Ani Comfort Chinyere (Mrs.)

LL.B (Hons.) BL; LL.M., Ph. D

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Introduction

The term Criminal Justice connotes the machinery, procedures, personnel and processes, which have to do with the operation/administration of the criminal law[1]. The criminal justice system is the aggregate of the consequences of procedural rules and policies that are applicable from the time of arrest, which is the first contact of the offender with the criminal process to the very last stage of the process which is conviction and sentence.[2] It is the sphere of the administration of justice that seeks to do justice when a crime is committed.[3] In a broad sense, it covers the arrest, trial, conviction and disposition of offenders.[4]

 

The United Nations has recognized that the inherent dignity and the equal and inalienable rights of all members of the human family are the foundations of freedom, justice and peace in the world[5]. The state social order of Nigeria as a nation is founded on ideals of Freedom, Equality and Justice.[6] In furtherance of the social order, every citizen is to have equality of rights, obligations and opportunities before the law.[7]  The rule of law presupposes amongst other things, that no one is punished or can lawfully be made to suffer personally or materially, except for a distinct breach of the law, the proof of which is established by due process in the ordinary courts of the land. Added to this is the principle that no person is above the law and that every person is subject to the jurisdiction of the courts.[8]

 

Facing criminal prosecution is especially difficult for anyone whose ability to understand the proceedings, to communicate effectively with a lawyer, to give instructions and to make decisions, is impaired by mental disability, whether in the form of mental illness, intellectual challenges, brain injury or other related condition or disease. For this reason such individuals face barriers at all stages of their interaction with the legal system: from dealing with the police to retaining and instructing a lawyer, to dealing with the judicial system, and finally to their experiences in prisons and jails[9]. Law enforcement officers often have little training with which to distinguish those in psychiatric crisis from true violators of the law. They therefore find incarceration and imprisonment the least burdensome repository for persons acting bizarrely in public. The cycle of decomposition in jails and release onto the streets with no treatment, perpetuates a vicious revolving door in and out of the criminal justice system[10].

 

The doctrine of free will holds that unless individuals suffer an absence of reason because of mental deficiency or insanity, they are able on their own will to choose the proper course to pursue and to do what is right or wrong in accordance with their conscious choice.[11]  The neoclassical theory concedes that certain factors such as insanity might inhibit the exercise of free will[12]. The law’s focus on the criminal as a psychological entity is reinforced by the fundamental tenet that criminality cannot exist in the absence of criminal intent. However, the court is limited in its interest in the offender by the need to satisfy both statutory law and social conscience.[13] It therefore follows that a person is not to be held criminally liable unless he either intentionally or recklessly caused any events or consequences specified in the definition of the offence, and knew of or was reckless as to the existence of facts or circumstances which form part of the actus reus.[14]  Thus, in a criminal trial, consideration of the mental condition of the accused at the time when the alleged offence was committed and during the trial is of paramount importance.  If he was insane in the legal sense at the time he committed the offence, he is not criminally responsible for his act.

 

This chapter focus on the treatment of the mentally disabled offender in the criminal justice system. It highlights the rights of the mentally disabled in criminal justice, taking into consideration international instruments and domestic statutes on due process, the disabled, and in particular the mentally disabled. Special measures adopted solely to protect the rights and special circumstances of mentally disabled offender during trial and the available defence of insanity are discussed. The chapter also considers post verdict care of the mentally disabled offender and challenges of mental health delivery in Nigeria. It proffers some recommendations to improve mental health delivery and treatment of the mentally disabled offender, and canvasses for the adoption of a Mental Health Court which better guarantees the treatment and rehabilitation of the mentally disabled offender.

Definition of Disability/Mental Disability

Mentally disabled persons are generally grouped as disabled persons together with other persons living with other forms of disabilities as is apparent in the various definitions of disability and “disabled persons”.  Thus the Blacks Law Dictionary[15] defines a disabled person as a person who lacks legal capacity to act sui juris or one who is physically or mentally disabled from acting in his own behalf or from pursuing occupation. The World Health Organization sees the term “Disability” as an umbrella term, covering impairments, activity limitations, and participation restrictions. It defines impairment as a problem in body function or structure; an activity limitation as a difficulty encountered by an individual in executing a task or action; while a participation restriction is a problem experienced by an individual in involvement in life situations. Thus disability is a complex phenomenon, reflecting an interaction between features of a person’s body and features of the society in which he or she lives.[16]

According to the Americans with Disabilities Act (ADA)[17], the term “disability” with respect to an individual, means a physical or mental impairment that substantially limits one or more major life activities of such individual. It is any developmental or psychological disorder, such as retardation, organic brain syndrome, emotional illness, or specific learning disability[18]. The definition of disabled according to the UK Disability Discrimination Act 2005[19] is: Someone who has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.

Article 1 of the United Nations Declaration on the Rights of Persons with Disabilities[20] states that the term “disabled person” means any person unable to ensure by himself or herself, wholly or partly, the necessities of a normal individual and/or social life, as a result of deficiency, either congenital or not, in his or her physical or mental capabilities. These definitions of disability evidently encompass mental deficiencies.

Ogloff and Welsh, considers a Mentally Disabled Offender (MDO) as a person in the criminal justice system who requires clinical intervention to address his behavioural and mental health problem. MDOs include a range of persons, from those who are clearly certifiable under the Mental Health Act to those who have situational disturbances.[21] According to the American Blue Book on Disability Evaluation under Social Security, the evaluation of disability on the basis of mental disorders requires documentation of a medically determinable impairment(s), consideration of the degree of limitation such impairment(s) may impose on the individual’s ability to work, and consideration of whether these limitations have lasted or are expected to last for a continuous period of at least 12 months. The listings for mental disorders are arranged in nine diagnostic categories: Organic mental disorders; schizophrenic, paranoid and other psychotic disorders; affective disorders; mental retardation; anxiety-related disorders; somatoform disorders; personality disorders; substance addiction disorders; and autistic disorder and other pervasive developmental disorders.[22]

 

 

The Disabled and Non Disabled as Equal Subjects before the Law

The whole range of provisions in United Nations instruments that pertain to human rights, equality and non discrimination of individuals[23], are applicable to disabled persons; mentally disabled inclusive. The United Nations as early as 1945 in the United Nations Charter recognized the inherent dignity and worth and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world. The Universal Declaration of Human Rights[24] and the International Covenants on Human Rights[25], proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind.

 

The African Charter[26] provides that every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status[27]. Article 4 of the Charter guarantees the right of every individual to equality before the law and equal protection of the law. The rights and freedoms guaranteed by these laws include the due process rights of a mentally disabled offender.

 

The Nigerian criminal process is governed by the Constitution[28] and various statutes, particularly, the Criminal Procedure Act[29], the Criminal Procedure Code[30], the Criminal Code[31] and the Penal Code[32], Police Act[33] as well as other relevant International instruments to which Nigeria is a party[34]. By the principles of non-discrimination which is inseparable from the idea of equality, disabled persons being citizens of Nigeria are to be treated equally and are not be discriminated against.  Section 42 of the 1999 Constitution provides thus:

(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such person,

(a) be subjected either expressly by, or in the practical application of any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject;

(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.

In addition to the above provision, a citizen of Nigeria is not to be subjected to any disability or deprivation merely by reason of the circumstances of his birth.[35]  According to the UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care,[36]  a determination that a person has a mental illness is to be made in accordance with internationally accepted medical standards. Such determination of mental illness is never to be made on the basis of political, economic or social status, or membership in a cultural, racial or religious group, or for any other reason not directly relevant to mental health status. [37]

 

Due Process Rights of the Mentally Disabled Offender

Having established the right of the disabled to equality before the law and freedom from discrimination, we now turn to the due process rights of the disabled. Our domestic statutes and international/regional instruments make provisions for various procedural safeguards aimed at securing due process, including the right to fair hearing for the accused person under the criminal process. By virtue of the non discrimination and equality before the law provisions of our Constitution, due process rights apply equally to both the able bodied and the disabled citizens of Nigeria.

 

“Due process” is a statutory term in the United States of America[38], but it is not used in any statute in Nigeria yet its underlying values give essence to the Nigerian criminal process. Any person accused of any offence is entitled to some due process rights.  Due process means legal proceedings carried out fairly and in accord with established rules and principles.[39] Due process can be described as the idea of administering equal laws to the citizenry according to established rules, in a manner which is not violative of the fundamental principles of human rights as enshrined in the Constitution and other existing laws, both domestic and international, by the law enforcement agencies and the courts. It implies that the authorities, act in accordance with the law, devoid of arbitrariness, over zealousness, and without fear or favour, but with justice and equity as the ultimate goal.[40]

When applied to the criminal law, due process connotes adherence, inter alia, to the following fundamental principles:

1. reasonableness and certainty in the definition of criminal offences;
2. trial by an independent and impartial tribunal;

• observance of the rules of natural justice[41]

Article 13 (2) of the UN Convention on the Rights of Persons with Disabilities enjoins States Parties to help ensure effective access to justice for persons with disabilities by promote appropriate training for those working in the field of administration of justice, including police and prison staff.

Some of the specific provisions of international instruments on due process are discussed below.

 

UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment [42]

These principles apply for the protection of all persons under any form of detention or imprisonment. Protection is given to persons under any form of detention and imprisonment, within the territory of any given State, without distinction of any kind, such as race, colour, sex, language, religion or religious belief, political or other opinion, national, ethnic or social origin, property, birth or other status.[43] They also apply to mentally disabled persons under any form of detention. By Principle 1, all persons under any form of detention or imprisonment are to be treated in a humane manner and with respect for the inherent dignity of the human person

Principle 24 is very relevant to the mentally disabled offender. It provides that a proper medical examination is to be offered to a detained or imprisoned person as promptly as possible after his admission to the place of detention or imprisonment, and thereafter medical care and treatment is to be provided whenever necessary. This care and treatment are to be provided free of charge. Such a detained person also has a right to apply and obtain a second medical examination or opinion.[44]

UN Standard Minimum Rules for the Treatment of Prisoners[45]

The Rules seek to set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions.[46] Rule 82 specifically addresses the plight of insane and mentally abnormal prisoners. It provides that Persons who are found to be insane are not to be detained in prisons and arrangements are to be made to remove them to mental institutions as soon as possible.[47] Prisoners who suffer from other mental diseases or abnormalities should be observed and treated in specialized institutions under medical management.[48] During their stay in a prison, such prisoners shall be placed under the special supervision of a medical officer[49]. The medical or psychiatric service of the penal institutions are to provide for the psychiatric treatment of all other prisoners who are in need of such treatment[50]. It is desirable that steps should be taken, by arrangement with the appropriate agencies, to ensure if necessary the continuation of psychiatric treatment after release and the provision of social-psychiatric after-care. [51]

The UN Declaration on the Rights of Disabled persons[52]

The UN Declaration on the Rights of Disabled persons in conformity with preceding human rights instruments, affirmed that the disabled persons possess the same civil and political rights guaranteed by earlier instruments, which were applicable to every one[53]. The UN General Assembly also in December 1976, called upon all member states to take account of the rights and principles laid down in the Declaration in establishing their policies, plans and programmes. As a result of this, many nations have tailored their policies to reflect recognition of the rights of persons with disability, through specific legislation.[54]

 

Convention on the Rights of Persons with Disabilities[55]

The Convention follows decades of work by the United Nations to change attitudes and approaches to persons with disabilities.  The purpose of Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. Persons with disabilities under the Convention include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.[56]

The Convention changes the notion of viewing persons with disabilities as objects of charity, medical treatment and social protection; to viewing persons with disabilities as subjects with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society[57].

Article 13 (1) of the Convention mandates States Parties[58] to ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.

Besides the instruments mentioned above, which apply generally to everyone and to disabled persons, the United Nations Declaration on the Rights of Mentally Retarded Persons[59] and the United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care[60]apply specifically to mentally disabled persons. Their provisions are discussed below.

The United Nations Declaration on the Rights of Mentally Retarded Persons[61]

This Declaration proclaimed in article 1 that the mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings. The mentally retarded person has a right to protection from exploitation, abuse and degrading treatment. If prosecuted for any offence, he has a right to due process of law with full recognition being given to his degree of mental responsibility[62].  The Declaration recognized situations where the severity of the mental handicap may render the suspect unable to exercise all his rights in a meaningful way or it is necessary to restrict or deny some or all of these rights. The procedure for such restriction or denial of rights must contain proper legal safeguards against every form of abuse and must be based on an evaluation of the social capability of the mentally retarded person by qualified experts, subject to periodic review and to the right of appeal to higher authorities.[63]

Amongst other rights granted by the Declaration is the right of the mentally retarded person to proper medical care and physical therapy and also to such education, training, rehabilitation and guidance as will enable him to develop his ability and maximum potential.[64]

United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care[65]

These principles lay down provisions to promote the rights of mentally disabled persons in health care. There are specific provisions on informed consent, confidentiality, standard of care and treatment and the rights available to inmates of mental disability institutions. Principle 5 provides that every person with a mental illness has the right to exercise all civil, political, economic, social and cultural rights as recognized in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and in other relevant instruments, such as the Declaration on the Rights of Disabled Persons and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

Principle 20 deals with criminal offenders suffering from mental illness. It makes it clear that the Principle applies to persons serving sentences of imprisonment for criminal offences, or who are otherwise detained in the course of criminal proceedings or investigations against them, and who are determined to have a mental illness or who it is believed may have such an illness.  All such persons are to receive the best available mental health care[66]. Domestic law may authorize a court or other competent authority, acting on the basis of competent and independent medical advice, to order that such persons be admitted to a mental health facility.[67]

The 1999 Constitution[68]

Chapter IV of the Constitution is captioned “Fundamental Rights”. This Chapter contains an extensive list of human rights, including due process rights, which should be accorded to every citizen of Nigeria. The due process rights are particularly covered under sections 33[69], 34,[70] 35 and 36 of the Constitution. Prominent among these rights is the right to fair hearing under the criminal process. The rights under the fair hearing provisions are covered by section 36 (4)-(12). They include: the right to be tried in public within a reasonable time[71]; right to be presumed innocent until proved guilty;[72] right to be informed promptly, in the language which he understands, of the nature of the offence;[73] right to be given adequate time and facilities for the preparation of his defence;[74] right to defend himself in person or by a legal practitioner of his own choice;[75] right to examine witnesses for the prosecution and have witnesses testify on his behalf;[76] right to an interpreter;[77] right to obtain copies of judgment;[78] right not to be held guilty of a retrospectively created offence;[79] right to protection against double jeopardy (that is, right to plead autrefois acquit or autrefois convict[80]) right not to be tried for the same offence after pardon;[81] right not to be compelled to give evidence at trial[82]; and right not to be convicted of an unwritten offence.[83]

 

Fair hearing or fair trial is a trial conducted in accordance with the constitutional provisions on fair hearing, taking into consideration rules of natural justice and due process and not in violation of any known principle of human rights[84].  A fair hearing, as envisaged within the context of police duties, must be in accordance with constitutionally laid down rules of procedure and should guarantee the due process as it affects police handling of suspects. Thus, any hearing that takes place while a suspect has not been informed of the reason for his arrest; is being denied access to his counsel or a person of his choice; is compelled to speak against his wish, particularly through torture or threat of torture, or is promised an advantage if he confessed or a disadvantage if he failed to confess, cannot be said to be fair. Torture here includes physical manhandling, inflicting pain on the body or mind in any manner, keeping a suspect in small overpopulated and unhygienic cell without basic conveniences, denial of food and water, etc. For such a hearing to be fair, the police must inform the suspect promptly of the reasons for his arrest and detention. He must be allowed to consult with his lawyer or a person of his choice. On no account should he be forced to make any statement against his wish. While he remained in police custody, which period should not be more than 48 hours, no inhuman or degrading treatment should be meted out to him[85].

All the pre-trial rights mentioned above are equally applicable to a mentally disabled person. However, mentally disabled individuals may be less aware of their legal rights than the average mentally sound persons. This calls for a higher degree of care by the arresting and detaining authorities and the counsel. A mentally disabled offender may not understand that he is under arrest or be able to communicate coherently. Arresting and detaining officials are prohibited from taking undue advantage of his situation for the purpose of compelling him to confess, to incriminate himself otherwise or to testify against any other person.[86] When it comes to the actual trial of mentally disabled person, a different procedure is adopted. Such measures, which are discussed later in this chapter, are applied under the law and designed solely to protect the rights and special circumstances of the mentally disabled persons and are not to be considered discriminatory.

The 1993 Nigerians with Disability Decree contains rich provisions for the protection of human rights of people with disabilities. By section 2 of the Decree, disabled persons are to be guaranteed treatment as equals to other Nigerians for all purposes in the Federal Republic of Nigeria. The section entrusts the organs of government and all authorities and persons the duty and responsibility of adopting and promoting policies that will ensure full integration of the disabled into the mainstream of the society. The Decree while granting some special rights privileges to disabled persons[87], failed to make provisions on disabled persons accused of crime. The only semblance of due process right in the Decree is section 14, which states that Government is to provide public and private funding support for legal clinics for the disabled.

 

Prosecuting Mentally Disordered Offenders (MDOs)

In criminal prosecutions, the prosecutor’s task is to demonstrate to the court beyond reasonable doubt:

1. That the accused brought about the prohibited act, omission or state of affairs. This is called the actus reus;
2. That the accused did the act with the sate of mind prescribed by the definition of the crime. This is called the mens rea; and
3. That the accused is not entitled to the benefit of any defence which may have been argued on his or her behalf.[88]

Traditionally, this is encapsulated in the Latin maxim, actus non facit reum, nisi mens sit rea which means that an act does not make a person guilty of committing an offence unless the mind is legally blameworthy.[89]

 

For centuries, the common law has recognized the special position of the mentally ill. Blackstone wrote that: “A total idiocity, or absolute insanity, excuses from the guilt, and of course from the punishment, of any criminal action committed under such deprivation of the senses”[90]

 

When an individual’s capacity to make choices and to manage the manipulation of means to achieve ends with reference to the prohibitions of the penal code is reduced to a certain level, he is clearly in need of medical treatment rather than punishment. His actions in contravening the criminal law should be regarded as providing the occasion for ordering medical treatment, rather than the basis of a conviction[91]. He should be regarded as lacking criminal responsibility, and exempt from punishment.  Insanity is an absolute alienation of reason. It can deprive a person of the knowledge of the true aspect and position of things. Insanity hinders a person from distinguishing friend or foe and gives him up to the impulse of his own distempered fancy.[92]

The Defence of Insanity

The word “sane” derives from the Latin adjective sanus meaning “healthy”. The phrase “mens sana in corpore sano” is often translated to mean a “healthy mind in a healthy body”. From this perspective, insanity can be considered as poor health of the mind, not necessarily of the brain as an organ (although that can affect mental health), but rather refers to defective function of mental processes such as reasoning. Mental disability also referred to as “insanity”, “craziness” or “madness” is a spectrum of behaviors characterized by certain abnormal mental or behavioral patterns. Insanity may manifest as violations of societal norms, including one becoming a danger to himself and others.[93]

 

The defence of insanity reflects a compromise on the part of society and the law. On the one hand, society believes that criminals should be punished for their crimes; on the other hand, society believes that people who are ill should receive treatment for their illness. The insanity defense is the compromise: basically, it reflects society’s belief that the law should not punish defendants who are mentally incapable of controlling their conduct[94].

 

Under section 28 of the Criminal Code[95] A person is not criminally responsible for an act or omission if at the time of doing the act or omission, he is in such a state of mental disease or natural mental infirmity[96] as to deprive him of his 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[97] The second arm of section 28 addresses situations of insane delusion. The section states that a person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the first arm of the 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.

The effect of this section is that an accused person affected by delusions can only be relieved of criminal responsibility:

1. If at the time of doing the act or making the omission he is in such a state of mental disease or natural infirmity as to deprive him of such capacity to understand what he was doing and of capacity to know that he ought not to do the act or make the omission.
2. Where he has a valid and absolute defence in law, i.e. under the statute or under the Constitution.[98]

It is settled law that it is the state of mental health of an appellant at the time of committing the offence that is relevant and vital in determining whether the defence will be available or not[99].  The case of Loke v. State is a locus classicus on the defence of insanity.[100] In that case, the appellant without any motive, cut off the head of a male adult and took the head first to his house and then to the stream. There was evidence that before, during and after the killing, the appellant was insane. A year before the incident, he was taken from Lagos to his village because of insane behaviour. One month before the killing, the appellant was in chains because he was mad. His evidence in court was interlaced with insane utterances and behaviour. In spite of all these, the trial judge held that there was no evidence that on the day the appellant killed the deceased, he was suffering from any mental illness contemplated under section 8 of the Criminal Code. He convicted him of murder. The Court of Appeal agreed with the trial court, but the Supreme Court in disagreeing, allowed the appeal; quashed the judgement and sentence of the High Court; set aside the judgement of the Court of Appeal and entered a judgement of not guilty by reason of insanity.[101]  The Court held that the trial judge failed to direct himself correctly on the clear evidence of insanity of the appellant, and that the Court of Appeal also fell into the same error.

 

It is noteworthy that the Lagos State Draft Criminal Law Bill, 2009,[102] in section 27 dealing on insanity, omitted the second arm of former section 28 dealing with insane delusion. The effect of this omission is that the defence of insane delusion will no more be part of the law of Lagos State if the law is passed and this has the effect of changing the entire face of the defence of insanity.

 

In determining the defence of insanity, the trial court is enjoined to take into consideration any admissible medical evidence and the whole of the facts and the surrounding circumstances of the case which will include:

1. the nature of the act/offence;
2. the conduct of the accused before, at the time of the act as well as thereafter; and
3. any history of mental abnormality affecting the accused.[103]

 

Section 28 (1) of the  Lagos State Criminal Law Bill, 2011, recognized the peculiar biological condition of some women who exhibit some traits of insanity shortly after childbirth as a result of hormonal imbalance. The implication of the new section is that it offers such a woman a full defence where she is alleged to have caused the death of her baby who is under the age of 12 months. We suggest that if such a woman can be excused for causing the death of her child under 12 months, she should equally be excused from other offences she may commit while in that condition. This is because such mind imbalance is not limited to harm to the new born baby. A woman so affected may also harm her husband, her other children or even set her home or other peoples property ablaze. The types and extent of crime she may commit in that state is limitless. It is important to re-examine this section, which is a very significant section and perhaps tighten the provision by stating the role of a medical expert in such a case and so on.[104]

 

Failure to Plead as a Result of Visitation of God

Insanity can operate as a bar to trial. If a person is insane at the time of his trial he cannot be tried, whether or not he was insane at the time of the alleged crime. Insanity in this instance is based on accused’s unfitness to plead.[105] This is euphemistically referred to as “visitation of God”. In such a case, the expression “failure to plead, is to be preferred to the usual expression “refusal to plead”. This is because refusal to plead denotes a deliberate withholder of plea, which is not the case where the accused fails to plead as a result of visitation of God[106].  The procedure to be adopted by the court where the accused fails to plead as a result of visitation of God is stated in section 220 of the Criminal Procedure Act (CPA). The section provides as follows;

If the accused person when called upon to plead shall stand mute of malice or will not or cannot answer directly when called upon to plead to the charge the court shall enter or cause to be entered a plea of not guilty on behalf of such person and the plea so entered shall have the same force and effect as if such person had actually pleaded the same, or else the court shall thereupon proceed to try whether the accused person be of sound or unsounded mind in accordance with the provisions of Part 25 of this Act and if he shall be found to be of sound mind shall proceed with his trial.

 

Sections 223 of the CPA and section 320 of the CPC contain similar provision on the procedure when accused is suspected to be of unsound mind Where the trial judge or magistrate holding a trial suspects that the accused is of unsound mind and cannot make his defence, the first thing he is supposed to do is to investigate the fact of the unsoundness of mind[107]. After the investigation, the court may receive as evidence a certificate in writing signed by a medical officer to the effect that such accused person is in his opinion of unsound mind and incapable of making his defence or is a proper person to be detained for observation in an asylum[108], or the court may, if it sees fit, take oral evidence from a medical officer[109] on the state of mind of such accused person[110]. If the Judge, or magistrate, is not satisfied that such person is capable of making his defence, he postpones the trial and also remands such person for a period not exceeding one month to be detained for observation in any asylum.[111] The medical officer is to keep such person under observation during the period of his remand. The medical officer is to certify within the one month period to the court his opinion as to the state of mind of such person. Where he is unable to form any definite conclusions he is to state so to the court and ask for a further remand, which may extend to a period of two months. [112]

 

A law officer may at any stage of the proceedings before the trial, apply to the court to order that the accused person be sent to an asylum for observation. Where such an application is approved, a medical officer may detain such person for a period not exceeding one month as may be necessary to enable him to form an opinion as to the state of mind of such person, and shall forward a copy of his opinion, in writing, to the court.[113]

 

Where the medical officer certifies that the accused person is of sound mind and capable of making his defence, the court is to proceed with the trial unless it is satisfied by the defence that the accused person is of unsound mind.[114] If on the other hand, the medical officer certifies that such person is of unsound mind and incapable of making his defence, the judge or magistrate, if satisfied of the fact, is to find accordingly, and thereupon the trial is to be postponed. But if the judge or magistrate is satisfied that the accused person is of sound mind and capable of making his defence the court is to proceed with the trial.[115]  If the accused person is certified to be of unsound mind and incapable of making his defence, it shall not be necessary for him to be present in court during proceedings under this section.[116]

Court Bail for a Person of Unsound Mind

Section 225 of the CPA and section 322 of the CPC provide that the court may in exercise of its discretion, release an accused person found to be of unsound mind and incapable of making his defence, where the offence charged is bailable on sufficient security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any other person, and for his appearance when required before the court or such officer as the court appoints in that behalf.  Where the offence is a capital offence, and therefore only bailable by a High Court Judge and not a Magistrate, or if the offence is bailable by a Magistrate but the Magistrate refuses to grant bail such Magistrate is to inform the accused of his right to apply to a Judge for bail and report such fact to a Judge.[117]

 

If the offence charged is not bailable by the High Court or if a Judge has refused bail under paragraph (a) of subsection (1) of section 225 CPA or after an application made under paragraph (b) thereof or if sufficient security is not given or if no application is made for bail the Judge is to report the case to the Governor who after consideration of the report may, in his discretion, order the accused to be confined in a lunatic asylum or other suitable place of safe custody and the Judge is to give effect to such order. Pending the order of the Governor the accused, may be committed to prison or other suitable place of custody for safe custody.

 

Acquittal on Ground of Insanity

On every occasion where a person is acquitted by virtue of section 28 or 29 (2) (b) of the Criminal Code (intoxication) the verdict of the court is to state specifically whether he committed the act alleged or not.[118] Even if the accused is found unfit to plead, the court must determine whether or not he has actually committed the actus reus of the offence charged.[119] Where the finding states that the accused person committed the act alleged, if such act would but for incapacity found have constituted an offence, the court is to order such person to be kept in safe custody in such place and manner as the court thinks fit and will report the case for the order of the Governor, who may order such person to be confined in a lunatic asylum, prison or other suitable place of safe custody during the pleasure of the Governor.[120]

Onus and Standard of Proof of Insanity

By virtue of section 27 of the Criminal Code[121], everyone is presumed to be of sound mind and to have been of sound mind at the time he committed the offence with which he is charged.[122] Having regard to this section, it follows that the prosecution has no duty to prove that the accused person was sane or insane[123]. The onus lies on the defence to overcome this presumption; prove the contrary and establish that the accused person is of unsound mind or is suffering from insane delusion[124]. The burden of proof is discharged if the accused leads evidence to show that it is most probable that at the time of the commission of the offence with which he is charged, he was insane within the meaning of section 28 of the Criminal Code.[125] The onus of proof of insanity on the accused person is not as heavy as that which rests on the prosecution when proving a case against an accused person. The onus on him is on balance of probabilities.[126]

 

Establishing a Defence of Insanity

The first celebrated legal test for insanity came in 1843, in the McNaughton case. Daniel McNaughton shot and killed the secretary of the British Prime Minister, believing that the Prime Minister was conspiring against him. The court acquitted McNaughton “by reason of insanity,” and he was placed in a mental institution for the rest of his life. However, the case caused a public uproar, and Queen Victoria ordered the court to develop a stricter test for insanity. The “McNaughton rule” was a standard to be applied by the jury, after hearing medical testimony from prosecution and defense experts. The rule created a presumption of sanity, unless the defense proved “at the time of committing the act, the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong.” [127]

 

To establish a defence of insanity, the following must be proved[128]:

That at the time of doing the act or making the omission the accused person was in a state of mental disease or natural mental infirmity as to deprive him of capacity to:

1. understand what he was doing; or
2. to control his action; or
3. to know that he ought not to do the act or make the omission.

 

In Ejinima v. State[129] the Supreme Court set down the following as ways amongst others for establishing insanity.

1. Evidence as to the past history of the accused.
2. Evidence as to his conduct immediately preceding the killing of the deceased.
3. Evidence from Prison Warders who had custody of the accused and looked after him during his trial.
4. Evidence of medical officers and/or psychiatrists who examined the accused.
5. Evidence of relatives about the general behaviour of the accused and the reputation he enjoyed for sanity or insanity in the neighbourhood.
6. Evidence showing that insanity appears in the family history of the accused; and
7. Such other facts which will help the trial judge come to the conclusion that the burden of proof of insanity placed by the Criminal Code on the defence has been amply discharged.[130]

 

The courts have established that personal evidence of his insanity tendered by the accused is suspect and is not usually taken seriously for establishing his insanity.[131]

 

The Court’s Verdict

Where an accused person pleads not guilty by reason of insanity, the court has to consider all the evidence to determine whether the accused committed the offence and whether he was insane at the time of committing the offence. If he is found not to have committed the offence, he is acquitted just like a sane person. Likewise, if he is found to have committed the offence and to be sane at the time of committing the offence, he must also be convicted as charged and sentenced accordingly.[132]  If on the other hand the accused is found to have committed the offence, but to be insane at the time of committing it, the court will enter a verdict of “not guilty by reason of insanity”. The court is also to order that the accused person be kept in safe custody in such place and manner as the court thinks fit and shall report the case for the order of the Governor.[133] The Governor may order such person to be confined in a lunatic asylum, prison or other suitable place of safe custody during the pleasure of the Governor.[134]

The Purpose of the detention is to prevent an insane convict from committing the same or other offences in his insane state.[135]

Post Verdict Care of Mentally Disabled

After the court has entered a verdict of not guilty by reason of insanity, the offender is kept in prison custody despite the fact that there are no specialist facilities for care of mentally disabled offenders in our prisons.  Although a separate wing of the prison is usually set aside for this purpose in order to ensure that mentally ill prisoners do not mix with normal ones.[136]   T. Asuni observed that the practice in some parts of Nigeria where there are no psychiatric hospitals is to keep the severely mentally ill in prison, whether or not they are criminal.[137]

 

Studies in Nigeria have found prevalence rates of mental disability to be around 20-28% for diagnosable psychiatric conditions in the general population. This means that there are at least 25 million people who would benefit from mental health services in Nigeria.[138] This high prevalence rate of mental disability naturally translates to the significant number of mentally ill prisoners.  A National Prison Audit carried out by the National Human Rights Commission[139] revealed that lunatics were found in some prisons. The report went further to reveal that the highest number of lunatics were found in the South East Zone with Enugu having as high as 87, Aba 45, Abakiliki 15 and Awka 5. Other zones had Warri 14, Kano12, Illorin and Jos 10 each, kirikiri maximum 9 and Ilesha 6. The report attributed the high number of lunatics in the South East Zone to the detention of persons who have committed no criminal offence but detained on the order of Magistrates and known as “Civil Lunatics”[140]. None of the prisons visited had facilities to take care of psychiatric inmates[141] yet lunatics are detained there.

 

Bar Chart representation of the Lunatics in some prisons in Nigeria

 

Challenges to Mental Health Delivery

1. High Rate of Inaccessibility to Mental Health Care- The WHO in its 2011 World Report on Disability, noted that many people with mental health conditions do not receive mental health care despite the fact that effective interventions exist, including medication.[142] The Report further disclosed that a large multi-country WHO survey showed that between 35% and 50% of people with serious mental disorders in developed countries, and between 76% and 85% in developing countries, received no treatment in the year before the study.[143] .

 

The major reason for the high rate of inaccessibility of mental health care in Nigeria is the dearth mental facilities and psychiatrists in the country. Though the recognition and treatment of mental disorders in Nigeria through unorthodox means pre-date written records, western models of psychiatric service delivery were not introduced until the early 20th Century. The first asylum was established in the southern city of Calabar in 1904, and three years later, in 1907, the Yaba Asylum was established in Lagos, also in the south. These asylums were run by medical officers, as there were no psychiatrists, and provided essentially emergency and custodial interventions.[144]   In 1944, a Native Administration Prison in Lantoro in the outskirts of Abeokuta was converted to an asylum. [145] In 1954, the Aro Mental Hospital was established in Abeokuta by the British colonial government in response to the need for improved mental health care.[146] The hospital was initially designed to accommodate 200 patients with an expansion capacity for 500 patients maximum.[147] In 1998, five State mental facilities were taken over by the Federal Ministry of Health and redesignated “Federal Psychiatric Hospitals” in response to the urgent need to provide specialized mental health services and training nationwide.

Presently in Nigeria, the bulk of psychiatric service is provided by the eight regional psychiatric hospitals and the departments of psychiatry in 12 medical schools. A number of General Hospitals also provide psychiatric services[148]. Despite these facilities, mental health care remains inadequate, with the ratio of psychiatric beds being about 0.4 to 10,000 persons, while that for both psychologists and social workers is 0.02 to 100,000 persons.[149]

There are around 130 working psychiatrists in the whole of Nigeria. Almost all of these psychiatrists are based in one of the country’s large specialist hospitals in major cities.[150]
There is about 1 psychiatric nurse for 25,000 persons in Nigeria. Many of these nurses are not working in mental health due to lack of facilities.[151] The lack of staff is particularly acute in the Northern part of the country. It has been well noted that there is both north-south and rural-urban skew in availability and accessibility of psychiatric care resources.[152] Filling this void, the practice and acceptance of faith healing and traditional and complementary medicine are far-reaching in many communities. Recent studies found that only around 10% of those with severe mental illnesses like schizophrenia received treatment mainly from the Federal and University hospitals, while the majority of the population in the rural areas cannot access the care they offer. [153]

2. Lack of a functional Mental Health Legislation– A major challenge to mental health is the lack of any functional legislation on mental health in Nigeria. Presently in Nigeria, the Lunacy Act, which is in the words of the former Minster of State for Health Dr. Mrs. Amina Ndalolo, “one of the most outmoded and irrelevant mental Health Laws, the Lunacy Act 1914, which is a colonial legacy that served us during the colonial era”[154].

The Association of Psychiatrists of Nigeria (APN) has been in the forefront in drafting a Mental Health Bill.  A 2003 Bill for a Mental Health Act passed a public hearing and was adopted by the Senate, but was not able to pass the House of Representatives and be adopted into law. With support from the WHO, the Federal Ministry of Health has brought together a team of experts to make recommendations for laws that will safeguard the interests of people with mental health problems in the country, and a policy that will allow for services to reach those whose needs are currently not met.[155] According to the President of the Association of Psychiatrists of Nigeria, Prof. Oye Gureje, the Association is working with the Ministry of Health to have a better Draft Bill that will protect the rights of people with mental illness. The Bill that will be submitted as an Executive Bill, which will hopefully get better attention at the National Assembly.[156]  The Bill will protect the rights of the mentally disabled and ensure that some discriminatory acts and maltreatments meted out to the mentally disabled like – tying them down, beating them etc are not treated with levity.

3. Poor Funding and Remuneration– Poor funding has also hindered the mental health sector. In Nigeria less than 3% of Gross Domestic Product (GDP) is spent on health, and of this, less than 1% is allocated to mental health. The figure recommended by the WHO for mental health is 5%, and in many countries it is nearer 15%.[157] The majority of the expense of care is paid by patients and families. This is usually difficult as mental illness can last for many years. It is reported that there is 75% increase in the number of consumers having difficulty paying out of pocket healthcare cost. [158]

Poor funding has led to low remuneration of psychiatric nursing personnel in Nigeria. It has been established that low motivation has a negative impact on performance and health system as a whole. Incentives serve as a push factor for migration of health workers, mental health workers inclusive, both from rural areas to the cities and out of the country[159]. In United Kingdom, Psychiatric Nurses earned up to N500.000 (equivalent of USD3, 333) per month. Whereas in Nigeria the highest paid Psychiatric Nurse earns not more than N200, 000. This disparity in income has led to massive brain drain in the mental health sector in Nigeria as most Nigerian Psychiatric doctors and nurses find better rewards working abroad than in Nigeria.[160]

The Mental Health Court

The concept of a Mental Health Court has blossomed in some jurisdictions like Canada and the United States of America. In the US, the concept of a mental Health Court was introduced in Florida in 1997 and since then, such courts have sprang up in other American states[161]. These courts are modelled after Drug Courts. They practice therapeutic jurisprudence, often alerting the traditional dynamics of the courtroom. Prosecutors and defence lawyers may come together to discuss their common goals for each defendant.[162]

Mental Courts were developed to cure the major problem of recidivism amongst mentally disabled offenders. Denckla and Berman observed that while incarceration may be the right outcome for some mentally ill offenders who pose a serious threat to individual victims or the public welfare, incarceration makes little sense for others, particularly those without violent histories.[163] They captured the obvious drawbacks in the following terms:

It’s expensive both on the front end and the back end. State and local governments incur significant costs when they incarcerate people. Just as significantly, prisons and jails are not designed to be therapeutic environments. All too often, the condition of mentally ill individuals seriously deteriorates in custody. They are then released to the streets with little or no discharge planning. No one links them to needed treatment, housing and other services. And no one checks to make sure they take advantage of these services. Unsurprisingly, many mentally ill defendants find themselves back before the courts in short order, repeating the same process[164].

 

There are several different models of Mental Health Court, but all of them have an interdisciplinary team of mental health and other social service people involved in the adjudication. They combine their skills and resources to present guidance, information, case management, and treatment monitoring. They formally pronounce judgment and monitor the treatment.[165] The objectives of the Mental Court are summarized thus[166]:

• To create a courtroom with a high degree of sensitivity to the specialized needs of this
• To expedite the mentally ill defendant through the criminal justice system without
• To assure that the mentally disabled defendant does not languish in jail because oftheir illness and if in need of emergency psychiatric treatment, that the individualis able to obtain it without compromise of individual substantive legal rights.
• To balance the defendant’s individual rights, treatment considerations, and public safety.
• To apply a therapeutic approach to the processing of offenders to better assist them and family in the recovery process and in assuming personal responsibility fortheir comprehensive health needs and to help reduce the stigma of mental illness.
• To better ensure and oversee the coordination, effectiveness, and accountability of both the delivery of community based treatment and services and compliance withtreatment by the individual defendant.
• To reduce the contact of the mentally ill with the criminal justice system creating abridge between the community and jail system.

 

Recommendations

1. The concept of a Mental Health Court will be a laudable initiative if established in Nigeria. This will be a better system than the current practice where mental offenders end up in prison without mental care facilities and treatment. Understandably, such neglect will ultimately lead to a cycle of recidivism amongst mental offenders who would return back to crime, perhaps, more violent upon their release into the society without treatment.
2. The paucity of mental health facilities and professionals should be urgently addressed. Government through the Federal and State Ministries of Health should build more Psychiatric hospitals especially in the rural arrears to make mental health accessible to all. To complement the facilities, government should fund the health sector adequately, while the Ministries of Health should increase their budgets for mental health. This should be followed up with adequate remuneration to motivate the mental health professionals and discourage brain drain. All these would help reduce the number of mentally disabled walking our streets and of course the number of mentally disabled offenders will also reduce.
3. Government should reduce the stressors in the Nigeria business environment by cushioning the hardship faced by the low income earners; by offering reliefs in the form of social benefits or provide social services such as power, transportation, water supply, food, etc. This will reduce the number of Nigerians with stress precipitated mental disorders.[167]
4. The promoters of the proposed Bill on Mental Health and the National Assembly should expedite action on the passage of the Bill. This will ensure government commitment in terms of funding for institutional development and regulation of the sub sector.

 

Conclusion

The rise in the number of mentally disabled persons in the society has impinged on our courts and prisons. They have continued to have increasing number of mentally disabled individuals who have extensive histories of involvement with the justice system and who have not been successfully engaged by community mental health treatment facilities.  Our prisons, which have been struggling for decades, to deal with chronic overcrowding, have been particularly challenged by the need to care for the large numbers of mentally ill persons committed in their charge.

 

This chapter has made some significant recommendations, which if adhered to, will help solve the problems of the mentally disabled in the criminal justice. Particularly important is the adoption of the Mental Health Court system as practiced in some countries. This will amongst other advantages monitor the treatment of mental offenders. However, besides the financial implications involved in setting up such courts, it will require the employment and further training of qualified individuals drawn from the relevant professions like law, psychiatry, psychology and sociology to carry out the responsibilities involved.

 

FOOTNOTES:

[1] Rush G. E, Dictionary of Criminal Justice, (Boston: Holbrook Press Inc., 6^th ed. 1997), p. 36.

[2] Owoade M.A., “Dispensation of Justice in Nigeria: Problems and Prospects” in Kanam S. M. & Madaki

1. M., (Eds.), Contemporary Issues in Nigerian Law. Legal Essays in Honour of Hon. Justice Umaru

   Faruk Abdullahi, CON. (Zaria: Private Law Dept. Ahmadu Bello University, 2006), p. 215.

[3] Atsenuwa A. V.  “Criminal Justice Reforms in Areas of Bail, Remand and Sentencing, in Otteh J. C. (Ed.),

Reforming for Justice, (Lagos: Access to Justice, 2007), p. 78.

[4] Ani C.C. “Corruption in Criminal Justice Administration: The Role of the Legal Profession, Nigerian Bar

   Journal, vol. 7. No. 1, August 2011, PP Corruption in Criminal Justice Administration: The Role of the Legal

Profession, Nigerian Bar Journal, vol. 7. No. 1, August 2011, p. 109.

[5] See the Preamble to the International Covenant Civil on and Political Rights, 1966.

[6] Section 17 (1), Constitution of the Federal Republic of Nigeria Promulgation Act, 1999, Cap. C 23 Laws of the   

  Federation of Nigeria, 2004.

[7] Ibid., section 17 (2) (a). Article 3 of the African Charter provides for equality before the law and equal

protection of the law.

[8] Umaru F. A., “Constraints in the Administration of Justice: The Nigerian Experience” in Kanam S. M. &

Madaki A. M., (Eds.), Contemporary Issues in Nigerian Law, op. cit, note 2, p. 134.

[9] Mentally Disabled Persons in the Criminal Justice. Available at:

http://www.thefreelibrary.com/Mentally+disabled+persons+in+the+criminal+justice+system-a0160104931.

Visited on 2/6/2011.

[10] “Broward’s Mental Health Court: An Innovative Approach to the Mentally Disabled in the Criminal Justice System” Available at: http://www.google.com.ng/#sclient=psy&hl=en&source=hp&q=The+bill+will+protect+the+rights+of+people+with+mental+illness.Visited on 4/7/2011.

[11] Bromberg W., Crime and the Mind, (Connecticut: Greenwood Press, 1948) p. 175

[12] Bohm R. M. and Haley K. N., Introduction to Criminal Justice, (Boston: Mc Graw Hill, 4^th ed. 2005) p. 69

[13]Bromberg W., op. cit. note 11.

[14] Ashworth A. J., “The Elasticity of Mens Rea” in Tapper C. H. (Ed.), Crime, Proof & Punishment, (London:

Butterworths, 1981), p. 50.

[15] Black H. C., Black’s Law Dictionary, (Minnesota: West Publishing Co., 6th Ed., 1990).

[16] http://en.wikipedia.org/wiki/Disabilit. Visited on 5/7/2011

[17] Section 12102  of  the Americans with Disabilities Act (ADA )1990 as amended in 2008. Available at: http://www.ada.gov/pubs/adastatute08.htm. Visited on 5/7/2011.

[18] Rubin P. N. and McCampbell S. W. “The Americans with Disabilities Act and Criminal Justice: Mental Disabilities and Corrections”. NIJ Research in Action, September 1995.

[19] The Act has been in force since 1 May, 2005. See

http://www.direct.gov.uk/en/DisabledPeople/RightsAndObligations/DisabilityRights/DG_4001069

[20] General Assembly resolution 46/119 of 17 December 1991.

[21] Ogloff, J. R., & Welsh, A., Surrey Pre-trial Mental Health Program: An Analysis of Admission and Screening 

      Data 1991-2000. (Mental Health, Law, and Policy Institute: Simon Fraser University, 2001), p. 1

[22] Disability Evaluation under Social Security, Blue Book- September 2008. Available at: http://www.ssa.gov/disability/professionals/bluebook/12.00-MentalDisorders-Adult.htm. Visited on 2/6/2011

[23] See note 34, below.

[24]Adopted by the General Assembly of the United Nations on December 10, 1948

[25] Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI)
of 16 December 1966

[26] African Charter on Human and Peoples’ Rights (Ratification and Enforcement Act), Cap. A9, Laws of the

      Federation of Nigeria, 2004.

[27] Article 2

[28] Constitution of the Federal Republic of Nigeria Promulgation Act, 1999, Cap. C 23 Laws of the Federation of   

     Nigeria, 2004.

[29] Cap. C. 41 Laws o f the Federation of Nigeria, 2004.

               [30] This was initially enacted as Cap. 30 Laws of Northern Nigeria, 1963. The various States that made up

the former Northern Region of Nigeria have since enacted Criminal Procedure Codes for their various States

[31] Cap. C 38 Laws of the Federation of Nigeria, 2004. 

                             [32] Cap. 89 Laws of Northern Nigeria, 1963. The various States that made up the former Northern Region, have

                                                      alsoenacted Penal Codes for their various States.

[33] Cap. P. 19 Laws of the Federation of Nigeria, 2004. 

[34] The Universal Declaration of Human Rights, 1948; the International Covenant Civil on and Political

 Rights, 1966;United Nations Declaration on the Protection of All Persons from Torture and other Cruel

 and Degrading Treatment (the Convention Against Torture); United Nations Body of Principles for the

 Protection of All Persons Under Any Form of Detention or Imprisonment of 1988; Basic Convention   

Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984; United Nations Code of Conduct for Law Enforcement Officials, 1979; United Nations Body of Principles on the Independence of the Judiciary, 1985; United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules); United Nations Standard Minimum Rules for the Treatment of Prisoners, 1977; Basic Principles on the Role of Lawyers, 1990; the Principle on the Prevention of Arbitrary Arrest and Detention and Guidelines and the Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben Island Guidelines), African Commission on Human and Peoples’ Rights, 32nd Session, 17 – 23 October, 2002

[35] Section 42 (2) of the 1999 Constitution. However, mentally disabled individuals are excluded from participation in certain instances, understandably by reason of their peculiar condition. The 1999 Constitution disqualifies any mentally disabled person who has been adjudged to be a lunatic or is otherwise declared to be of unsound mind under any Law in force in any part of Nigeria from seeking election into the Senate or the House of Representatives (section 66); President, section 137; and House of Assembly, section 107. The Electoral Act 2010 makes similar provision in section 107 (Area Council Election). See also Section 3 of the Electoral Act 2008 (Presidential and National Assembly elections).

    [36] G.A Res. A/RES/46/119 of 17 December 1991. This Principle applies to persons serving sentences of     imprisonment for criminal offences, or who are otherwise detained in the course of criminal proceedings or     investigations against them, and who are determined to have a mental illness or who it is believed may have such     illness.

[37] Principle 4, ibid.

[38] See the 5^th, 6^th and 7^th Amendments to the United States of America Constitution.

[39] http://www.answers.com/topic/due-process

[40] Ani C. C., The Right to Fair Hearing and the Criminal Process in Nigeria: A Study of the Lagos   Metropolis.

A Thesis Submitted to the School of Postgraduate Studies, University of Lagos, in partial  fulfilment of the

requirements for the award of the degree of Doctor of Philosophy (Ph.D.) in Public Law, 2009, p. 12.

[41] Phillips, J.A. of the Court of Appeal, Trinidad and Tobago, in the case of Lassalle v. Attorney –General,

(1963), F.S.C. 113/19.

[42] G.A. res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988).

[43] Article 5.

[44] Principle 25

[45] Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.

[46] See the Preliminary Observations on the Rules.

[47] Rule 82 (1)

[48] Rule 82 (2).

[49] Rule 82 (3).

[50] Rule 82 (4).

[51] Rule 83.

[52] G.A. Res. 3447 (XXX), 30 U.N. GAOR Supp. (No. 34) at 88, U.N. Doc. A/10034 (1975).

[53] See article 26 of the International Covenant on Civil and Political Rights (ICCPR) General Assembly Resolution 2200 (xxii) of 16 December 1966; articles 2 (2) and 3 of the International Covenant on Economic Social and Cultural Rights (ICESCR), G. A. Resolution 2200 (xxi) of 16^th December, 1966.

[54] Atsenuwa A. V., “Defining Special Needs or Disability”, a paper presented at the Roundtable on the Unserved Handicapped: Raising Respect and Awareness for the Rights of the Disabled in Nigeria, organized by the Nigerian Institute of Advanced Legal Studies, Lagos, 28^th June, 2010, p. 9.

  [55] The Convention on the Rights of Persons with Disabilities and its Optional Protocol was adopted on 13

December 2006 at the United Nations Headquarters in New York, and was opened for signature on 30 March

2007. The Convention entered into force on 3May 2008.

[56] See Article 1 of the Convention.

[57] Available at: http://www.un.org/disabilities/default.asp?id=150

   [58] Nigeria signed the Convention and Protocol on 30/3/2007 and ratified both the Convention and Protocol on

24/9/2010.

[59] The Declaration was proclaimed by General Assembly resolution 2856 (XXVI) of 20 December, 1971.

[60] Adopted by General Assembly resolution 46/119 of 17 December 1991.

[61] The Declaration  was proclaimed by General Assembly resolution 2856 (XXVI) of 20 December, 1971.

[62] Article 6

[63] Article 7.

[64] Article 2.

[65] Adopted by General Assembly resolution 46/119 of 17 December 1991.

[66] Principle 20 (2), ibid.

[67] Principle 20 (3), ibid.

[68] Cap. C23 Laws of the Federation of Nigeria 2004

[69] Right to life except in execution of the sentence of a court in respect of a criminal offence of which the person

has been found guilty.

[70] Right to personal liberty except inter alia, in execution of the sentence or order of a court in respect of a criminal offence  of which he is found guilty and in the case of persons suffering from infectious disease or persons of unsound mind for the purpose of their treatment or the protection of the community (subsection (1) (e).

[71] Section 36 (4), 1999 Constitution

[72] Section 36 (5), ibid.

[73] Section 36 (6) (a), ibid.

[74] Section 36 (6) (b), ibid.

[75] Section 36 (6) (c), ibid.

[76] Section 36 (6) (d), ibid.

[77] Section 36 (6) (e), ibid.

[78] Section 36 (7), ibid.

[79] Section 36 (8), ibid.

[80] Section 36 (9), ibid.

[81] Section 36 (10), ibid.

[82] Section 36 (11) ibid

[83] Section 36 (12), ibid.

[84] See Idigbe JSC in Onagoruwa v. Inspector-General of Police, (1991), N.W.L.R. (pt. 196), p. 613. See also,

Princewill v. Usman, (1990), 5 N.W.L.R, (pt.150), at 275 and Mbele v. State, (1990), 4 N.W.L.R. (pt. 145)

498. 498.

 [85] Ani C. C., op. cit. note 31,p. 20.

[86] See Principle 21 of the Body of Principles for the Protection of all Persons under any form of Detention or 

     Imprisonment.

[87] Such rights include in the area of health, section 4; education section 5; vocational rehabilitation and

Employment, section 6; housing, section 7; accessibility, section 8; transportation, section 9;support and

social services, section 10; sport and recreation, section 11, telecommunications, section 12 and voting access,

section 13.

[88] Molan, M., et al, Bloy and Parry’s Principles of Criminal Law (London: Cavendish

Publishing Ltd., 4^th ed., 2000) p. 25.

[89] Ibid.

[90] Blackstone, 4 Commentaries, 16^th ed.), pp. 24-25.

[91] McClean J. D., & Wood J. C., Criminal Justice and the Treatment of Offenders, (London: Sweet & Maxwell,

1969), p. 265.

[92] Hume, D., Commentaries on the law of Scotland Respecting Crimes 4^th ed. 1844), pp. 1 & 37.

[93] Available at: http://en.wikipedia.org/wiki/Insanity. Last visited on 12/9/2010.

[94] Available at: http://www.law.cornell.edu/background/insane/insanity.html. Last visited on 12/9/2010.

[95] Cap. C 38 Laws of the Federation of Nigeria, 2004.

[96] The expression “natural mental infirmity” means a defect in mental power neither produced by his own default nor the result of disease of the mind. See The Queen vs. Michael Tabigen (1960) 1 NSCC 6 S.C.

[97] Ezediufu vs. The State (2001) 17 NWLR (pt. 741) 82. Section 51 of the Penal Code states that 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.

[98] See Udofia v. State (1981) 11 SC 49; Loke v. State (1985) 1 NWLR (Pt. 1) 1.

   [99] Ngene Arum v. The State (1979) ANLR 255 S.C.

[100] (1985) 1 NWLR (Pt. 1) 1.

[101] At p. 3, ibid.

[102] This section is derived from former section 28 of the Lagos State Criminal Code Law, which is in pari materia with section 28 of the Criminal Code, Cap. C. 38, Laws of the Federation, 2004.

[103] Karimu v. State (1989) 1 NWLR (Pt. 96) 124.

[104] Ani C. C., Nigerian Institute of Advanced Legal Studies Position Paper on the Draft Criminal Law of Lagos

State,  2010, presented at the Lagos State House of Assembly, Alausa, Ikeja, Lagos, June, 2010, p. 7

[105] Harper J. R., A Fingertip Guide to Criminal Law, (Scotland: Butterworths & The Law Society of Scotland,

London & Edinburgh, 1986), p. 94

[106] Doherty, O. Criminal Procedure in Nigeria, Law and Practice, (London: Blackstone Press Ltd., 1990), p.

248.

[107] Section 223 (1) CPA and section 320 (1) CPC.

[108] By section 222 CPA, “asylum” includes a lunatic asylum, a mental or other hospital, a prison and any other suitable place of safe custody for medical observation. The case of Karimu v. State op. cit. note 103, at p. 125, where a Psychiatrist testified that when he observed the Appellant, his mental state was not normal but after some treatment, his mental state improved and he was fit enough  to stand trial. This evidence was given to show that the accused was fit enough to stand trial in accordance with section 223 Criminal Procedure Law of Ogun State.

[109] “Medical officer” means the medical officer attached to any asylum or any medical officer from whom a court¹ requires an opinion. See section 222 ibid.

[110] Ibid, section 223 (2) CPA and section 320(2) CPC.

[111] Ibid, section 223 (3) and section 320 (3).

[112] Ibid, section 223 (4) and section 320 (4).

[113] Ibid, section 223 (5) and section 320 (5).

[114] Ibid, section 224 (1) and section 321 (1).

[115] Ibid, section 224 (2) and section 321 (2).

[116] Ibid, section 224 (5) CPA.

[117] Ibid, section 225 (1) (b) CPA and section 322 (2) CPC.

[118] Section 229 CPA.

[119]  Molan, M., et al op. cit, note 88, p. 251

[120] Section 230 (2) CPA

[121] Cap. C 38 Laws of the Federation of Nigeria, 2004. 

[122] Onakpoya v. Queen (1959) SCNLR 384 and Guobadia v. State (2004) 6 NWLR(869) 350

[123] See Ogwuegbu JSC in Ogbu v. State, (1992) 8 NWLR, (pt. 259) 255.

[124] See Onu JCA in George v. State, (1991) 9 NWLR (pt. 213) 199 at 207; Ejinima v. State (1991) 6 NWLR (Pt. 199) 627 at 642.

[125] See Karibi-Whyte JSC in Asanya v. State, (1991) 3 NWLR (Pt. 180) 422 at 470.

[126] See Onyekwe v. State (1988) 1 NWLR (Pt. 72) 565 at 572-577.

[127] http://www.law.cornell.edu/background/insane/insanity.html. Visited on 5/8/2011

[128] Ejinima v. State  op. cit. note 124

[129] Ibid.

[130] See Onyekwe v. State , op. cit note 126.

[131] Onyekwe v. State, ibid., Ejinima v. State op .cit. note 124.

[132] Doherty O., op. cit. note 106, p. 256.

[133] See section 230 of the Criminal Procedure Act (CPA)

[134] Section 230 (2), ibid.

[135] Osipitan T, “Reform and Unification of Defences which Negative Criminal Intent Under the Nigerian Criminal and Penal Codes” in Osinbajo Y. (Ed.), Unification and Reform of the Criminal Laws and Procedure Codes in Nigeria, (Lagos: Federal Ministry of Justice, 1990), p. 140

[136] Asuni, T. “The Place of Psychiatry in the Administration of Criminal Justice”, in A.A. Adeyemi (Ed.), Nigerian Criminal Process, (Lagos: Faculty of Law, University of Lagos, 1977) p. 288.

[137] Ibid.

[138] “Facts on Mental Health in Nigeria”, posted on April 4, 2009, available at: http://234next.com/csp/cms/sites/Next/Home/5397909-146/story.csp. Last visited on 23/7/2011.

[139]2007-2008 National Prison Audit, (National Human Rights Commission, 2008), p. 15.

[140] Ibid, p. 16.

[141] Ibid.

[142] World Report on Disability, (Malta: WHO & World Bank, 2011) p. 62

[143] Demyttenaere K. et al. WHO World Mental Health Survey Consortium Prevalence, severity, and unmet need for treatment of mental disorders in the World Health Organization World Mental Health Surveys. JAMA: Journal of the American Medical Association, 2004,291:2581-2590., cited in World Report on Disability, ibid.

[144] Ayorinde O., et al, “Psychiatric research in Nigeria: Bridging Tradition and Modernisation” The British  

      Journal of Psychiatry (2004) 184: 536-538, p. 184.

[145] The hospital was run by Dr.Thomas Lambo. See Asuni T., “Aro Hospital in Perspective” Am J Psychiatry 124:763-770, December 1967.

[146] Ibid.

[147] Ibid.

[148]  Ayonrinde O.,et al, op. cit. note 144.

[149] World Health Organization, 2001, cited in ibid.

[150] Available at: http://www.nigeriahealthwatch.com/2009_04_01_archive.html

[151] “Facts on Mental Health in Nigeria”, posted on April 4, 2009, available at:

http://234next.com/csp/cms/sites/Next/Home/5397909-146/story.csp. Visited on 23/7/2011.

[152]Esu, B. B.  and Inyang, B. J. Impacts of Global Economic Crisis on the Consumption of Psychiatric Nursing

Services in Nigeria, European Journal of Economics, Finance and Administrative Sciences Issue 29 (2011)

[153] Ibid.

[154] Available at: http://allafrica.com/stories/200104060188.html. Last visited on 12/7/2011.

[155] Adejoro, L. “Mental siege: 30 million Nigerians are crazy — Expert findings”. Available at:    

    http://nationaldailyngr.com/index.php?option=com_content&view=article&id=5764:mental-siege-30-million-

     nigerians-are-crazy–expert-findings&catid=99:current-cover&Itemid=489. Last visited on 3/6/2011.

[156] Ibid.

[157] Ibid

[158] Esu  B. B. and Inyang, B. J.  op. cit. note 152.

[159] Ibid.

[160] Ibid.

[161] Wrobleski H. M. and Hess K. M., Introduction to Law Enforcement and Criminal Justice, 8^th ed. (Australia:

Thompson, 2006), p. 452.

[162] Ibid.

[163] Denckla D., and Berman G., “Rethinking the Revolving Door: A Look at Mental Illness in the Courts. New

York Centre for Court Innovation, 2001, p. 4

[163] Wrobleski H. M. and Hess K. M., op. cit. note 161.

[164] Ibid.

[165] Mentally Disabled Persons in the Criminal Justice. Available at:

http://www.thefreelibrary.com/Mentally+disabled+persons+in+the+criminal+justice+system-a0160104931

[166] “Broward’s Mental Health Court: An Innovative Approach to the Mentally Disabled in the Criminal Justice System”, op. cit. note, 10.

[167] Esu  B. B. and Inyang, B. J.  op. cit. note 152.