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The reality of the saying, ignorance of the law is no excuse!

The author is Kweku Attakora Dwomoh. He is an Associate at Law Plus (Attorneys-at-Law)

Ignorantia juris non excusat or ignorantia legis neminem excusat is translated in English as ignorance of the law excuses not” and “ignorance of the law excuses no one” respectively. This is a common phrase one easily hears from the police or a law enforcement authority when one is in conflict with the law yet seeks to plead that s/he wasn’t aware that that act was forbidden in law. It is a legal principle to the effect that a person cannot escape legal culpability when the person violates the law only because the person claims, s/he wasn’t aware of that law. This principle can be traced as far back as from the Laws God gave the Israelites in the bible in Leviticus 5:17 which states that “If anyone sins and does what is forbidden in any of the LORD’s commands, even though they do not know it, they are guilty and will be held responsible.” The idea behind this is to prevent persons who commit crimes or wrongs from merely pleading ignorance as an excuse. Allowing otherwise will open the floodgates to crime without punishment. Almost every offender will claim ignorance.

Under our criminal laws, “the ignorance of the law is no excuse” mantra is termed legally as Mistake of law and it is provided for under Section 29 of the Criminal Offences Act, 1960, Act 29. It provides that “A person shall not, except as in this Act otherwise expressly provided, be exempt from liability to punishment for an act on the grounds of ignorance that the act is prohibited by law.” By this provision, it is not a defence for a person to commit a wrong and say s/he wasn’t aware it was prohibited by law. In effect, a person will not be allowed to commit an act s/he knew or ought to know it was wrong but claims s/he didn’t know the law punishes it. Thus, if a person steals money or defrauds another, it will not lie as an excuse in law to say, I did not know that defrauding another person has been criminalized in the statute books.

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

A corollary to the “ignorance of the law is no excuse” is the principle of Mistake of Fact. A mistake of Fact albeit similar to the mistake of law has different legal consequences. When a person engages in a wrongful act but did not know (in an honest belief) of the nature of the act, such a person may successfully claim to be under a mistake of fact. It is provided for under section 29(1) of Act 29 thus,  “A person shall not be punished for an act which, by reason of ignorance or mistake of fact in good faith, that person believes to be lawful.” With the mistake of fact, the person claiming the defence isn’t saying, I do not know that the law punishes my act, rather, I do not know the nature of what I am doing. Here, the person is mistaken as to what s/he was doing in the first place. To illustrate the doctrine of mistake of fact is the case of Nyameneba v. The State

[i]. The accused persons were members of a religious sect in the Western Region where they used some herbs in their worship. According to them, the herbs were used as incense to invoke their God during worship. It was also used in healing those afflicted with diseases and even smoked by the members. When the members smoke it, they do not do evil, they preach the good news even more and advise members of the community to desist from evil. For members of the sect, the leaves are known as the Herbs of Life which originates from Genesis 2:9 from the tree of life. The sect had constantly condemned in the community, the use of alcohol and the smoking of cigarettes claiming that people who indulge in them will not go to heaven however those who smoked the herbs of life will rather go to heaven. Investigations revealed that the herbs of life were Indian hemp.

Read:The Offense of rape in Ghana

The sect insisted the herbs they used were not Indian hemp but rather the herbs give life and were ordained by God. The court in construing the nature of the act of the accused persons held that even though the accused had an erroneous belief of the substance they used, they honestly believed it was something else and not Indian hemp. They used the substance openly in the community thinking it was the herb of life and not an illegal substance. In the circumstance, the court concluded that they were mistaken as to the fact of the substance they used and as such a defence of a mistake of fact shall apply. From the case, the accused did not know even of Indian hemp to think that the substance they were using was one. Had they known the leaves were Indian hemp but did not know of Indian hemp being an illegal drug, that would have been a plea of ignorance of the law and that isn’t excusable. They were mistaken as to the fact of the substance in the first place before they could consider whether the substance is prohibited or not.

It is same in the case of R v. Tolson

[ii] where the woman had been led to believe genuinely that her husband was dead. That led her to marry another man after six years her husband had gone missing. She was subsequently charged with the offence of bigamy when her husband returned. The court held that her mistake was honest and reasonable in the circumstance and as such her defence of the mistake of fact must stand.

Read:Acquitting the guilty and convicting the innocent; the lord detests them both

Conclusively, Ignorance of the law isn’t an excuse, but the ignorance of the fact is an excuse to exculpate an accused person totally. Thus, when a male has a sexual encounter with a female of 14 years, an argument to say the accused person did not know that having a sexual encounter with a female of 14 is an offence will amount to a plea of an ignorance of the law and that will not suffice in court. However, a plea of honestly not knowing (and in fact, the circumstances clearly showing that the accused person couldn’t have known the female was 14 years) of the age of the female may amount to an ignorance of the fact and that may successfully exculpate the accused person. Ignorance of the law is no excuse but ignorance of the fact is an excuse.

Author:Kweku Attakora Dwomoh.