Almost every educated Ghanaian must have used the phrase “age is just a number” to downplay the weight of age in our daily lives. We do this when young people achieve great feats, or to disregard age difference between amorous couples.
But is age always just a number? Like those inscribed on jerseys of athletes? Does the law regard age as just a number?
These questions lead us to consider the implications of the age of a person in the law. A cursory look at some aspects of the criminal law reveals the implications of the age of a person on being liable for or being a victim of a breach of law.
This essay considers the implications of age in the criminal law of Ghana highlighting how the age of a person could make them liable for or a victim of certain popular offences. The relevance of age in these offences is seen in the definitional elements of the offences such that where the elements of the offence require an age limit for the offender or the victim, we realize that age is not just a number but a salient element in determining the victim or the perpetrator of that offence.
This article will be in 3 parts; Part 1 considers the duration before and during birth. Part 2 considers the duration after birth to age 12 years and to age 18 years. Finally, Part 3 considers the duration of beyond 18 years of age and after death. The conclusion sums up the implications of age in the criminal law of Ghana to re-emphasize that age is not just a number.
BEFORE AND DURING BIRTH – THE BORN ALIVE RULE
“Before I formed you in the womb, I knew you” Jeremiah 1: 5 Before Birth
Before birth, a fully formed human being in the womb of its mother has no age. Age is counted from the time the person is born. However, modern science makes it possible to consider the how long the foetus has been alive in the womb of the mother so we refer to the foetus according to the number of months it has survived in the womb of the mother.1
Considering criminal implications, the foetus has no criminal liability because we cannot possibly consider a foetus forming mens rea and performing actus reus unless we see John the Baptist’s kicking in the Martha’s womb as an intentional act of battery on Martha.2Neither can the law administer punishment to the foetus while unborn or even after it is born because it falls below the age of criminal maturity. As such, at that age (whether it is considered in the negatives or as preparatory to age), there is no criminal liability for the foetus.
Nevertheless, at that age, the foetus can be considered a victim of certain offences. They can be victims of the offence of abortion or miscarriage under section 58 of Act 29. This offence is defined as the premature expulsion of conception from the uterus or womb before the period of gestation is completed”. This section criminalizes intentional abortions unless it is done under prescribed conditions. The victims are specifically stated – “conception” – the unborn. As such, after the mother is delivered of a baby, the baby cannot be a victim of abortion or miscarriage.
At The Time Of Birth
Ghana’s criminal law recognizes ‘at the time of birth’ or ‘at birth’ as a separate period in life. Section 61(2) of Act 29 defines time of birth as “the whole period from commencement of labour until the time when the child so becomes a person that it may be murder or manslaughter to cause its death”. Practically, it covers the whole duration of labour until the baby is born alive. Under Section 60 of Act 29, causing harm to a child at birth is an offence so the foetus before birth is completed can be a victim of this offence.
The Born Alive Rule
Surprisingly, the unborn or babies at the time of birth cannot be victims of murder or manslaughter under the laws of Ghana. When Section 47 of Act 29 defined murder as “intentionally causing the death of another person by any unlawful harm”, the contemplated victims was specific – a person. But why can’t human beings fully formed in a womb fall within the definition of a person before they are born?
It is called the ‘Born Alive Rule’. At common law, to be recognized as a person one ought to be brought forth from its mother wholly and ‘born alive’. It is codified in section 66(1) of Act 29 that a child “should have been completely brought forth alive from the body of the mother” in order to be considered ‘a person’ for the purposes of murder or manslaughter3.
Nevertheless, in Section 66(3) of Act 29, where the victim was born alive and lived shortly before dying from harm caused to it before being born, the accused may be guilty of murder or manslaughter as the facts best prove. The baby victim is recognized as ‘a person’ after being completely brought forth alive4.
Concealment Of The Body Of A Child
It gets clumsy in Section 62(1) of Act 29 where the law defines and criminalizes the concealment of the body of a child. The offence entails concealing the fact of the birth, existence or death of a child from the general public whether the child was born alive or not. The born alive rule is immaterial in this offence because the focus is on concealment rather than the fact of life. But it is clear that the victim must be a child.
In effect, it is suggested by the criminal law of Ghana that the unborn cannot be perpetrators of offences because they are below the threshold of age of liability or maturity. However, they can be victims of some offences where they are the stated victims. In those instances, the law seeks to protect the unborn as if to say “before I formed you in the womb, I knew you”5.
AFTER THE TIME OF BIRTH TO AGE 12
“For unto us a child is born; unto us a son is given”6.
From the time the child is brought forth completely alive, the law recognizes them as ‘a person’. They are fully recognized as a human child and age starts to count. Now let us consider the implications of their age on their criminal liability and on being a victim.
From day one to age 12, is a significant period in the criminal law of Ghana. It is from day one that it constitutes murder or manslaughter to suffer death by unlawful harm (section 66(3)). Not only murder or manslaughter but, ceteris paribus, all offences against ‘a person’ can be suffered by people from this age. They are mature victims of offences.
Although they can be victims, according to the criminal law of Ghana, they cannot be offenders or perpetrators of criminal offences. Neither can they give valid consent. Why can they take but not give?
It is called ‘Doli Incapax’7.This maxim operates to the effect that persons below the set age of maturity are deemed “incapable of committing a criminal offence” (Section 26 of Act 29)8 .They lack the ability to form mens rea because they cannot intelligently evaluate the effects of their choices and actions. Other moral and ethical considerations also support this maxim to the effect that no crime is committed as no mens can be deemed to have been formed.
The worst the law can do is to warn their guardians or appoint another more responsible guardian to counsel or train up the child. But they are not prosecuted and punished.
With the same explanation, under Section 14(a) of Act 29, persons below twelve years of age cannot consent to any offence to which consent is a defense. The consent of a child under twelve years even if factually true is deemed legally void and inoperable for the purposes of the criminal law.
So in effect, persons below age twelve years can use their age as a shield from criminal liability but they can be victims of many offences against a person. This is a function of their age as we realize that age is a defining element in this proposition of law.
AGE 12 TO AGE 18 – JUVENILE
“Foolishness is bound up in the heart of a child, but the rod of correction shall drive it far from him” Proverbs 22:15
The protection from criminal liability under Section 26 is lost at age 12. Henceforth, a person is expected to be responsible for their choices and actions. But not totally.
The law differentiates juvenile offenders from adult offenders. Criminal prosecution against persons between age twelve years and eighteen years are significantly different from the ultimate procedure. Their matters are handled by specialized panels instead of the criminal courts with juries and judges. Why?
It is called Juvenile Delinquency. Sections 1(1) and 60 of the Juvenile Justice Act, 2003 (Act 653) defines a juvenile as “a person who is under the age of eighteen years who is in conflict with the law”. Their matters are handled according to the Juvenile Justice System.
The first protection for a juvenile offender is found in Article 15(4) of the 1992 Constitution which demands that juvenile offenders be kept separately from adult offenders. Section 2 of Act 653 also provides for different treatment for juvenile offenders except under exceptional circumstances in section 17 thereof.9
At this age, the criminal law recognizes that the person is of full criminal capacity both as a victim and as an offender. However, their cases are treated differently. A juvenile victim is to be shielded by concealing their identity from the public, offered private hearing or trial, counselling, and their punishments considerably reduced because correction (and not retributive punishment) is the focus of juvenile justice.
Age 16 – Consent To Sexual Offences
Sixteen years always reminds us of Mzbell.
But in Criminal Law, despite the capacity to consent after age 12 years, the law reserves the capacity to consent to sexual activities to age 16 years. In section 14(a) of Act 29, a person must be above age sixteen years to be able to validly consent to sexual activity. This is an extension of the law’s paternal protection of minors from premature exposure to sexual activities making defilement an offence under Section 101 of Act 29.
Age, once again, becomes quintessential in the eyes of the law for the in determining liability and in defining victims. A person between the ages of twelve years and eighteen years is given peculiar treatment because of their age.
AGE 18 ONWARDS – AGE OF MAJORITY OR ADULTHOOD
“When I was a child, I spoke as a child, I understood as a child, I thought as a child; but when I became a man, I put away childish things” 1 Corinthians 13: 11.
The criminal law’s age of maturity is eighteen years. Then, a person is deemed to be of full capacity and responsibility for their choices and actions. He is a now a man.
At this age, one can be the victim of almost all offences committed against a person except those offences with age specific elements (e.g. defilement, child labour, etc). They can also be held liable for offences committed by a natural person. Criminal prosecution can be brought against them and they may suffer punishment when found guilty.
Non-natural legal persons fall within this category as the law creates their legal personality as mature legal entities.10 This principle makes them liable for all offences for which they are contemplated and when the corporate veil is lifted, the natural persons behind the corporation may be personally liable.11Non-natural legal persons can also be victims of offences against their property12.
“For the living know that they will die, but the dead know nothing…” Ecclesiastes 9:5
Age ceases at death. After death, a person becomes incapable of committing a crime.
Neither can they be punished. Nevertheless, the posthumous trials can be held for various reasons but the facts relied on in such trials are as happened when the deceased was alive.
The deceased could however be a victim of a crime against his person or his property. Hindering the burial of a corpse or causing harm to a corpse is an offence under Section 285 of Act 29. Trespassers of the estate of the deceased may also be prosecuted.
So even after we “stop the count”, the person can be a victim of certain offences.
This cursory observation of the criminal law of Ghana reveals that age is not just a number. Age is a very big deal. Age is a critical indicator of liability in certain offences and an indicator of a possible victim in some other offences. In appropriate circumstances, age can be a sword in proving liability and a shield in denying liability.
Considering that before a person is born alive until he reaches age twelve years, he is exempted from criminal liability, the age of a person becomes important. Considering further than from age twelve years to age eighteen years their matters should be handled by a juvenile justice system, the age of a person becomes more important. Further considering that being eighteen years of age indicates maturity, we can then say that age plays such a pivotal role in converting the minor into maturity.
Age is clearly not like the numbers printed in the jerseys of athletes. Age identifies who is liable for which offence and who is a victim of which offence. This comes to remind us that, in our daily dealing with individuals, we must bear in mind that age definitely is not just a number to undermine.
1 BA English and Psychology; LLB (University of Ghana) email: firstname.lastname@example.org. Biblical quotes are inserted herein as aesthetic allusions and not as statement of law.
2 Luke 1: 41.
3 See State v. Anonymous (Connecticut, USA); Some legal systems have introduced Fetal Homicide Laws to cater for intentionally causing death to the foetus by unlawful harm. However, these laws are inapplicable in Ghana.
4 The Superior Court of Connecticut again in State v. Courchesne, found the accused guilty of murder where the victim died at 42 days old.
5 Jeremiah 1:5.
6 Isaiah 9: 6.
7 Or the defence of infancy.
8 12 years in Ghana; 10 years in England and Wales and differs based on the criminal law of each country.
9 Section 17 of Act 653 regards the jurisdiction of other courts over juvenile offenders. It basically denies jurisdiction of a court of summary jurisdiction and demands transfer to a juvenile court constituted for the place. Exceptions are the absence of a juvenile court, applications for bail, a charge joined with an adult offender or a charge punishable by death if committed by an adult offender.
10 Section 18 of the Companies Code, 2019 [Act 992] provides that companies are formed with full capacity.
11 AG’s reference No. 7.
12 Republic v Yebbi & Avalifio [1999-2000] 2 GLR 50.