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compulsion

Q961. There are times when a person may be forced or compelled, against his will, to do an act which ordinarily will amount to a criminal act or omission. For instance, armed robbers get into an estate, take and hold the gateman under gun point and lead and ask him to knock at his employer’s door and get him to open his house. He does so and the employer opens and the armed robbers get in to rob or even kill somebody in the process. Will the gateman be charged as one who participated in the robbery?

No. There is a general defence to criminal charge of offence provided under Section 32 of the CCA that provides that where a person is compelled under the threat of death or grievous bodily harm to commit an act or make an omission in order to save himself the threatened harm, he will be excused and not be held liable as the element of criminal intention (motive) or what is called mens rea which, by the provision of section 24 of the CCA, must be present and established before one can be held to be criminally liable, is absent

Q962. Is it only when the threat is one of death or grievous bodily harm that the defence of compulsion under the said Section 32 of CCA will be available? In other words, if a woman, for example, is faced with the threat of her brand new car being set on fire except she helps some armed and vicious looking men in doing one criminal act or the other, can this defence of compulsion not avail her?

No, it will not. This particular defence avails only an accused who faced and acted in the face of the threat of death or grievous bodily harm.

Q963. Will it make any difference that the threat of death or bodily harm is not immediate, but threatened to be done some hours or days or weeks later after the armed man would have found out that the accused did not carry out the criminal act or omission which they had asked him to do?

Yes, it would make a world of a difference as the defence of compulsion by threat must be of immediate threat there and then. This is because it is expected that an accused who was threatened with a of a future threat should be able to take steps within the time given him to see to it that commission of that crime is averted, including reporting to law enforcement agents or seeking the help of others to thwart the commission of that crime.

Q964. Will it be enough for the prosecution to just show that the accused is a member of an unlawful association by whose rule he was forced, as should have been known by him, to commit the offence?

No. the prosecution must not only prove that the association is an unlawful one, it must also establish that by the very nature of that association it is such that any Reasonable Man in the accused’s position should have known and foreseen that the association was of the kind and nature that it ought to be known by him that it is possible that a date would come when his membership of that association would subject him to that kind of compulsion.

Q965. If a man receives a telephone call by which he is asked to kill some other person right there with him otherwise his son who had gone to school would be kidnapped and killed, goes ahead, for the love he has for his only child, to kill the person as commanded by the Caller. Can such an accused person find defence cover under Section 32 of CCA?

No, he will not. Firstly, for the defence provided under Section 32 to avail any accused person, the person making the threat must be present with the accused and have the capacity to make good his threat. So, a threat by a telephone call does not fall within what the section contemplates. Secondly, the threat must be threat to the accused, not to another person, even if that person is his only child. Thirdly, the defence of Section 32 of the CCA does not include the commission of any offence punishable by death or grievous bodily harm to another. The law would not permit that you kill another person just so that you live.

Q966. What will be the position of the law in a case where the accused is the person who deliberately took steps that put him in a situation where he becomes liable to be put under threat to his life and gets compelled to commit the crime he seeks to defend. For instance, where an under graduate student, knowing full well that members of a certain Secret Cult Organization in the Campus are vile and violent, goes ahead to join, and who later, as is their practice, is compelled to do some criminal act of assaulting and physically mal-handling of fellow student. Can he, if charged for that offence successfully seek protection under Section 32 of the CCA?

No, he cannot. That defence is not available to an accused who, by entering an unlawful association or conspiracy to commit crime, and thereby rendered himself liable to be so threatened and compelled.