Criminal law as noted by the Wolfenden commission has its foremost purpose as a law to regulate the public life of humans and to ensure orderliness and peaceful co-existence. Though the purpose of the criminal law is to provide sanctions for conducts which are deemed criminal , one other interesting jurisprudential aspect of criminal law is its concern with the kind , nature and status of those who are worthy of punishment, should bear criminal liabilities and those cannot reasonably be deemed to have committed a crime. The article examines the legal categorization between immaturity as incapacity to commit a crime and insanity as defense against criminal liabilities. It examines further the theoretical plausibility of the said categorization and offers further commentary on issues worthy of note taking by law makers and jurisprudential theorists.

On matters regarding the scope of the criminal law in relation to crime commission, the criminal law of Ghana recognizes two asymmetrical classes of persons. The first are persons who are deemed incapacitated to commit a crime and the second  are those who have capacity yet not worthy or deserving of mainstream criminal liability; worthy of punishment. But with the latter category , attention shall be paid to only the class of insane persons.  The author is of the view that this differentiation by way of classification is of an enriched jurisprudential value though of a defeasible moral basis and is of an irredeemable theoretical contradiction. Nevertheless a defense for its plausibility shall be made on grounds of policy inferred and cogitated by the author.

Section 26 of the of the Criminal Offenses Act , 1960 (hereinafter , Act 29) excludes persons who are under the age of 12 from being able to commit a crime. Section 26 is built on the philosophical opinion that an immature mind cannot commit a crime since it lacks an understanding of the  basis of criminalization , second it lacks the necessary precepts for forming a guilty mind and third , for it lacks a sense of accountability for it’s conducts.

On the first reason, it has been argued that persons below the age of 12 do not have a fully developed mental state with which they can understand why society criminalizes certain actions and when and how their actions can amount to a violation of those criminal proscriptions. Though, ignorantia justis neminem excusat still applies under the criminal law of Ghana, it appears that one of the policy reasons for excluding persons below age 12 from the criminal process is because , it is prudent to assume that they may not know what conducts amount to what is criminal and even if they do , their understanding may appear superficial. Thus, a lack of an appreciative understanding into these proscriptions may be a reason for their unconsidered adventurism into conducts that may otherwise be criminal.   The second ground of exclusion is the inability of a person under the age of 12 to form a guilty mind. One elementary aspect of a crime is a mens rea. Without that , a person cannot be deemed to have committed a crime. This is captured succinctly in the latin expression, actus reus non facit reum nisi mens sit rea. If a person under the age of 12 is presumed not to have the enabling mind to fully comprehend the intricacies surrounding the process of criminalization, then, it appears as a necessary consequent that such a person cannot appreciate the moral basis for the criminalization of the act and as such , will not see the guilt nor innocence in his or her deeds. Such a mind , cannot form guiilt qua guilt and thus , cannot form a mens rea. These reasons formed the policy and moral basis for the exclusion of infants and persons within a specified age rank from the scope of the criminal law. Thus , they cannot commit a crime since they are deemed not having the capacity ( the mental capacity _ matured mind ) to commit a crime.  I shall note this basis of exclusion as the immature but sane mind thesis of exclusion from crime commission.  What is worthy of note taking here is that with regards to the immature but same mind thesis , the justification for the exclusion is on the basis of immaturity and not the sanity of the mind.  The operative word ‘ incapable’ under section 26 of Act 29 , justifies the position that , section 26 indeed deems persons under age 12 as not capable of committing a crime thus cannot in any regard be ever guilty of a crime.

Section 27 of Act 29  on the other hand which applies to Insanity unlike section 26 , does not exclude insane persons from the scope of the criminal process. What it does is to exempt them from suffering punishment. Insane persons under the criminal law of Ghana can commit a crime but what they cannot be made to do is to bear the conventional liabilities for the crime committed. The theoretical basis , be it on grounds of morals or policy for the barring of insane persons from suffering liability for their conduct is hinged on the reason that such persons cannot appreciate the grounds( the nature or consequence) of their actions at the time of its commission thus, cannot reasonably be held for such acts. Under section 27 of Act 29, a person is insane or shall plead insanity if at the time of the said act , on grounds of imbecility , idiocy , mental derangement or any other disease affecting the mind , such person is unable to know the nature of his acts or the legal consequences( wrongfulness) of his act  or  was under the influence of an insane delusion of a nature which makes the person unfit for punishment. Subject to section 136 and 137 of Act 30 and section 27 of Act 29 , an insane person is deemed guilty but insane which under our law is known with the technical term , special verdict of insanity. Though deemed to have committed the said wrongful act , the law affords him or her the defense of insanity as a ground to prevent him or her from suffering the liability or punishment attached to the said act.  I must state here that the defense of insanity is only afforded to persons who at the time of the commission of the act , the said insanity prevented them from knowing the nature and legal consequences of the act. Thus, a person who kills at 8am with a sane mind yet the trauma of the killing made him insane at 8:05am, shall not be afforded the defense of insanity.

The remarkable jurisprudential difference between insanity as defense against punishment  and immaturity as incapacity to commit a crime is that , with the defense of insanity the insane person is deemed guilty of the crime yet the law affords him or her the remedy of not suffering the punishment attached to the stated crime  whereas in the case of an immature mind he is deemed not guilty of the said act because he or she cannot commit a crime. Illustratively, an  insane person can commit the crime of murder though shall not be liable to suffer death for it yet an eleven year old cannot commit the crime of murder stricto sensu though he or she may have de-facto taking the life of another. The position of the Ghanaian law with respect to insanity is contra-distinct from the English law position. Whereas under English law , insanity serves as a ground of no guilt ,under Ghana law , insanity only waives off the criminal repercussion of punishment. The English law position I shall note as the Matured but insane mind exclusion thesis.


Not Guilty because of insanity , and Guilty but insane.

The Ghanaian law recognizes the latter. Unlike under the English law where insanity is deemed to have rendered impossible a mens rea since the actor did not know the nature of the conduct or its legal consequences , the Ghanaian law presumes that an insane person can form a mens rea thus capable of committing a crime though recognizing that it is immoral for such a person to be made to suffer punishment for the said act.

This position of the Ghanaian law raises a serious jurisprudential debate on whether necessarily, a mens rea is needed under Ghana’s criminal law for the commission of a crime or whether there is a way we can show that an insane person can form a mens rea since if the law deems an insane person as a person who can commit a crime thus be guilty of a crime, then it means such a person can form a mens rea which is a necessary element in a crime. In order to reject the former position yet affirm the latter position the author argues that , Ghana’s law recognizes mens rea as a necessary element of a crime since the common law still remains part of our criminal law except with regards to common law offences subject to section 8 of Act 29 and Art 19(11) of the 1992 constitution. The common law position that a crime contains a mens rea and an actus is inferable from common law decisions applicable under Ghana law under Art 11(2) and as held also in the Ghana case of Kalibu v. Republic.  The author argues that , if incapacity is the only philosophical ground for a mind to be unable to commit a crime then , an insane mind which is a matured mind does not have this incapacity thus , presumptuously cannot be deemed to be incapable of forming a mens rea. This position is what appears to have been the basis for section 26 of Act 29.

But Opposition may want to argue that , if an insane person is deemed not to know the nature of the act nor its legal wrongfulness at the time of its commission , how can such a person be deemed to have ‘guilt’ to be able to form a guilty mind- mens rea, at the time of the commission of the crime. The opposition may want to draw an analogy between a person in somnambulism and an insane person as both not having the capacity of forming a mens rea since they both cannot know the nature of their conducts nor its wrongfulness since they were not of full sanity or consciousness. And since a person in somnambulism is deemed as lacking a mens rea to commit a crime then it will be counterintuitive if insane persons are deemed as having the capacity to form a mens rea.

I must state here , with an admission , that their criticism is weighty and insurmountable through any mental exercise on my part. But my only excuse , if it be given any ear at all , is that there is a policy basis for the presumption that insane persons can commit a crime by being deemed to be able to form a mens rea. If the assumption that insane persons can form mens rea is not upheld, it means insane persons can do acts which are de-facto crimes yet since they cannot commit crimes de-jure , the state cannot put them under confinement nor in rehabilitation centers regardless of how numerous or how threatening their actions are. It will be so because if they cannot form a mens rea then they cannot commit a crime ,thus, cannot be restrained or subjected to any restraint which guilty persons are subjected to. So in order to allow for the state to regulate and protect its citizens from the threatening conducts of insane persons , they are assumed to have the capacity to commit a crime though not deserving of the conventional punishment attached to those crimes. This provides a ground for the state to provide rehabilitation and reformation means to cure these insane persons since though guilty of the crime , they care only exempted from the conventional punishment which is attached to the said crime.

The author shall conclude here by noting that Ghana’s law does not regard insane persons as not incapable of committing a crime though it recognizes persons of 11 years or below. The author is of the view that , there is an implied philosophical assumption on the part of Ghana’s criminal law that only immature minds are incapable of committing a crime and this immaturity is from age 11 downwards. And since an insane but matured mind is not the same as an immature but sane mind , incapacity does not apply to the former as it is with the latter and the former only enjoys the defense of being exempted from punishment.