Mental Health and Criminal Law in Ghana

Mental health issues have dominated global health conversations over the years, mainly due to the increasing rates of suicide, depression and substance abuse, especially among the youth. Mental health encompasses the emotional and psychological wellbeing of a person.

In Ghanaian criminal legislation, there are offences that border on the affected mental health of accused persons at the time of the commission of those offences. An example is the offence of attempted suicide^[1]which is a misdemeanour. According to the World Health Organisation, about 800,000 people die due to suicide every year.^[2]There are currently international best efforts and campaigns in suicide prevention that aim at tackling the problem by dealing with the underlying emotional and psychological causes.

Another such offence is the killing of babies by their mothers after birth^[3]. A person who intentionally causes the death of another person by unlawful harm commits manslaughter, and not murder or attempted murder, if that person being a woman caused the death of a child, which is a child under the age of twelve months, at a time when the balance of her mind was disturbed because she had not fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent on the birth of the child. The World Health Organisation reports that worldwide, about 13% of women who have just given birth experience a mental disorder, primarily depression, sometimes so severe that it could lead to suicide.^[4]

Our laws under the Mental Health Act of 2012 (Act 846)^[5]and the Criminal Offences Act, 1960 (Act 29)^[6]however recognise that criminal offenders suffering from mental health disorders require treatment and support, not punishment. Act 846 makes special provision for offenders with suspected mental disorders^[7]to be assessed and be committed to treatment at a mental health facility or psychiatric hospital.Act 29 also makes provision for a special verdict where an accused person is insane.^[8]Insanity here has been defined as follows^[9]:

(a) if that person was prevented, by reason of idiocy, imbecility, or a mental derangement or disease affecting the mind, from knowing the nature or consequences of the act in respect of which that person is accused; or  

(b) if that person did the act in respect of which that person is accused under the influence of an insane delusion of a nature that renders that person, in the opinion of the jury or of the Court, an unfit subject for punishment in respect of that act. (Emphasis mine)

A special verdict means that on trials on indictment, a jury will find such a person guilty but insane on the basis that the person did the act charged but was insane at the time when the act was committed.^[10]Where the special verdict is found, an order may be made for the safe custody of the accused as a criminal lunatic in a place of detention, prison or any other suitable place of custody and in a manner considered fit, or for the absolute or conditional discharge of such a person.

Recognition of the fact that accused persons who suffer from some mental health disorder are unfit subjects for punishment is a crucial step in developing a national strategy to effectively deal with mental health challenges in our criminal justice system. A committed strategy for improving the mental health of offenders should not end with legislation. Efforts must be made to ensure the availability of and accessibility to more mental health facilities for the effective implementation of such legislation while dealing with existing challenges facing the already over-crowded and overwhelmed mental health facilities in Ghana.

Acknowledgement: Thank you, Kofi Gbedemah for drawing attention to this pertinent issue and for inspiring the writing of this article.

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^[1]Section 57(2) of the Criminal Offences Act, 1960 (Act 29)

^[2]WHO, 2019: https://www.who.int/mental_health/suicide-prevention/en/

^[3]Section 52(d) of Act 29

^[4]WHO, 2019: https://www.who.int/mental_health/maternal-child/en/

^[5]See section 76

^[6]See section 27

^[7]“Mental disorder” is defined in section 97 of the Act as a condition of the mind in which there is a clinically significant disturbance of mental or behaviour life and manifesting as disturbance of speech, perception, mood, thought, volition, orientation or other cognitive functions to such degree as to be considered pathological but excludes social deviance without personal dysfunction. Provision is made for persons with mental disorders at the time of the commission of the offence and persons with mental disorders during their trial after the commission of an offence.

^[8]Section 27 of Act 29

^[9]Supra

^[10]Section 137 of the Criminal and Other Offences Procedure Act, 1960 (Act 30)