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IGNORANCE OF THE LAW EXCUSES NO ONE

18/05/2017 03:47:00 By Vusi Kunene

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IGNORANTIA juris non excusat is a Latin phrase commonly used by those with legal training on Roman Law. It basically means ignorance of the law excuses no one. Some use ignorantia legis neminem excusat which means the same thing.

This is an old principle of the law which is based on the rational that if people were allowed to be exculpated for their wrongdoing, then every person charged with a criminal offence or facing a civil suit would just plead ignorance of the law even where the person knew that law, and that person will be exonerated from liability because he or she said the law was unknown to him or her. I fully agree with the rational and application of this principle of law.

For those who sometimes visit our courts and listen to the proceedings, they would agree with me that a number of times we have heard an accused person stating that he did not know that what he was doing was wrong. I recall one case of a person who had killed a snake and said he was not aware that it was illegal in the country to kill a snake. Another was one where a man was charged for using a net when fishing.

This is what led me to thinking about the duty of knowing the laws. One great philosopher called Aristotle said; “Ignorantia iuris nocet,” (not knowing the law is harmful). But the law is a specialised field and not everyone has the capacity to understand it. One may know of the harm of not knowing the law but have no capacity to know the law.

This is even difficult for legal practitioners who study and apply it in their trade but they cannot know all the laws. This is worse for countries like ours where some laws are dormant for years and thereafter resurface.

One thing I know is that before a law comes into place, one of the requirements is that it must be publicised. It is the publication of the laws that worries me. Publishing the laws in gazettes is not enough. For one to know the law, as it is a specialised field, there must be someone to explain it to that person.

Accessing the gazette and not understanding what the law means does not make people aware of it.
The gazettes are written in English, which is a second language in the country and a number of our citizens do not know how to speak or even read the language.

So how are they expected to know the laws? Even the Bills and Statutes are in English and those parts of our society (mostly the elderly) are excluded from accessing the law because not being able to comprehend what is written there is lack of access, according to my understanding. Aristotle said not knowing the law is harmful but I would like to add that misunderstanding the law is equally harmful.

So if people have no one to explain laws to them then it is equally harmful. Some people may argue that people should approach the courts for their interpretation, but the expenses involved in doing that are too much for ordinary Swazis. Even going to people qualified in law comes with consultation fees.

Whose duty is it to explain the laws to the people? That is the question that boggles my mind. Bills in Parliament are debated by people who have no legal background. It is true that they have someone to explain them to them but do they fully understand them in one day?
These are our parliamentarians who have to pass laws for us which they sometimes do not understand. I happened to meet one former senator who was there when the laws implemented by the Swaziland Revenue Authority were debated but she lamented that the law was a bad one that has caught up with her.
I asked her why she allowed it to be passed if it was bad and the response was that she did not know that it was this ‘monster’ that they were allowing. That to me summarised how they pass laws without fully understanding what the implications are.
Ordinarily before a Bill is debated, my understanding is that our elected parliamentarians are supposed to go to their constituencies to explain it and get the views of the people who elected them and then parliamentarians take those views to Parliament.
In that way, people will know what is contained in the coming Statute if it will pass and will prepare themselves accordingly. But the problem is that parliamentarians do not have the capacity to understand and interpret laws and the explanations will come later in Parliament. My feeling is that the principle of ignorantia juris non excusat is a good principle but unfairly applied to people as they are convicted for offences which there was no way they could know about. I will not discuss the issue of the old laws today as Ignorantia legis neminem excusat.