BY: KABO, SARINUS ETTOR . LL.B (HONS) BL, LL.M
ABSTRACT
Defences to criminal liability are not hanging in the air or abstract neither do they submit to the rules of morality and custom or traditions of men in the civilize society. Just like the dictates of our criminal jurisprudence provides that before our actions or omissions may constitute an offence such must be a violation of a written law, conversely for there to be a defence to criminal liability such must be a known and written law as a defence. In most cases the statutes which provides these offences also in the same vein provides the relevant defences and the conditions for exculpating the accused. Thus in our statutes for example, the Penal Code and the Criminal Code (as applicable to the North and South of Nigeria) makes provisions for these defences available to an accused person and it is worthy to note that these defences usually imputes in themselves the conditions or requirements that must be fulfilled before he may be exculpated. In most of these defences, the requirement of some degree of the state of mind or mental element such as ‘intention’, ‘knowledge’, ‘negligence’, ‘recklessness’, etc must be seen to be present or absent at the time the act or omission leading to the charge was committed. Specifically with regard to this work, the use of words such as ‘knowingly’, ‘foreseeable’ ‘reasonable’, ‘reasonable man’ usually found in the statutes to a larger extent gives too much judicial latitude to judges to determine who is a ‘reasonable man’ in the circumstances of the case. The law always employs the ‘objective test’ (that is a hypothetical person adjudged to be in the same shoe with the accused person) to determine who is a reasonable man, while on the other hand, the offence committed which he is called upon to determine is ‘subjective’. This work seeks to strike a balance between the problem created in the attempt to do justice in the use of the ‘objective test’ qua the ‘subjective act’ of the individual accused person in criminal defences.