The Nigerian criminal justice system has witnessed some form of improvements in recent times, especially with the enactment of the Administration of Criminal Justice Act in 2015, which was preceded by the Administration of Criminal Justice Law of Anambra and Lagos State in 2010 and 2011 respectively. It is instructive to note that some other states (Ekiti in 2014; FCT, and Ondo in 2015; Rivers 2016; Oyo, Enugu, Akwa Ibom, Cross River, Kaduna, Delta, Kogi, in 2017; Edo, Ogun, Plateau, Osun, Kwara, Adamawa, in 2018; Bayelsa, Kano, Nasarawa, and Benue in 2019) have also enacted Administration of Criminal Justice Laws and as expected, most of the provisions and improvements are similar. However, it appears that these recent improvements despite their critical intervention and value, amount to just scratching the surface.
Some of the highlights of the celebrated improvements hinge on provisions resolving the delay witnessed during trials due to the various loopholes upon which technicality previously thrived. For instance, under this new regime, an interlocutory appeal does not in any way mean that a trial cannot continue. Also, there are provisions that safeguard the right of Defendants under trial; the right to apply that a case be dismissed for lack of diligent prosecution and the provision that a suspect should be allowed access to legal representation especially when statements are to be recorded.
As usual, the bulk of these innovations have not been fully complied with, but it represents a step in a good direction that we have such provisions which can be activated and taken up by interested parties, before the courts to enrich our legal jurisprudence.
The focus of this article was inspired by a news item I read on Linda Ikeji’s blog about a woman who murdered her husband in Kenya and was scheduled to undergo mental evaluation ahead of her trial in court; although her lawyer opposed this procedure by citing that there is no complete charge before the court. However, I am minded to appreciate the procedure observed by the judicial system in Kenya in this respect, as appropriate in ensuring that the Defendant is afforded fair hearing. Also, the recent commemoration of the world mental health day on October 10, 2019, makes this piece imperative.
For a country like Nigeria, where the awareness of mental health is poor, although a number of efforts and initiatives are beginning to emerge to arrest this deficit, this move by the Kenyan judicial system seems alien to the Nigerian Judicial Community. First, mental health issues are mostly avoided in Nigeria; people who have some sort of struggle with their mental health hide it from others due to the stigma that comes with it. A lack of vibrant counselling centres often makes this issue worse. Also, the spiritual and sentimental atmosphere of the Nigerian society seems to be a problem; families, friends and relatives of people with mental health challenges prefer to spiritually cast and bind or wish away such issues, rather than seek professional help.
Further to this, is a problem of a lack of collaboration in a country like Nigeria; where trust issues abound as well as unhealthy competition amongst professional bodies. Ordinarily, mental health advocacy in Nigeria would have made much strides if all stakeholders and the arms of the government collaborate to ensure that there is a working template across board in dealing with such issues and making adequate provisions for people who may have mental health challenges.
As it is, the law does not offer much hope either. The understanding of the concept of mental health as it relates to the justice system is covered by the broad view of insanity, without a proper understanding of its many shades. Basically, one of the defences available to a Defendant standing trial in Nigeria is Insanity. This means that such a person was out of his mind or not in control of his senses as at the time such an offence was committed. The 7th edition of the Black’s Law Dictionary, defines insanity as; “any mental disorder, severe enough that it prevents a person from having legal capacity, and excuses the person from criminal or civil capacity. Section 28 of the Criminal Code covers insanity as follows;
“A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission, he is in such a state of mental or natural mental infirmity as to deprive him of capacity to understand what he is doing, or the capacity to control his actions, or the capacity to know that he ought not to do the act or make the omission.
A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusion to believe to exist”.
The provisions of the law as cited above is confusing. This is as a result of our approach to mental health. Insanity in the Nigeria context, is mostly viewed as a physical manifestation of an illness of the mind. Possible medical certificates or reports are usually perceived, as a ticket for such a person to escape the consequences of their actions. This prejudices against the Defendant who might be truly mentally challenged, makes it difficult for legal practitioners and judges to appreciate the full spectrum of mental health; especially when the Defendant is able to remain coherent, audible and seems to be in proper mind for a large spell of the trial.
Most times, the society in Nigeria does not believe in mental health challenges until it gets to a fully irreversible state; the end stage of depression where the victim commits suicide, or when the victim enters into an irreversible state of mental incapacity. Usually, the victims keep silent or administers self-help alternatives as they can find, due to a possible shaming and victimization. The Nigerian environment is a harsh terrain for victims of mental health challenges. Rather than seek a cure, mental health challenges are seen as a curse.
Judicial pronouncements by Nigerian courts in respect of insanity have also proven that our judges are only inclined to view insanity strictly from the perspective of what is mentioned in the statutes and nothing more. Our statutes are usually ages behind due to the fact that our laws are not regularly updated to meet current trends and development, as well as judges who feel safe in following precedents and most times shun the opportunity to improve the position of law.
In the case of GOUBADIA V. THE STATE (2004) 6 NWLR (PT. 869) 360, the court clearly held that;
“A mere evidence that an accused person had mental disorder without showing that the disorder deprived the accused of the capacity to understand what he was doing and to know that he ought not to have done the act which is called in question is no satisfactory evidence of defence of insanity.”
Having made the points above, it represents a progressive move that sections 217 to 229 of the ACJL and sections 278 to 292 of the ACJA makes provisions covering persons of unsound mind, however, these provisions are not enough. The provisions are a template for the consideration of how to manage persons of unsound mind in a criminal trial, however, it falls short in the practical ways of handling such issues.
The said provisions do not make a clear distinction of when mental health evaluation should be made, and in respect of which type of crimes or offences. It is my opinion that the provision for mental evaluation should be before the trial, so that the court is able to make informed decisions in respect of the case, as against the current position that mental evaluation would only be ordered by the judge, when they have a reason to suspect that the Defendant is of unsound mind. This appears as an analogue way of addressing a sensitive issue in a digital and advanced world. One is forced to imagine what would happen if the judge only gets to make such suspicion on the date judgement was to be given in the matter. It appears tidy and in the interest of justice, that the court should order a mental evaluation as one of the preliminary issues to be dealt with in any criminal matter, especially due to the heavy nature of punishments associated with various crimes and offences.
Our judicial system must begin to understand that epilepsy, concussion, depression, injury to the brain and many other developments are mental health issues that should be considered when determining criminal responsibility. Our judges and legal practitioners should also work with mental health advocates to ensure that there is a proper understanding of these issues.
In conclusion, it would help a great deal if previous criminal cases can be reviewed especially when and where there are reasons to believe that the Defendants had mental health issues as at the time they committed a crime. Rather than the usual powers of the governor to order for a confinement at his pleasure, our government should make provisions for mental health facilities and awareness, and to make laws, regulations and policies, that will ensure that victims of mental health challenges are afforded the full complement of their right to fair hearing in criminal trials.
Mumuni Damilola Rotimi is a Mental Health Legal Practitioner who practices in Lagos, Nigeria. 08082019892, 08064374302; email@example.com