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Age and criminal liability in Ghana: The child who commits no crime

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Generally in law, age is a necessary factor in assessing culpability, liability or capacity. In many instances and matters, the age of a person in question is very necessary to assess whether the particular law can be applied to such a person. For instance, under the companies act, a person cannot qualify as a director where the person is an infant. An infant is defined under the schedules to the companies act as any person below the age of twenty-one years. Thus the law on directorship cannot be applied to a person who is less than twenty-one years (subject to some exceptions).

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Within the criminal jurisprudence of countries, age is also a very vital component. The age of criminal culpability varies from country to country and from crime to crime. Some crimes (especially the sexually related offences) cannot be deemed to have been committed unless the age requirement is proven. For instance, for a person to be guilty of the offence of rape, it must be proven that the victim is sixteen years or above. A person can be guilty of the offence of unnatural knowledge only when the victim is above 16 years. The age requirements of these sexual offences as discussed apply to the victims.

For alleged perpetrators of offences, the law deems some people as being unable to commit offences. At common law, for instance, the crown could be guilty of no crime. This stemmed from the Maxim, the King can do no wrong. Thus, the crown could not be dragged to any court in England for committing any offence even if in fact, the crown committed that offence. An immunity was created on behalf of the crown. Within the Ghanaian jurisdiction also, the President (our crown) cannot be liable personally for a crime whiles in office.[i] Thus, so long as the president remains in office as a president, criminal charges under the Ghanaian laws cannot be pressed against him. No one then can prosecute a sitting president in Ghana under the Ghanaian criminal law for an offence the person may deem the president to have committed.

Children of a certain age are also persons exempted from criminal culpability. They are in law termed as Doli Incapax (that is to say “they are incapable of doing wrong”). They are deemed as not being able to appreciate their choices and decisions. They are further deemed as being unable to distinguish between right and wrong. The different jurisdictions peg the age for Doli Incapax differently. Initially at common law, the age for Doli Incapax was seven years. A child under seven years was deemed as being unable to commit an offence and as such cannot be prosecuted for any alleged crime committed. This was later increased to ten years.[ii] In France, the age is pegged at thirteen (with a qualification of a proof that the child is without discernment).[iii] In Canada and the Netherlands, it is pegged at twelve years. In the United States, the age varies in accordance with the state laws. In Texas and South Carolina for instance, the age is pegged at 16. In New York, however, the age for Doli Incapax is 15.

In Ghana, section 26 of the criminal offences act, 1960, Act 29 provides that for the purposes of the criminal law a person under twelve years of age is incapable of committing a criminal offence. That means that in Ghana, the age at which a person cannot be criminally liable for an offence is the age of 12. Thus, if a child of ten years takes a gun, pulls the trigger at another and kills that person instantly, that child will not be held criminally liable for that act of killing. In the same vein, if the child of 11 years, takes a knife and stabs his/her mother for preventing him/her from watching a show on TV, that child in law commits no offence and as such goes scot-free. The law assumes that the child at that age was unable to appreciate the consequence of his/her action from a legal point. This is still true even if the child pre-meditated the act and in fact intended to kill such a person.

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Having in view the fact that some persons prefers to commit crimes undercover, the law anticipates that some persons may take advantage of the fact of Doli Incapax in committing a crime. The law foresees that since children under the age of twelve in Ghana cannot commit an offence, some persons will rather use them in perpetrating their heinous intents. As such, it is provided under section 13 (1) of the criminal offences Act, 1960, Act 29, that when a person causes an involuntary agent to commit a crime, that person will be deemed to have committed the crime and not the involuntary agent. In effect, if an adult harbours an intention to commit a crime and uses a child under twelve to commit the crime on his/her behalf, the adult will be held criminally liable for the offence and not the child. The child will be considered as a mere instrument in the hand of the adult in committing the crime. To illustrate, if a wife of forty-five years intends to kill her husband but is aware of the ramification of the law, and as such sends her 8-year-old child to put poison in the meal of her husband for the husband to eat that meal, the wife will be deemed as putting the poison in the food of her husband and as such the wife will be criminally liable for anything that happens to her husband. In the same way, if an adult sends a child of nine years to steal a thing, that adult will be deemed to have stolen that thing because the child was merely an involuntary agent.

Given the age requirements in law especially within our criminal jurisprudence, children under the age of twelve must be dealt with a bit more carefully. Their acts do not count in our criminal laws as offences and as such what they do may go without reprimand. Adults must not also seek to take advantage of that to perpetrate their heinous crimes because the law may not hear their excuse as saying the act was committed by the child and not them.

[i] Article 57(5) of the 1992 Constitution.

[ii] (accessed 9 November 2019)

[iii];jsessionid=2BA05DF366407977DF26A1942BCC51D9.tpdjo04v_3?idArticle=LEGIARTI000006495311&cidTexte=LEGITEXT000006069158&dateTexte=20081006 (accessed 9 November 2019)


Source: Kweku Attakora Dwomoh.