^{page 219 note 1} For results regarding all 114 cases and 205 accused, see Bienen, Leigh, ‘Criminal Homiride in Western Nigeria, 1966–1972’, in Journal of African Law (London), XVIII, I, Spring 1974, pp. 57–78.Google Scholar

^{page 221 note 1} Unless otherwise indicated, the statistical and demographic information in this section is from the Ministry of Planning and Reconstruction, Western State of Nigeria Statistical Abstract (Ibadan), 1970–1971, based upon the 1963 census.Google Scholar

^{page 221 note 2} Cf. Mabogunje, Akim L., Urbanization in Nigeria (London, 1968).Google Scholar

^{page 222 note 1} See Milner, Alan and Asuni, Tolani, ‘Psychiatry and the Criminal Offender in Africa’, in Milner, (ed.), African Penal Systems (New York, 1969), pp. 319ff.Google Scholar

^{page 222 note 2} See ‘Number of In-Patients Treated in Western State Mental Hospitals by Type of Lunatic, 1960–1969’, in Western State of Wigeria Statistical Abstract, table 92, p. 105. The addition of one new professional staff member could affect the figures by somewhere near 30 per cent. The number of patients treated is limited by the available staff and beds.

^{page 222 note 3} This information is from interviews and from several earlier studies. Homicide in Nigeria was studied by Bohannan, Paul, African Homicide and Suicide (Princeton, 1960);Google ScholarAsuni, Tolani, ‘Homicide in Western Nigeria’, in British Journal of Psychiatry (London), 115, 1969, pp. 1105–13;Google Scholar and A. Emovon and T. A. Lambo, ‘A Survey of Criminal Homicide in Nigeria’, undated mimeograph, Behavioural Science Research Institute, University of Ibadan. Also relevant is work done outside the field of law. Several studies have dealt with witches and other traditional ways of treating mental illness. The Yoruba have attracted attention from ethnographers, and those interested in medical research, because of their elaborate and long tradition of treating the mentally ill. See e.g. Prince, Raymond, ‘Indigenous Yoruba Psychiatry’, in Kiev, Ari (ed.), Magic Faith and Healing (New York, 1964), pp. 84–120.Google Scholar The most systematic study was conducted by a joint team from Cornell University and Aro Hospital: Leighton, T., Lambo, T. A. et al. Psychiatric Disorder Among the Yoruba (Ithaca, 1963).Google Scholar See also Lambo, T. A., ‘Malignant Anxiety, A Syndrome Associated with Criminal Conduct in Africans’, in Journal of Mental Science (London), 05 1962, pp. 256–64;Google Scholar T. A. Lambo, ‘Patterns of Psychiatric Care in Developing African Countries’, in Kiev (ed.), op. cit.; Asuni, Tolani, ‘Suicide in Western Nigeria’, in British Medical Journal (London), II, 12 1962, pp. 1091–7;Google Scholar and Prince, Raymond, ‘The Yoruba Image of the Witch’, in Journal of Mental Science, 07 1961, pp. 795–805.Google Scholar Prince also helped to make a colour film of traditional methods of healing, called Were Ni (Mad Man), available through the Institute of African Studies, University of Ibadan. Of particular interest to lawyers: Seidman, R. B., ‘Witch Murder and Mens Rea: a problem of society under radical social change’, in Modern Law Review (London), 28, 1965, pp. 47–61;Google Scholar and Milner and Asuni, op. cit.

^{page 223 note 1} See Lambo, ‘Patterns of Psychiatric Care in Developing African Countries’, op. cit. pp. 449–50: ‘One of the most unusual features of our pattern of care for the mentally ill in Nigeria is our unorthodox collaboration with the traditional healers… For a number of years [we have] made use of the services of African “witch doctors”… a procedure that is indefensible by Western standards. Through their participation we have enriched our scientific knowledge of the psychopathology and psychodynamics of the major psychiatric disorders occurring in these exotic societies. We have also been able to accumulate a mass of data on the natural history and prevalence of many psychiatric disorders, in terms of cultural and social variables (variables that are ill defined and remain resistent to Western forms of categorization). Without the help of the “witch doctors” we would not have known how and where to look and what obstacles to skirt in searching for simple disorders like obsessional neurosis in the indigenous population of Africa.’While Aro Hospital has not maintained traditional healers on its staff, the entire philosophy behind the Aro village scheme combines traditional habits with some modern direction in order to maximise the effectiveness of care, given extreme shortages of supplies and trained personnel. The western-trained staff, headed by Dr. T. Asuni, remain especially sensitive to ways in which traditional notions can aid in cure and treatment. Lambo also argues that even highly educated Nigerians, presumably including judges, retain many traditional beliefi: ‘In a study of a group of Nigerian students who broke down during their courses of university study in Great Britain in 1957, it was found that the symptoms in more than 90% of the patients offered clear-cut evidence of African traditional belith in bewitchment and machinations of the enemy.’ Ibid. p. 445, See also Lambo, , ‘Characteristic Features of the Psychology of the Nigerian’, in West African Medical Journal (Ibadan), IX, 3, 1960, pp. 95–104.Google Scholar

^{page 224 note 1} The law of homicide is contained in the Nigerian Criminal Code, ch. 27, sections 306–29, and is word for word identical with the Criminal Code in the Western State. The Northern States are governed under a different system of substantive and procedural law: the Nigerian Penal Code of the North and the Northern Nigerian Criminal Procedure Code. There are no degrees of murder: capital punishment is mandatory upon conviction. Manslaughter is the residual category for all homicides which are not murder. An annotation of cases is included in Brett, Lionel and McClean, Ian, The Criminal Law and Procedure of Lagos, Eastern Nigeria, and Western Nigeria (London, 1963); the discussion of homicide is on pp. 676 ff.Google Scholar

^{page 224 note 2} However, magistrates do not have trial jurisdiction over homicide; these cases go to them only for preliminary hearing, and are then referred to the High Court for trial. Appeal from conviction is first to the Western State Court of Appeal, established in 1967, and finally to the Federal Supreme Court. Requests for clemency then rest with the Western State Committee for the Prerogative of Mercy. Clemency can also be granted by the Governor of the State, and by the President of the Federation.

^{page 225 note 1} The Armed Robbery Tribunal consists of one high court judge, one military officer, and one police officer, and is outside the court structure; there are no appeals from its decision. As of December 1972, 18 accused had been so sentenced and publicly executed in Western Nigeria. By way of contrast, judicially-ordered death Sentences are not publically recorded, and are not reported to any but the immediate family of the accused. The trend, however, has been towards a decrease. Although 66 in 114 cases, involving 205 accused, had the death penalty upheld through all stages of appeal, only 35 were executed during the period 1966–72, and they included some sentenced previously. In recent years, particularly, the number of judicially-ordered executions has declined markedly, although the reasons are not clear. In 1970 and 1972, only one such execution was carried out; in 1971, there were four.

^{page 225 note 2} The common procedure is for a police officer to take the confession in the language of the accused, who will sign the English-translated and transcribed version after it has been read aloud to him and retranslated. Since counsel for the defence first consults the accused many months afterwards, it is not uncommon for the confession and/or the translation to be objected to at the trial. Few such objections are sustained, however. See the Evidence Act, pt. 2, sections 27–32. The relevant Nigerian case law is: R. v. Omokaro, 7 W.A.C.A. 146; R. v. Prater (1960), 1 A.E.L.R. 298 (need for corroboration); and also R. v. Kanu (1952), 14 W.A.C.A. 30.

^{page 226 note 1} The form of judgement for an insanity acquittal is: Not Guilty by Reason of Insanity. See R. v. Yayiya of Kadi Kadi (1957), N.R.N.L.R. 207. The common law on insanity is: R. v. Mungu, 14 W.A.C.A. 379 R. v. Amponsah, 4 W.A.C.A. 120; R. v. Dim, 14 W.A.C.A. 154; R. v. Adi, 15 W.A.C.A. 6; R. v. Aliechem (1956), 1 F.S.C. 64. The case-law on insanity in Nigeria is summarised in R. v. Yayiya of Kadi Kadi, supra. Some few older cases will use the English special verdict: Guilty but Insane.

^{page 227 note 1} The law regarding unsoundness of mind, such as to render an accused unfit to stand trial, is set out in the Criminal Procedure Act, pt. 25, sections 222–35. In all the cases of homicide which were reported and tried during the period 1966–72, only one accused person was found unfit to stand trial: State v. Sunday Lawayi, Ibadan, 1966. The common procedure is to remand an accused who shows symptoms of mental illness to Aro Hospital. The statutory limit upon such a detention is one month, followed by two months; however, a further extension is a formality. Medical testimony, but not necessarily that of a psychiatrist, is required before a finding of unfitness to stand trial. Also, if the accused is found fit to stand trial, that proceeding is a part of the trial. Cf. the rule in U.S. federal law, where findings and evidence at the hearings on fitness to stand trial, and on the issue of insanity, are kept strictly separate, e.g.Greenwood v. United States, 350 U.S. 366 (1956). Medical testimony is not required for a finding of insanity leading to acquittal.

^{page 227 note 2} Criminal Code Law, ch. 5, section 28. The practical application of the second paragraph is very limited. This refers to the treatment of an accused suffering from delusions. A ‘mistake of fact’ defence is substituted in those cases, i.e. if the mistake, had it been true, would have been exculpating, then the delusion will exculpate. See the discussion and annotation in Brett and McClean, op. cit. pp. 477 ff. The standards in other African jurisdictions are discussed by Milner and Asuni, op. cit., and Aguda, ch. 12, ‘Mental Abnormality’, in Principles of Criminal Liability in Nigerian Law (Ibadan, 1965). See also Aguda, A., Select Law Lectures and Papers (Ibadan, 1971), pp. 50 ff. (history of the criminal code), and pp. 149–50 (treatment of insanity under customary law).Google Scholar

^{page 228 note 1} Aguda, ibid. p. 149.

^{page 229 note 1} Particularly, the refusal to relate back psychiatric evidence to behaviour at the time of the time of the crime, as in Case 6, p. 244 below, would be an unlikely result in the U.S. Also, in Freudian-conscious America the very stereotyped killings of parents would be likely to be found the actions of an insane person. In the U.S. the fact of a detailed confession would not be cited as evidence that the cognitive requirement of the M'Naghten test was fulfilled.

^{page 229 note 2} Recent developments in the ‘right to treatment’ cases may reverse this trend in the U.S.

^{page 230 note 1} Leighton, Lambo, et al. op cit. pp. 146–7. Specifically, table VII-8: ‘Certain Cultural Items by Psychiatric Rating of Respondents in the Yoruba Villages’. Without going into the way in which psychiatric impairment was measured, nor to dismiss serious criticism of the study which has been made, it is worth reporting the following: 5 per Cent of those rated ‘well’ believed in witches, and 55 per cent of those with ‘severe psychiatric disorder believed in witches.’ The difficulties of distinguishing between an ‘irrational’ belief in the supernatural and a legitimate, traditional belief, in the supernatural is discussed in Lambo, , ‘The Role of Cultural Factors in Paranoid Psychosis among the Yoruba Tribe’, in Journal of Mental Science, 501, 1955, pp. 239–66.CrossRefGoogle Scholar The message seems to be: Even a western-trained Yoruba psychiatrist cannot tell for sure.

^{page 230 note 2} There is dicta to the effect that self-defence might be a possible defence to witchcraft- associated homicide: ‘In murder cases a defence founded on witchcraft has always been rejected except in cases when the accused himself has been put in such fear of immediate danger to his own life that the defence of grave provocation has been proved.’ Kortkomba v. The Queen (1952), 54 W.A.C.A. 236. However, until 1968 there had been no case in Nigeria which had upheld the defence. In 1974 the Western State Court of Appeal again considered and rejected the defence of self-defence in connection with an attack upon a supposed witch.

^{page 231 note 1} Aguda, , ‘Mental Abnormality’, p. 265,Google Scholar citing British cases and the West African Court of Appeal case, R. v. Edem Udo Inyang (1946), 12 W.A.C.A. 5. Surely the time has come to abandon the fiction that juries have been, or will ever be, determining insanity in Western Nigerian trial courts. Holding up the norm of a non-existent Nigerian jury only adds irrelevance.

^{page 231 note 2} Milner and Asuni, op. cit. p. 355, fn. 36.

^{page 232 note 1} Marvin Wolfgang in his study of homicide in Philadelphia found only 17 insanity acquittals for 621 offenders, although an additional 3 who committed suicide in custody were later classified insane. At every stage of the criminal justice system the proportion of those found insane increases, and Wolfgang's offenders were ‘those listed in police files as responsible for criminal homicide’, which means that this data came from the earliest stage of the formal process. See Patterns in Criminal Homicide (Philadelphia, 1958), p. 26, fn. 1. The rate of 2·7 per cent acquitted for insanity still seems exceptionally small in comparison to reports from Britain indicating that about 33 per cent of all homicide offenders are declared insane at some stage of the process. The proportion of accused found insane in Western Nigeria was 8 per cent of all those who came to trial. The comparisons of studies using vastly different methods is at best an estimation, however. The bias in favour of women in granting the insanity acquittal may simply be a reflection of the apparently almost universal unwillingness to give the death sentence to women. See Bedau, H., ‘Death Sentences in NewJersey, 1907–1960’, in Rutgers Law Review (New Brunswick), 19, 1964, pp. 1–64,Google Scholar and other works on the death penalty by the same author.

^{page 232 note 2} These figures describe cases which were heard on appeal and had been filed as of 1 January 1973. The Western State Court of Appeal was founded in 1967. Some of the cases in this study would not yet have been heard on appeal or reported, and some earlier cases would have gone directly to the Federal Supreme Court on appeal. There has been a backlog in the reporting of these cases, and the appeal figures are incomplete for both courts. For example, although no official records could be found to confirm this, at least two convictions for murder had recently been overturned by the Federal Supreme Court.

^{page 234 note 1} Seidman, loc. cit. uses several cases of‘witch-murder’ – or homicide in which the accused offered in his defence the sincere belief that he was killing a witch – to argue that the law in this area is unadaptive to the needs of modernisation. Do the present Nigerian courts dodge this issue, as Seidman argues was the practice of the latter-day colonial courts, by sentencing the accused to death and recommending executive clemency? The answer is that they do not– and it could even be argued, I think, that in only those few cases which got to the highest courts of appeal was that ever the rule in pre-independent Nigeria. My guess would be that at the level of the district officer, a finding of insanity did at least occasionally occur, as did a reduction to manslaughter.

Seidman's argument that ‘witch-murderers’ have never been acquitted under the insanity or any other defence is weakened by his principal reliance upon cases from the ios and 1950s which were handed down by British judges (who looked to the Colonial Office for support) in the East African and West African Courts of Appeal, both no longer in existence. While these cases are still technically precedent in Nigeria, no one would today suggest, as Seidman implies they might, that the norm of reasonableness to be applied to Nigerian villagers is the same as the standard for an ‘ordinary Englishman’. Indeed, in the provocation cases this is specifically contradicted: the norm of reasonableness is that of a man in the same standing of life and ‘degree of civilisation’ as the accused. Cf. R. v. Okoro (1942), 16 N.L.R. 63; accord, R. v. Adekanmi (1944), 17 N.L.R. 99; and R. v. Afonja (1955), 15 W.A.C.A. 25.