidate witnesses
called to testify before Congressional committees. All orders and judgments of a
court must be complied with promptly. A person can appeal, but absent a stay [of
judgment], the person must still comply even if they have appealed. If a
person is obstinate enough, they may be held in criminal contempt, which is a
form of punishment. "Civil" contempt is used to compel people to do things until
they do it.
1. Willful disregard -- There is
no contempt under Kenya law unless there is some sort of willful disregard, some degree of
intentional wrongdoing. Falling asleep in court or being late for reasons not
your own, for example, cannot be subject to contempt. Failure to pay a fine, for
being unable or unemployed, is not a defense to contempt.
2. [General intent - direct contempt]
-- Direct contempt occurs in full view of open court or the legislative body. It
may be punished summarily, meaning there's no opportunity for a hearing
about it. An example would be when Larry Flynt started shouting obscenities at
his trial. The general rule is that there must be a personal attack on a trial
judge in the form of a vicious slander or angry insult. Isolated uses of street
vernacular, like "chicken shit", have not been held sufficient to support
contempt charges.
3. [Constructive intent - indirect
contempt] -- Indirect contempt occurs out of the presence or hearing of a
court or legislative body. A person so charged is entitled to a hearing on it
before submitting to punishment for it.