This is governed by section 26 and 57 of ACT 29.
SECTION 26 OF ACT 29
For the purposes of the criminal law a person under twelve years of age is incapable of committing a criminal offence.(doli incapax)
ILLUSTRATION
If A, aged eleven years administers poison to B., A is not criminally responsible and is considered incapable of understanding the consequences of those actions from a legal perspective
R v Waite-defendant was under 14 and was convicted of rape. On appeal he was acquitted of that charge because it was presumed that he was physically incapable of committing the offense- Lord Coleridge
R v Tatam-it was held that boys under 14 years could not be accomplices in sodomy as under law they are unable to
Article 57(5,6) OF 1992 CONSTITUTION
(5) The President shall not, while in office as President, be personally liable to any civil or criminal proceedings in court. NPP V AG, NPP V Rawlings, Amidu v Kuffour
(6) Civil or criminal proceedings may be instituted against a person within three years after his ceasing to be President, in respect of anything done or omitted to be done by him in his personal capacity before or during his term of office notwithstanding any period of limitation except where the proceedings had been legally barred before he assumed the office of President.
Amidu v Kuffour
DIPLOMATIC IMMUNITY- ART 31 OF VIENNA CONVETION ON DIPLOMATIC RELATIONS
A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.
He shall also enjoy immunity from its civil and administrative jurisdiction except in certain cases Armon v katz, Garcia v Torrejoh, tsatsu v the republic
The law is not saying that what a child below 12 does is criminal but since he is below 12 he is excused from punishment – rather, the law is saying that that child cannot commit a crime.
There was what was termed mischievous discretion – where, in respect of a child between ages 7-14, a rebuttable presumption of innocence was established, which could be rebutted by evidence that the child knew that what he was doing was wrong. The concept of mischievous discretion with respect to infants is NOT APPLICABLE in Ghana – the presumption of innocence until proven guilty only applies to persons who are 12yrs and above.
However, there appears to be an unsettled issue in the area of sexual offences with respect to children between ages 12-16. In Ghana, the age of sexual consent is 16yrs – that is to say, a child below 16yrs is incapable of giving his/her consent to sexual acts. Therefore, under sec. 101, a person who engages in sexual conduct with a child under 16yrs is guilty of defilement – it does not matter whether the child consented to the act. Thus, where the child is below 16yrs, his or her of lack of consent puts the perpetrator in jeopardy of being convicted for defilement
But what if the child is the perpetrator of that sexual offence?
Two scenarios
⦁ A boy of 14yrs has sex with a girl of 13yrs with her consent – has any of them committed defilement, since neither partner is of the age of consent?
⦁ A boy of 15 forcibly has sex with a girl of 17 – is the boy liable although by the operation of law he cannot consent to a sexual act?
The problem is this: Under sec. 26 both boys in scenarios 1 & 2 are doli capax, that is, they are legally accountable for their actions, because they are above 12 yrs – however, under sec. 101, the law is that both boys cannot consent to sexual acts – so it seems that although on the face of it they have committed a criminal offence, yet the law in the same breadth is saying they cannot consent to sexual acts – so wherein lies their liability, if any.
Is it the case that where the child is the victim then the law holds that he/she cannot consent but that where he is the perpetrator the law assumes that he should be held liable for violating another’s sexual privacy?
In the case of scenario 2, it may sound plausible to suggest that since the 15yr old boy applied force to have a sexual connection with the girl, the law should hold him liable since to hold otherwise would lead to the incongruous situation of excusing an offender who is clearly doli capax merely on the thin ice ground that he cannot consent to a sexual act.
Scenario 1 presents an even more difficult hurdle – this is because there was no force applied in the sexual connection – both parties were willing participants – both are doli capax – both cannot consent to sexual acts – their act was fully consensual – can each be held liable for defiling the other?
An attempt is made at common law to address this problem by the institution of an irrebuttable or a conclusive presumption that a child under 14 yrs is incapable of committing rape – that is, he is malita non supplet aetatem – physical incapacity to commit the offence.
There appears to be no concept of malita non supplet aetatem on this point under the Criminal Offences Act.
Would a Ghanaian court adopt the malita non supplet aetatem principle to hold that since a child under 16yrs is legally incapable of granting his/her consent to sexual acts, the 15yr old boy in scenario 2 is to be conclusively presumed to be incapable of committing a sexual offence because he is not yet 16yrs and so should be exculpated from liability?