When is a crime not a crime?


In “Crime and Punishment”, Fyodor Dostoevsky explores the whole concept of moral agency, albeit in a quite unsettling though incisive manner.

The issue boils down to what was is right and what is wrong in a society. Given that we are hurtling headlong into what is routinely referred to as a global village, any contemporary discussion of moral agency would naturally stray into a universal look at humanity as a society.

But the core questions remain the same regardless of historical epoch, geographical location or technological considerations. Are all “crimes” immoral? Is there a time when a “crime” is justifiable?

It is a legal-moral conundrum that Italy’s highest court of appeals wrestled with in 2015 as it considered the case of a Ukrainian man called Roman Ostriakov.

Ostriakov had a few years earlier been convicted of theft after he was accused of stealing cheese and sausages worth US$4,50 from a supermarket.

The Ukrainian man was hungry and homeless, and he sauntered into a shop and picked a the food items so that he could help himself.

The lower courts, acting on the accepted moral and legal standards and definitions relating to crime found him guilty of theft and sentenced him to six months in jail. Some lawyer heard about the case, got interested and filed an appeal in defence of the hungry and homeless man.

It took a couple of years but finally in 2015 the highest court of appeals in the land ruled that Ostriakov had faced an “immediate and essential need for nourishment, acting therefore in a state of necessity”.

In essence, the court ruled that the man had not committed a crime by justifiably and reasonably sourcing food from an establishment that could afford to feed him.

The Italian media roundly praised the judgment for recognising that the “right to survival prevails over property”, and that the case served as a timely reminder “that in a civilised country not even the worst of men should starve”.

Apart from the central issue of Ostriakov having “stolen” food to satiate his hunger, another matter of interest arising from the case is the fact that the accused man was a Ukrainian at the hands of the Italian justice system.

A question we need to ask ourselves is: what would have happened if a homeless and hungry Congolese man, for example, were to “steal” food in a supermarket in – for example – Zimbabwe? Would there be compassion?

If a homeless and hungry Mozambican were to help himself to a small piece of meat and some bread in a South Africa shop, how would crime and punishment be interpreted?

These are neither rhetorical nor metaphysical questions. These are the issues that Africa is facing every day, even as we inch closer to the January 2021 start date of the African Continental Free Trade Area, and as we daily mouth high sounding nothings about Ubuntu.

Just this past week, the Botswana Defence Forces opened fire on and shot dead four Namibians on the Chobe River.

The military men said the four were “poaching” for fish. They were “foreigners” on Botswana’s territory.

Let’s quickly dispense with two definitions.

The Merriam-Webster Dictionary tells us a poacher is “one that trespasses or steals”; or “one who kills or takes wild animals (such as game or fish) illegally”.

The same dictionary also tells us that a foreigner is “a person belonging to or owing allegiance to a foreign country”; or “one not native to a place or community”.

Across Africa, Africans are called “foreigners” by fellow Africans who never take a moment to consider that the borders we use today – and which initiatives like the AfCFTA seek to remove – are nothing more than the arbitrary impositions of the Berlin Conference.

Not one African had a say in the creation of these farcical borders, borders which split communities that had peacefully coexisted for centuries before European greed sent looters down our way.

Today we are Angolans, Tanzanians and Zambians not because we chose to be such but because Europe said so. And today we kill each other because of borders not of our own making.

The tragedy played out on the Chobe this past week is the unforgivable continuation of the politics of divide and conquer that followed the Berlin Conference.

Closely related to the issue of borders and “foreigners” is that of “poaching”.

The everyday existence and local economy of the people who live in “border” areas are historically divorced from the legal mumbo jumbo that tells people that they can’t fish beyond a certain invisible line in a river.

Africa seriously needs to relook its approach to “poaching” and make a clear distinction between an Ostraikov who hunts an impala because he must feed his family and a gourmand who wants to line his pockets.

Authorities across Africa must remember the enduring warning issued by Jean-Jacques Rosseau: “When the people shall have nothing more to eat, they will eat the rich.”




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