Adjudicating mentally disordered offenders in Ghana: The criminal and mental health legislations

The involvement of mentally disordered offenders (MDOs) in the criminal justice system (CJS) is currently a major public health concern. This has culminated in several empirical researches over the years, with a particular focus on addressing the problem. The present study examines the criminal and the mental health legislations available to offenders raising fitness to stand trial issues, as well as those pleading insanity at the time of the offense (insanity defense) in Ghana. The legislations are examined within a framework of reducing the overrepresentation of MDOs in the CJS. In doing so, comparisons are made to similar legislations in other commonwealth jurisdictions, when necessary. Regarding fitness to stand trial, it is evident that the Ghanaian legislation does not contain discrete fitness indicators, relative to, for instance, Canada. Yet, it is interesting that the terminologies 'unsound mind' and 'incapable of making a defence' used in the proviso convey similar meaning and requirements to those used in other jurisdictions. The insanity defense standard, on the other hand, is also heavily influenced by the M'Naughton Rules in England. The defense consists of two separate cognitive tests, each of which can result in an acquittal. One of the tests strictly emphasizes knowledge of the nature and consequences of the act while knowledge of the wrongness of the criminal act is implied in the other. However, none of the tests takes into consideration uncontrollable impulse arising from mental disorder. The study proposes some revisions and amendments to the insanity legislation in its current formulation. Recommendations are also offered for critical areas that warrant research attention in relation to MDOs in Ghana, and in Africa as a whole.