Criminal Liability in Nigeria
Generally speaking, an offence is made up of two elements, required for commission and liability. These are the physical element (actus reus) and mental element (mens rea).
Although the later may refer to two concepts – men rea as an element of an offence to be proven for culpability in every offence, or the English doctrine of mens rea which is a rule of statutory interpretation or criminal liability.
The physical element of an offence is quite straightforward and easy to ascertain. It is objective, rather than the mental element, which is subjective. Actus reus may be an act or omission of the offender, or even the consequence of the actions done. In the offence of stealing, for example, taking possession of an unowned object is an act that constitute the actus reus of the offence.
Section 515 of the Nigerian Criminal Code recognizes the neglect to prevent the commission of a felony as an offence punishable by two years imprisonment. This is a clear case of an omission. Also, in the offence of murder, it is the death of the victim – which is a consequential effect of the real actions of the offender e.g. shooting – that amounts to the real actus reus of the offence. This is a case of causation.
The English doctrine of mens rea, applicable in Nigeria, emphasizes that unless as expressly provided by statute, the guilty mind of an offender must be proven for culpability. In other words, unless otherwise provided, the definition of any crime requires the fulfillment of a mental element for liability. According to Lord Reid, “whenever a section is silent as to mens rea, there is a presumption that, in order to give effect to the will of parliament, we must read in words appropriate to require mens rea.”
The recognizable level of culpability to an offence is dependent on the form of mental element involved. The Model Penal Code, of the United States of America, defines four levels of culpability, namely: purposely, knowingly, recklessly, and negligently. Additionally, the authors – Okonkwo and Naish – noted five levels namely: intention, recklessly, negligently, accident, and unconsciousness. In the later, the different levels are categorized based mainly on the foresightedness and desire of the offender.
If the offender foresaw the crime and desired it, then he was ‘intentional’. If he foresaw it, but did not desire it, he was ‘reckless’. A negligent offender did not foresee the criminal consequence of his action, even though he could reasonably have. While an accident is an event that was neither foreseen nor desired by anybody. An unconscious offender is in a state of automatism.
The English doctrine of mens rea is not as straightforward as it seems, as this can be seen in similar cases of R v. Hibbert and R v. Prince, as well as R v. Tolson and R v. Wheat and Stocks.
The Nigerian Criminal and Penal Codes on Criminal Liability
It has been argued that there exists no reason why mens rea in its English doctrine form should still be applicable in Nigeria, particularly in the Southern region of the country, because the mental requirement of criminal liability is adequately provided for the Nigerian Criminal Code Act.
The local provision of Nigerian law could replace the English doctrine like section 7 of the Evidence Act has done to the common law doctrine of res gestae. (The res gestae of a crime includes the immediate area and all occurrences and statements immediately after the crime)
The whole of Chapter V of the Criminal code is directed towards the issue of the determination of criminal liability. The chapter elucidates on general defenses like insanity, intoxication, immaturity, Bona fide claim of right, etc. However, significant provisions as to intention and mistake can be seen in Section 24 and 25.
First paragraph of Section 24 provides, “Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.”
Clearly, the Criminal Code Act prohibits the endorsement of criminal responsibility on a person who did not act willfully, or in the case of an event which occurs by accident. In other words, unless as otherwise provided as pertaining to negligence, a committer is not criminally liable unless he is proven by the prosecution to have acted willfully.
Section 25 of the Criminal Code Act goes further to provide the absence of criminal responsibility in a situation of mistake of fact. It provides, “A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things, is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.” In other words, unless as provided by law, a committer is not criminally liable for an act committed under a mistaken fact (and certainly not law).
From the foregoing, it is clear that the criminal code act provides expressly for the requirement of criminal liability, which means the Nigerian State, and particularly the Southern part therefore, do need any recourse to an external law to establish the principle of mens rea.