Insanity; A Possible Defence To Evade Criminal Responsibility By Y. A, Usman Esq

INTRODUCTION:

Jurisprudentially, in Nigerian Criminal Law, insanity is a general defence upon which an accused person suffering from it (insanity) relies upon; in order to get away with offence committed. It is trite law that an accused that is in the state of mental disease or natural mental infirmity would not be held liable or responsible for any illegal act or omission done, even though law presumes every person sane, he can still raise the defence of insanity and prove that he lacks the degree of freewill and never know right from wrong at the time of committing the offence.

This paper intends to consider both Criminal Code Act which applies to Southern Nigeria and Penal Code Act in Northern Nigeria.

By virtue of section 27 Criminal Code Cap18 LFN 2004, the general rule is that, every person is presumed to be of sound mind until a reverse is proved. The section reads as follows;

“Every person is presumed to be of sound mind to have been of sound mind at any time which comes in question until the contrary is proved.”

In line with the above provision, every person therefore, whether sane or insane, by law be regarded as sane until he establishes the fact that he is suffering from mental illness or insane delusion, without which he will be held responsible for any criminal responsibility in accordance with the presumption of law which has not been rebutted.

Also, section 43 of Penal Code Cap.p.14 also provides that “A person is presumed, unless the contrary is proved, to have knowledge of a material fact if that is a matter of common knowledge.”

DEFINITION OF INSANITY:

To make it clear to the eyes, even though there is no universal definition of the word “Insanity”, it is very paramount to define it as it is defined in dictionaries, and its statutory and judicial definitions.

Insanity according to The black’s law Dictionary- (Garner, B., Black’s law Dictionary (1999, 7^th Edn). “Any mental disorder severe enough that it prevents a person from having legal capacity, and excuses the person from criminal or civil responsibility.”

The New International Webster’s Comprehensive Dictionary of the English  language-(Funk and Wagnalls, 2010 Edn) defines it as “Any degree of mental unsoundness resulting in inability to distinguish between right and wrong, to control the will, foresee the consequences of an act, make a valid contract, or manage one’s own affairs, or lack of sound sense; extreme folly.”

STATUTORY DEFINITION:

Insanity is defined in section 28 of the Criminal Code as follows;

“A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.

A person whose mind, at the time of his doing or omitting to do an act, is effected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusion to believe to exist. “

Section 51 of The Penal Code defines insanity as “Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”

The English Mental Deficiency Act which has been replaced by the Mental Health Act, 1959 also defines mental defectiveness as a condition of arrested or incomplete development of mind existing before the age of 18 years, whether arising from inherent causes or induced by diseases or injury.

JUDICIAL DEFINITION

In the English case of Bratty vs. A. G for Northern Ireland (1961), Lord Denning stated in explaining what insanity is all about ” A disease of the mind as any disorder that has manifested itself in violence in and is prone to re-occur at any rate is a sort of disease for which a person should be detained in hospital, rather than being given an unqualified acquittal by the court.”

From the foregoing statutory provisions of insanity, it is obvious as it against the general presumption of law, that a person who commits an offence and in a mental illness at the time of commission or omission, he neither know the consequence of what he is doing nor have the ability to understand what is right from wrong, such a person is not guilty by reason of insanity.

Explaining further, section 28 of the Criminal Code mentions categories of insanity which may evade (avail) a person from criminal responsibility. These categories are as follows;

(A)       Mental Disease: This include medical conditions that affects mental functioning. According to Diagnostic and Statistical Manual of Mental Disorder-IV (DSM-IV, 2000), mental disease is referred to as any disease that seriously affects the mental functioning of the mind.

Delving. J stated in one of his decision “the law is not concerned with the brain but with the mind in the sense that the mind is the mental faculties of reason, memory and understanding. If one reads for ‘ disease of the mind ‘ disease of the brain ‘ it would follow that in many cases insanity will not be established because it would not be proved that the brain could not be affected in any way, either by degeneration of cells or by any other way.  In my judgment, the condition of the brain is irrelevant and so is the question of whether the condition of the mind is curable or incurable, transitory or permanent.”

(B)       Natural Mental Infirmity: This is a natural mental disorder which may include the following persons;

(i)         Idiots: persons who are unable to guard themselves against any physical danger due to their nature.

(ii)        Imbeciles: they are type of people who are incapable of managing themselves or their affairs.

(iii)       Feeble persons: those requiring care, supervision and control for their own protection or for   the protection of others.

(iv)       Morally defectives: those with strong vicious or criminal tendencies and who require care supervision and control for the protection of others.

(C)       Uncontrollable Impulse: it is impulse to commit a criminal act which cannot be overcome due to mental illness which has affected the freewill or the power of self-control. (Abiama 2015)

Moreover, it is very important to put a line between an uncontrollable impulse occasioned by mental illness and an uncontrollable impulse occasioned by ordinary passion. The former is recognized by law while the latter is unknown to law. Uncontrollable impulse may be considered as a defence for an accused who pleads insanity due to the injury he had earlier sustained and there is medical evidence shows that the injury could have affected his brain. However, where the surrounding circumstances shows that he was able to control his action at that point in time but failed to do so, he will be criminally responsible for the act or omission. In Echem vs. The state, the accused was criminally held responsible because the surrounding circumstances pointed that he was able to control his action.” It is apt to know that the Penal Code does not mention an uncontrollable impulse as a defense.

RELEVANT FACTS TO BE ESTABLISHED IN DEFECENCE OF INSANITY:

In reliance on insanity to evade the criminal responsibility, the onus is on an accused person who must prove some facts to establish his defence. What must be established and proved are as follows;

Section 28 of The Criminal Code as read above stated that, to raise a defence of insanity, that mental condition should be such that could deprive the accused of capacity;

(1)        To understand what he was doing; or

(2)        To control his actions; or

(3)        To know that he ought not to do the act or make the omission complained of as constituting the actus reus of the offence charged.

Section 51 of The Penal Code stated what to establish as a defence as follows;

(1)        That something administered to him without his knowledge or

(2)        Against his will reason of which he suffered from which in fact would lead to his

(a)        Incapacity to know the nature of the act or

(b)        That he was not aware of doing something wrong or contrary to law.

Udofia vs. The state, Obaseki, J. S. C., held that an accused person affected by delusion can only be relieved of criminal liability

1-         If at the time of doing the act or making the omission he is in such a state of mental illness or natural mental infirmity as to deprive him of capacity to understand what is doing, of capacity to control his actions or of capacity to know that he ought not to do the act or make the omission     or

2-         Where he had absolute defence in law, i.e.; the constitution.

It must also be borne in mind that, it is not every form of mental disorder can avail an accused person and a mere medical examination by a medical officer is not enough to determine and establish the insanity, rather, it must be confirmed whether at the time of committing such offence, the accused was sane or insane in the legal sense. Thus, the court must carefully look into the deprivation caused by the mental illness. In Guobadia vs. The state (2004)6 NWLR (pt.869)360, the court held that ” A mere evidence that an accused person had mental disorder without showing that the disorder deprived the accused of the capacity to understand what he was doing and to know that he ought not to have done the act which is called in question is no satisfactory evidence of defence of insanity under the law.”

It is also a duty of the court in all cases where the defence of insanity is raised to consider the circumstances that surround the matter in order to know whether at the time of commission or omission the accused was in such a state of either mental disease or natural mental infirmity as to deprive him of the capacity to control his actions. In Josephine Ani vs. The state (2002)10 NWLR (pt. 776)644, U. Mohammed, J.S.C; said:” In all cases where a plea of insanity is raised as a defence, it is very material to consider the circumstances which have preceded, attended and followed the crime. It is very important to find out;

(1)        Whether there was preparation for the act,

(2)        Whether it was done in a manner which showed a desire for concealment;

(3)        Whether after the crime the offender showed consciousness of guilt and made efforts to avoid detection, and

(4)        Whether after arrest the offender offered false excuses and made false statement.

It is now a question of law to determine whether or not section 28 of The Criminal Code and section 51 of The Penal Code cover the insanity caused through Juju or witchcraft as a defence. Section 28 of The Criminal Code does not in any way refer to the insanity caused by either juju or witchcraft; it only mentions mental disease or natural mental infirmity. And as a matter of fact, mental disorder caused by either of the two is not natural and the section mentions natural mental infirmity.

In Beneon Ihonre vs. The state (1989)40 NWLR (pt. 67)778 in this case, the issue was whether if belief in juju or witchcraft produced a state of insanity, it would be a defence under section 28 of The Criminal Code Act.  His Lordship Oputa, J.S.C.;as he then was stated as follows;

“My only comment here is where does one draw the line between superstition and delusion? Delusion if established affords a defence under section 28 of The Criminal Code but superstitions does not… A belief in witchcraft may if proved, amount to a delusion in which case the criminal responsibility of the accused holding such belief would be based on the law relating to the defence of delusion and not by simply dismissal as superstitious.”

Also in Queen vs. Ali Eriyamremu, the learned trial judge Morgan, J. who was later C.J.W.N said:

 ” Having regard to the prisoner’s reference to her worship of juju and to witchcraft and to the clear manner in which she gave her evidence I am of the opinion that, even if it is arguable that at the time she killed the girl, she was afflicted with mental infirmity which deprived her of capacity to know that she ought not to kill the girl, on the balance of probabilities the infirmity was not natural and that it was induced by the prisoners worship of juju and/or witchcraft.  In my view, her defence of insanity must therefore fail because mental infirmity which is self-induced is not natural and is not a defence to insanity under the provision of section 28 of the Criminal Code.”

It is important to note that, juju or witchcraft is prohibited in section 207(2) and 210 (b) of the Criminal Code.

” Any person who accuses or threatens to accuse any person with being a witch or with having the power of witchcraft, is guilty of a misdemeanor, and is liable to imprisonment for two years .” with this provision, I submit that juju or witchcraft is unknown to law”.

In Edoho vs. State (2010) FWLR(pt. 530) 1262 SC. In this case, the appellant was charged with murder of one Akanimo Jacob Edoho contrary to the provision of section 319(1) of The Criminal Code. At the trial, the Appellant relied on the defence of Insanity and alleged that he stabbed the deceased with a dagger because he suffered temporary insanity through witchcraft. He stated that the incident was beyond his control as he was then under the spell of witchcraft. At the end of the trial the trial judge rejected the appellant’s plea of insanity and convicted him as charged. On appeal, the court of appeal affirmed the conviction and went further to the Supreme Court and the decision was also affirmed.

It is my view that even though no section of the Criminal Code and Penal Code considers the supernatural belief such as juju or witchcraft to be a fact to be established and raised in the defence of insanity that causes in any reasonable person a sudden or temporary loss of his right sense, the two Acts recognize and categorize them as offences. Both the Criminal Code (S. 210), and The Penal Code Acts (S. 215 and 216) respectively prohibit the sale of juju and charm or possessing them or having the power of witchcraft. It is submitted that both Acts impliedly believe that, juju and witchcraft are real; in view of this, the effect of any of them should also be taken into consideration and treated alongside the defence of insanity, this is because they have the same effect with mental disease and natural mental infirmity.

Not only this, one can safely say that section 51 of The Penal Code which stated ” a person of unsound mind “may be interpreted to cover mental illness caused to someone through juju or witchcraft. This is left to the court to interpret it to cover it.

CONCLUSION

Undoubtedly, from the foregoing explanation, insanity is a defence which may avail an accused person from criminal responsibility; provided that the accused proves his case beyond the balance of probabilities as required by law.

It is absolutely unheard of, to see an imbecile, idiot and the likes who are mentally deranged to assert with confidence that “if I kill or injure you; my case is not in court “. That is a common statement from laymen. A mentally deranged person is presumed sane until he establishes the fact stated above before the court, and also the statement made or the act done before, during and after the commission of the crime might be considered and used to get him convicted, and this would not allow criminals to commit more crime by hiding under the clock of the insanity.

Finally, our law as far as the defence of insanity is concerned calls for amendment in order to incorporate some issues which are left untreated such as a killing occurs as a result of belief in the supernatural powers and stop the rigid application of common law of crime.

Y. A, Usman Esq, Email: rohees9090@gmail.com, Phone: 07033589425