"Interrogating the Criminal Responsibility of a Minor Under the Nigerian Criminal Law System: Whether a Minor Can be Charged with Offence of Treason in Nigeria."



"Interrogating the Criminal Responsibility of a Minor Under the Nigerian Criminal Law System: Whether a Minor Can be Charged with Offence of Treason in Nigeria."


 

"Ever since the dawn of history crime has been with us and it is no exaggeration to say that it is a product of society. " (Kharisu Sufiyan Chukkol: 2010). It is trite that if there is no law, there is no sin. On the other hand, this amount to saying that if there is law, there is sin. It is an open secret that whenever an offence is committed the following must be identified: (a) there must be the written law proscribing the act or omission making it an offence (b) the laid down punishment for such an offence (c) criminal responsibility and lastly (d) the offender. In examining the Nigerian criminal law system, it is apropos to state that there are two criminal laws guiding the administration of criminal law system in Nigeria. Firstly, in the Southern part of Nigeria, the Criminal Code is the applicable criminal law there. The Criminal Code has its origin from the Queensland in Australia. Secondly, in the Northern Nigeria, the Penal Code is the applicable criminal law over there. It has its origin from Sudan Penal Code. In interrogating the criminal responsibility of a minor under the Nigerian criminal law system recourse shall be made to the Nigerian Criminal Code Act, Penal Code, Administration of Criminal Justice Act, 2015 and the Child Right Act, 2003. 

By virtue of section 1 of the Criminal Code criminal responsibility "means liability to punishment as for an offence." Under the Child's Rights Acts 2003, a child is a person under the age of 18 years. According to Proverbs 11:21 "Though hand join in hand, the wicked shall not be unpunished..." An offender will never go scot-free under the Nigerian criminal law system. However, it is necessary to know the position of the law in respect of criminal responsibility of a minor. The crux of this paper is to ascertain the criminal responsibility of a minor under the Nigerian Criminal law system and whether a minor can be charged with offense of treason in Nigeria and if yes, what are the laid down procedures for the adjudication of the fate of such a minor. The provisions of sections 30 and 50 of the Criminal Code and Penal Code respectively shall be examined in respect of the criminal responsibility of a minor under the Nigerian criminal law system. 

Pursuant to section 30 of the Criminal Code

 "A person under the age of seven years is not criminally responsible for any act or omission.

A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.

A male person under the age of twelve years is presumed to be incapable of having carnal knowledge."

It can be deduced from the above provision of the Criminal Code that a minor under the age of seven years is incapable of committing an offence so he/she cannot be held criminally liable for an offence under the Nigerian Criminal Law. There is a strong presumption that a minor under the age of seven lacks the capacity to commit an offence (doli incapax). Also, a minor under the age of twelve can be held criminally liable if it can be proved that at the time of committing the offence he has the capacity to know that he ought not to do the act or make the omission. Thus, illustrative in this instance is the Indian case of Musamut Aimona (1969) I. L. R, 43 where the accused, aged ten years killed her husband and hid herself the court held that she had attained a sufficient degree of maturity to know the heinous character of her act. Similarly, in another Indian case of Ula Mahapatra (1950) A.I.R. Orissa 293 an eleven year old boy threatened to cut the deceased into bits and later stabbed him to death with a sharp knife. The court held that his action could lead to only one inference, namely, that he did what he had intended to do and in fact knew that a cut made by a sharp knife could cause death or serious bodily injury. He was therefore convicted for murder. Lastly, under the Criminal Code a male person under the age of twelve years is presumed to be incapable of having carnal knowledge. However, he may be convicted of the lesser offence of indecent assault. (See section 231 of the Administration of Criminal Justice Act, 2015; R v Waite (1892) 2Q B. 600.) 

Furthermore, section 50 of the Penal Code provides " No act is an offence which is done- Act of child.

   (a) by a child under seven years of age; or .

   (b) by a child above seven years of age but under twelve years of age who has not attained sufficient maturity of understanding to judge the nature and consequence of that act.


Summarily, under the criminal responsibility of a minor under the Nigerian criminal law system Okonkwo and Naish (2018) assert that: 

"No problem better illustrates the necessary arbitrariness of the legal concept of criminal responsibility than the problem of when to hold a child liable for an offence, because the solution is simply in arithmetical terms. People are divided into three age-groups. 

(a) A child under the age of seven is not criminally responsible for any act or omission 

(b) A child who is seven or over but under the age of 12, is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission, he had the capacity to know that he ought not to do the act or make the omission. 

(c) At the age of 12, a child becomes fully responsible according to the criminal law."

The other part of this paper shall venture into providing an answer as to whether a minor can be charged with an offence of treason in Nigeria and what is the laid down procedures for the determination of the fate of such a minor in the light of the provisions of Child Right Acts, 2003.  



On the issue of whether a minor can be charged with an offence of treason. The answer to this is in the affirmative however it is apposite to state clearly and categorically that the laid down procedures as contained in the Child Right Acts, 2003 for the adjudication of the fate of such a minor must be followed. By virtue of section 204 of the Child Right Acts, 2003 "No child shall be subjected to the criminal justice process or to criminal sanctions, but a child alleged to have committed an act which would constitute a criminal offence if he were an adult shall be subjected only to the child justice system and processes set out in this Act." Also, as far as the question of proving age is concerned, if it appears to a court that an offender was a child or young person at the time of committing an offence, he shall be presumed so, unless the contrary is proved. This is the extant provision of section 265 of ACJA 2015. 

The following is the extant procedures as laid down by the Child Right Acts, 2003 for the adjudication of a minor charged with a criminal offence (treason). Until the age of 18, children are dealt with in special courts- family Courts. These courts are provided for by the section 149 of the Child Right Acts. The public and the press are not admitted. Only the members and officers of the courts, the parties and their counsel, parents and guardian of child and other persons directly concerned in the case are allowed to attend the court. (s. 156 of the Child Right Acts). There is no publication of the identity of the child. (s.157 CRA) . The words "conviction" and "sentence" are not to be used ( s. 213(2) CRA), the child's right to fair hearing and compliance with the due process shall be observed, (s. 214 CRA), his legal status as a child shall be respected (s.214(2) (a)) and the proceeding shall be conducted in such a manner as to respect the legal status of the child and promote his best interests and well-being ( s. 214(2)(a)(b))

The courts which should be staffed by people who are trained in dealing with children ( s. 154 CRA) , have at their disposal a wide range of methods, (s. 233 CRA) but no child shall be ordered to be imprisoned (s.221(a) CRA) or subjected to corporal punishment. (s. 221(b) CRA). And no child shall be subjected to the death penalty or have the death penalty recorded against him. (s. 211(1) (c) CRA). It would appear also that the death penalty cannot be recorded against an adult who was a child when he committed the offence. This provision has overrode the decision of the court in the case of R v Bangaza (1960) 5 FSC 1. 

In conclusion, having examined the criminal responsibility of a minor under the Nigerian criminal law system by considering the provisions of sections 30 and 50 of the Criminal Code and Penal Code respectively, it is submitted that a minor under ranging above the age of 7 to 18 years can be charged with offence of treason in Nigeria. However, the laid down procedures for the determination of the fate of such a minor as provided in the Child Right Acts, 2003 must be followed. However, there has been an upsurge movement from the concept of responsibility towards the welfare jurisdiction. The care and protection of the child is the sole aim of the concept of child welfarism as opposed to the criminal responsibility theory. If he has committed the offence, the court's decision must be aimed at the child's welfare. 


Olawuni Samuel Idowu (SanAfflatus)

0 comments:

Post a Comment

Share

Twitter Delicious Facebook Digg Stumbleupon Favorites More