Towards a Legislative Reform of the Doctrine of Doli Incapax Under the Nigerian Criminal Code Act

Afolasade Adewumi ,Victor O Adenekan

doi:10.7176/jlpg/95-05

Abstract

The New King James Version of the Holy Bible states in Proverbs 22:15 that, ‘foolishness is bound in the heart of a child, but the rod of correction shall drive it far from him’. When a child due to this inherent folly that pervades his heart, commits a wrong, some of the pertinent questions that may be asked include: Should such child be punished for the wrong committed? How can it be established that the child asides having demonstrated a guilty act had, at the time of the commission of the wrong, a guilty mind? These are some of the questions which this paper attempts to answer while examining criminal responsibility of children in the Nigerian legal system with a careful consideration of Section 30 of the Criminal Code Act which provides for the defence of immature age, otherwise known as the doctrine of doli incapax . In its analysis, this paper submits that although the inclusion of a statutory provision for the defence of immature age in the Criminal Code Act is quite laudable, there are some inconsistencies inherent in the tripartite provisions of Section 30 of the Criminal Code which do not conform to the dictates of logic, common sense and the realities of the Nigerian society. Thus, comparing the Criminal Code with the Penal Code of Northern Nigeria, this paper suggests that there is an urgent need for a legislative amendment of Section 30 of the Criminal Code. Keywords: doli incapax , criminal responsibility, minimum age of criminal responsibility, Nigerian Criminal Code Act, Nigerian Penal Code. DOI: 10.7176/JLPG/95-05 Publication date: March 31 st 2020

Highlights

According to Dubber, (Dubber 2000) criminal law is concerned with providing an answer to the singular question: ‘who is liable for what?’ Where an individual is found guilty of a crime, the court must base its conviction on the ground that it found the defendant guilty of the offence with which he/she was charged
The determination of the guilt of an offender is predicated on the presence of criminal responsibility which includes the physical and mental elements of actus reus and mens rea respectively. (Onoyiwa v State) Criminal responsibility means criminal liability, and it presupposes that a person should only be punished for an offence committed where it can be proved that the act was a crime and the offender had the capacity to appreciate the quality of his actions (Gardner 2008)
In a bid to expose some of the inconsistencies inherent in the provision of the Criminal Code in relation to the doctrine of doli incapax, this paper compared and contrasted the provisions of Section 30 of the Criminal Code with that of Section 50 of the Penal Code

Summary

Introduction

According to Dubber, (Dubber 2000) criminal law is concerned with providing an answer to the singular question: ‘who is liable for what?’ Where an individual is found guilty of a crime, the court must base its conviction on the ground that it found the defendant guilty of the offence with which he/she was charged. The third statement of law, unlike the second is specific and provides for an irrebuttable presumption of law as it states that a male child that is below the age of twelve (12) cannot commit the offence of rape The fact that this provision contains an irrebuttable presumption can be logically deduced from the second statement of law which has provided a general proposition as to the fact that children under the age of twelve (12) years are incapable of committing any offence unless it can be shown that they had sufficient mental capacity at the time of the commission of such offence. On investigation it was discovered the three boys had been watching pornography at a local video bar, and it appears they copied actions they had seen on video

Conclusion

Justice and Delinquency