Akinola Akintayo, University of Lagos

There is a great deal of evidence showing a link between drug use and abuse and a range of violent crimes. As a result, the issue of drug or alcohol use often arises in criminal cases of abuse and violent crimes.

A recent prominent case in Nigeria involving an undergraduate student and the chief executive officer of a television station raised debates about the relationship between the two.

Following her arrest, the 21-year-old student confessed to killing the executive in self defence. She admitted taking drugs and alcohol with the deceased before it happened.

A few weeks later she recanted this story and said she knew nothing about the death of the deceased.

In Nigeria, the steady rise in the consumption of drugs and alcohol has been linked with crime, violence and public disorder.

The recent case invites a review of what the law says in Nigeria.

The law is that voluntary intoxication, except where it induces insanity or renders the accused incapable of forming the necessary intent for the crime, is no defence against criminal liability.

This has been restated by the courts in numerous cases. In the case of Ahmed v State (1999) 7 NWLR (Pt.612) 641, the accused had stabbed a person to death while he was drunk. During his trial for the murder, he raised the defence of intoxication, among other defences. In its judgement, the Supreme Court of Nigeria stated that:

Intoxication per se is not a defence. To be a defence, it must be shown by the defendant that the intoxication was not self-induced or that the extent of it rendered him at the time of the act or omission insane temporarily or otherwise, that is, he did not know what he was doing.

Defence of intoxication under the law

Thus, generally speaking, intoxication, whatever the source, is not a defence against criminal charges. This is made clear by the provisions of Section 29 (1) of the Nigerian Criminal Code Act (federal statute). The section says:

intoxication shall not constitute a defence to any criminal charge.

Intoxication is defined under the criminal code as

a state produced by narcotics or drugs.

Nevertheless, the law outlines three circumstances under which intoxication could be a defence. They are:

• if intoxication is caused by the malicious or negligent act(s) of a third party without the consent of the accused

• where the accused was, as a result of intoxication, temporarily or permanently insane at the time of the commission of the offence

• if the intoxication deprived the accused person of the ability to form requisite specific intention to commit the offence in question.

In applying this leg of the defence, a distinction is often drawn between basic intent and specific intent. Specific intent refers to intent required in result crimes while basic intent refers to intent required in crimes where a more general intention will suffice. Although controversial and difficult to apply in practice, this distinction continues to be the basis for the application of that leg of the defence.

The Lagos State Criminal Code Law 2011 (the state statute) has removed intoxication-induced insanity from its provisions.

It was replaced by the defence of:

by reason of intoxication at the time of the alleged criminal act or omission, the accused did not know what he or she was doing or did not know that what he or she was doing was wrong.

This is similar to the intoxication-induced insanity exception under the federal statute. The only difference is that the provisions of the Lagos State Code require that:

• the intoxication be involuntary in all circumstances i.e. it must be as a result of the malicious or negligent acts of third parties or as a result of the mistake of the accused person.

But the accused need not have become insane.

Under the Federal Code, however, it is immaterial whether the intoxication is voluntary or involuntary.

Effect of a retraction

From the facts of the recent case that have been made available, indications are that the intoxication in that case was voluntary.

The issue of intoxication-induced insanity or incapacity also does not arise. The Lagos State version of the intoxication-induced incapacity is also not available to the accused because the Lagos State Code requires the intoxication to be involuntary in all circumstances.

Thus, the only window open to the accused from the facts of the case is the defence that the intoxication deprived her of the capacity to form the required specific intention to commit the offence.

The first confession is amenable to this defence. This is in addition to the issue of self-defence expressly raised by the accused. For the defence of intoxication to avail the accused person under this heading, all the surrounding circumstances – what the accused person did before, during and after the offence – are relevant facts that will go to determining the veracity of the defence.

On the claim of self-defence, a number of relevant considerations would come into play. These include:

• the severity of attack, and whether it causes reasonable fear of death or grievous bodily harm

• if there was no other way to avoid the deadly attack

• the accused not being the initiator of the attack to cause death or grievous bodily harm

• the requirement that the attack must be continuing at the time the deceased was killed by the accused

• the use of force that is reasonable and proportionate to the form of the attack against the accused person.

The fact that the accused retracted her confession is of little moment. The law is that a retracted confession is admissible and can sustain the conviction of an accused if there is evidence that corroborates the retracted confession.

Consequently, if the investigation reveals other facts and evidence that confirms or corroborates the veracity of the retracted confession, the retracted confession can form the basis upon which to convict the accused person.

Courts will only consider the retraction when determining the weight to be attached to the confession. Existing case law is in support of the above statement of the law.

In Oseni v State (2017) LPELR 42770 (CA), the Nigerian Court of Appeal re-echoes this position and states that the law is settled that an accused person can be convicted on a retracted confessional statement. All that the court is required to do in such cases is to test the truthfulness or veracity of the confession with other evidence outside the retracted confession.

The second confession seeks to totally distance the accused person from the crime. If she has nothing to do with the murder, this is all well and good. But if she is in some way complicit in the murder, and is found to have been so by the investigating team, she will face a tough time in court.

Akinola Akintayo, Senior Lecturer and Legal Consultant, University of Lagos

This article is republished from The Conversation under a Creative Commons license. Read the original article.