CAUSING HARM
This offence is governed by Section 69 of Act 29.
Section 1 defines harm to be a bodily hurt, disease, or disorder whether permanent or temporary. In this respect, the skin of the victim must be broken but this does not need to amount to grievous bodily harm. Also, inflicting a disease or disorder on the victim will fix the accused with liability.
R v Clarence.
Clarence, who had communicated venereal disease to his wife, was indicted under section 20 of the English Offences Against the Person Act. HELD: It was held that he was not guilty because an infliction under the section could only be by way of an assault. Stephen J opined that: “The words appear to me to mean the direct causing of some grievous injury to the body itself…I think the words imply an assault and battery of which a wound or grievous bodily harm is the manifest immediate and obvious result.” Here there was no assault, because an assault presupposes lack of consent, and the wife had consented.
In the case of psychological harm, it appears from the definition of harm in sec 1 that mental distress alone may not be sufficient unless accompanied by a mental disorder. On this point section 81(b) is even more instructive. So, under our law, psychological harm will not do.
Whatever be the case, the harm must have been caused intentionally and unlawfully. This means that all the prosecution need to prove is to adduce evidence to bring the act that caused harm within any of the provisions of section 11, which deals with intention and also establish that the act was done without any justification recognized under our criminal law. SECTION 76. BROBBEY v THE REPUBLIC.
FEMALE GENITAL MUTILATION (FGM)
Female genital mutilation is governed by section 69A. This provision was amended in 2007 under Act 741. The purpose of the amendment was to change references to female circumcision to that of female genital mutilation to reflect the actual nature of the offence, and to widen the scope of responsibility in relation to the offence. The crux of the offence involves excising, infibulating or mutilating the whole or any part of the labia minora, labia majora or the clitoris.
The labia majora is the outer thick two folds of skin that surround the clitoris, the opening of the urethra, and the opening of the vagina – after puberty, it is usually covered with pubic hair. The labia minora is the inner small folds of skin that lie immediately inside the labia majora and join at the front to form the clitoral hood.
Under Act 29, to “excise” is to remove the prepuce, the clitoris and all or part of the labia minora – Section 66A(3). The prepuce is the skin or foreskin which covers the tip of the clitoris – it is also known as the clitoral hood. The clitoris is a sensitive erectile female sex organ at the front junction of the labia minora, lying above the opening of the urethra and the vagina.
To “infibulate” includes excision and the additional removal of the external genitalia and stitching or narrowing of the vaginal opening – Section 69A(3). To “mutilate” includes any other injury caused to the female genital organ for cultural or other non-therapeutic reasons – Section 69A(3).
The offence of FGM may be committed in one of three ways
⦁ carrying out FGM
⦁ participating in FGM
⦁ being concerned with FGM
In the first situation, a person who carries out FGM by excising, infibulating or mutilating the whole or any part of the labia minora, labia majora or the clitoris of another person is liable to imprisonment of not less than five years and not more than ten years – Section 69A(1).
In the second situation, a person who participates in a ritual or customary activity that subjects a person to FGM also incurs the same liability – Section 69(A)(2).
In the third situation, a person who is concerned with a ritual or a customary activity that subjects a person to FGM also incurs the same liability – Section 69(A)(2).
⦁ to send to
⦁ take to
⦁ consent to the taking to or receive at any place
any person for the performance of FGM
Or
⦁ to enter into an agreement (oral or written) to subject any of the parties to the agreement or any other person to FGM
⦁ sec 69A(3)
CAUSING HARM WITH AN OFFENSIVE WEAPON
According to Section 70, a person who intentionally and unlawfully causes harm to any other person by the use of an offensive weapon commits a first degree felony. Proof that the weapon used is offensive is essential because it is the only distinguishing feature between causing harm simpliciter under sec 69 and that of causing harm with an offensive weapon under sec 70.
There is no definition of offensive weapon. The offensiveness of the weapon in question depends on the circumstances of each case. One test for determining whether an object is offensive is whether it may be used for an aggressive purpose. Yaw Pramang v The Republic, Darko v The Republic
CAUSING HARM BY OMMISSION
A person is only culpable for harm caused by omission if he is under a duty to act. Thus, a person causes harm by omission if he fails to perform a duty for preventing harm – Section 77.
By section 78, a duty to prevent harm to another person may arise in any of the following situations:
⦁ if there exists a duty to supply the other person with the necessaries of health and life – sec 78(a), (necessaries of health and life include proper food, clothing, shelter, warmth, medical or surgical treatment, and any other matter which is reasonably necessary for the preservation of the health and life of a person sec 79(8))
⦁ by imposition of law, or
⦁ by voluntary assumption, or
⦁ under an agreement or undertaking to do an act for the purpose of averting harm to a person, or
⦁ by virtue of a position (office or employment), or
⦁ by a lawful order of a court, or
⦁ by a lawful order of a person – sec 78(b)
Sec 79 elaborates on the incidents of the duty to give access to the necessaries of health and life. R v Senior
By Section 81(a), a person cannot be held liable for omitting to supply the necessaries of health and life to another, unless it is proved that by reason of age or physical or mental state, or by reason of control by the accused person, the other person could not have prevented the harm through reasonable exertion. See section 80 for explanations with respect to office.
NEGLIGENTLY CAUSING HARM
By Section 72, causing harm through negligence is a misdemeanor. All the prosecution need to establish is that although the accused did not intend to cause harm, yet he caused the harm by a voluntary act, done without the skill and care that are reasonably necessary under the circumstances and that the accused did so cause the harm without any justification recognized under our criminal law – See Sections 12 and 76. The degree of negligence here need not amount to a reckless disregard for human life.
See sec 73 for negligently causing harm while operating or engaged in a dangerous thing. OKUTU v THE REPUBLIC, R v NOAKES,
By Section 82, Where a person acts in good faith in respect of the provision of medical or surgical treatment, and intentionally causes harm to the person under treatment, which is due to a lack of the exercise of reasonable skill and care, or the person knows or ought to have known that his action was plainly improper, he will be deemed to have negligently but not intentionally caused the harm – the effect is to reduce the offence from a second degree felony to a misdemeanor.
So, from the illustration, if for instance, a surgeon, through gross negligence, amputates a limb where the necessity to amputate did not arise, the surgeon is not liable to be convicted of having intentionally and unlawfully caused harm, but is liable to be convicted of having negligently and unlawfully caused harm.
In all cases of causing harm, the accused is still liable even if the complainant contributed to the harm by his negligence, act, omission, or trespass – Section 81(d).
THREAT OF HARM
By Section 74, to be culpable for threat of harm, it must be established that the accused threatened the complainant with unlawful harm with the intention to put the victim in fear of an unlawful harm. Threat of harm is a misdemeanor. BEHOME v THE REPUBLIC
THREAT OF DEATH
To be culpable for threat of death, it must be established that the accused threatened the complainant with death, with the intention of putting him in fear of death – Section 75. By Section 17(2), in respect of threat of harm and of threat of death, an expression referring to a threat includes an offer to abstain from doing, or to procure any other person to abstain from doing, anything.
It is immaterial if the threat is conveyed by words, or by writing, or in any other manner. – Section 17(4). It is immaterial whether the threat is conveyed directly, or through another person, or in any other manner. Section 17(4). It is also immaterial whether the content of the threat will be executed by the person doing the threatening against or in relation to the person threatened, or by, or against, or in relation to any other person – Section 17(3).
EXPOSING CHILD TO DANGER
By Section 71(1)(a), It is an offence to unlawfully expose a child under twelve years to danger, or unlawfully abandon him or her. By Section 71(1)(b), It is also an offence to unlawfully expose a physically or mentally handicapped child to danger or to abandon a physically or mentally handicapped child in a manner that is likely to cause harm to him/her.
Section 71(2) defines a child as one below 18 years of age.
MAHAMA HAUSA v THE REPUBLIC
The accused the father of the child was charged with taking care of the child by the mom. He left him at the precincts of the court where he worked without entrusting him to the care of anybody and the child strayed off and was knocked down by a car. He was charged and convicted for unlawful exposure contrary to section 71. held: dismissing the appeal: the gravamen of the offence of unlawful exposure under section 71 of Act 29 was the unreasonable behaviour or conduct of an accused in failing to take care of a child under the circumstances in which he found it thereby opening it to the chance of harm. Although the nature of the offence was criminal, the duty imposed was a civil one. The test applicable was civil, namely, the behaviour of the person who although innocent of ill intention, had failed to act up to the standard set by law which was usually that of a reasonable man. In the instant case, the behaviour of the accused was unreasonable because he negligently left the child without proper care while on his errand and he was caught by section 71 of Act 29
KIDNAPPING
By Section 89, a person who kidnaps another person commits a second degree felony.
By section 90, the offence of kidnapping is committed in any of the following circumstances:
⦁ unlawfully imprisoning a person and taking him out of the jurisdiction of the court without the person’s consent – jurisdiction means a law district, in this instance it appears to refer to taking the person out of the country. R v D
⦁ unlawfully imprisoning a person within the jurisdiction in such a manner that prevents him from applying to a court for his release or from discovering to any other person the place of the imprisonment, or in a manner that prevents a person entitled to have access from discovering the place where the person is imprisoned. R v REID
There is no specification of the age or gender of the victim – so a person of any age or gender may be the victim of kidnapping. It is immaterial whether the accused demanded the payment of ransom.
ABDUCTION
Under Section 91, A person who abducts a child under eighteen years of age commits a misdemeanour. Denyo v The Republic.
The actus reus of the offence consists of one of two things:
⦁ unlawfully taking the child from the lawful possession, care or charge of a person
⦁ detaining the child and preventing him or her from returning to the lawful possession, care or charge of a person
⦁ sec 92(1)(a)&(b)
The mens rea of the offence consists of one of three elements, namely:
⦁ intent to deprive a person entitled to the possession or control of the child, or
⦁ intent to cause the child to be carnally known by any person, or
⦁ intent to cause the child to be unnaturally carnally known by any person
⦁ chapeau of sec 92(1)
There is also a requirement of knowledge, and as such, by Section 92(3), it must be established that the accused knew, or had grounds for believing that the child was in the possession, control, care, or charge of another person.
CHILD STEALING
According to Section 93, a person who steals a person under fourteen years of age, whether with or without consent, commits a second degree felony. All that need to be proved is that the victim was under 14 years old. Consent is immaterial. It is no defense for the accused to assert that he did not know or believe the victim to be under fourteen years or that he had no means of knowing his age
Apart from the age requirement, in order to convict the accused, it must also be established, that:
⦁ the accused unlawfully took or detained the victim with intent to deprive the victim of the possession or control to which another person is entitled – sec 94(1), or
⦁ that the accused unlawfully took or detained the victim with intent to steal anything on or about the body of the victim – sec 94(1) or
⦁ that the accused unlawfully took or detained the victim with intent to cause harm to the victim – sec 94(1).
By Section 94(2), It is not necessary for the prosecution to prove that the person stolen had been taken from the possession, care or a charge of a person, if it is established that some person, other than the accused, was entitled to the control or possession of the victim. In other words, it is enough for the prosecution to show that the accused is not the person entitled to the possession, care, control or charge of the person stolen. REGINA v DJOMOH
Special Provisions with respect to the offences of Abduction and Child Stealing
By Section 95(1)(a), On a charge of abduction or child stealing, it is no defense for the accused to assert that the victim consented – it suffices if the accused persuaded, aided, or encouraged the victim to depart or not to return. Also, by Section 95(1)(b), An intention merely to temporarily deprive a person of the possession or control of the person taken or denied, for however short a time is enough to fix the accused with liability for abduction or child stealing, as the case may be.
However, the accused is not absolved from liability on the plea that he did not know or believe, or had the means of knowing that the age of the victim was under 18 or 14, as the case may be. Whatever be the case, the accused is not exempted from liability for abduction or child stealing as long as he took or detained the victim for an immoral purpose – Section 95(2).
Then also, a person who is in temporal possession, care or charge of a child for a special purpose, say, as a school master, may be liable for child stealing or abduction, if he does acts in relation to the child he is not entitled to so do – such a person cannot give consent to another person to do a thing to the child, which thing is inconsistent with the special purpose for which the child is being kept.
HUMAN TRAFFICKING
This is governed by the Human Trafficking Act, 2005, (Act 694). The Act seeks to prevent and reduce human trafficking within and across national borders, especially for commercial purposes. By Section 2(2), the offence attracts a penalty of not less than five years.
Human trafficking means the recruitment, transportation, transfer, harbouring, trading, or receipt of persons within and across national borders by any of the following acts
⦁ threats
⦁ force or other forms of coercion
⦁ abduction
⦁ fraud
⦁ deception
⦁ abuse of power
⦁ exploitation of vulnerability
⦁ giving or receiving payments and benefits to achieve consent. Section 1(1)
Exploitation includes:
⦁ induced prostitution and other forms of sexual exploitation
⦁ forced labour
⦁ forced services
⦁ slavery, or practices similar to slavery
⦁ servitude
⦁ removal of organs. Section 1(2)
By Section 8 of Act, one is under a duty to inform the authorities if one has information concerning trafficking. Failure to so inform fixes one with liability for a fine of not less than 250 penalty units or a term of imprisonment not less than 12 months or both.
CHILD ABANDONMENT
This offence is governed by Section 96 of Act 29.
There are two situations under which a person may be liable for the offence
⦁ where the person is bound by law, or an agreement or employment to keep charge of the infant and he/she abandons the child, or
⦁ where the person is unlawfully in possession of the child and he/she abandons it.
The court on R v Boulden defined abandon to be to leave a child to its fate. Abandonment arises where the accused leaves the child at a hospital, or at the house of another person, or leaves the child in any other manner. The child should be under five years in the first scenario, but it is not too clear in the second scenario.
Where the accused is bound by law to keep charge of or to maintain the child, he/she need not be the one who initially left the child to its fate – liability arises if after becoming aware that the child has been left to its fate, he/she fails or refuses to retrieve the child from that state.
R v White
A mother of a child under two years placed it the doorstep of the father and left it there. He was in the house at the time, and she called out: “Bill, here’s your child; I can’t keep it. I am gone.” The father some time afterwards came out, stepped over the child, and went out away. About an hour and a half afterwards, the father’s attention was again called to the child still lying in the road. His answer was: “It must bide there for what I know, and then the mother ought to be taken up for the murder of it.” When his attention was called to it again, he said: “I will not touch it; those that put it there must come and take it.” Later, the child was found by the police in the road, cold and stiff. The father contended that he did not abandon the child. HELD: Bovill CJ had this to say, Now, the father was entitled to the custody and possession of the child and he was bound to maintain and provide for it, and to protect it, both morally and legally. The prisoner was aware that the child was lying at his door, and there was clear evidence that he knew it was there, and therefore he had the opportunity of protecting it…The relationship of a father as regards his duty to his child is different from that of any other person