Leigh Buchanan Bienen: Works

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Title: The Determination of Criminal Insanity in Western Nigeria
: Leigh Bienen
Publisher: The Journal of Modern African Studies
Issue: Volume 14, No. 2, pp. 219-245
Description: This article grew out of a more detailed study of all tried cases of homicide in Western Nigeria from 1966 to I972. While reading more than 100 court transcripts and trial opinions, I was struck by what seemed an inordinately large number of accused with symptoms which westerner associate with mental or emotional illness. I was also conscious of judges being forced to apply an awkward, and at best difficult, standard for the determination of criminal insanity with sparse direct evidence and, in many cases, without the help of expert testimony. The statutory standard is a variant of the so-called ‘M’Naghten rule’ of British jurisprudence which is operative in most of the United States. The procedure surrounding the presentation of the defence of insanity, the calling for a examination by a psychiatrist, the submission of expert testimony, are also the same in Western Nigeria as in most American jurisdictions although there are significant differences in the manner in which the law and rules of procedure are applied, the use and exclusion of evidence, and particularly the treatment of expert psychiatric evidence.

The results were often clearly not the same as they would have been in similar conditions in the United States. Was this primarily the result of temporary, circumstantial differences? For example, in Western Nigeria, only one psychiatrist was available to present expert testimony in all criminal cases. Or, were the differences due to the fact that the received British law had been adapted, modified, or even ignored in the determination of criminal insanity? Perhaps the British definition of madness or social deviance was too culturally determined to be acceptable to the judges in Western Nigeria?

While the application of the M’Naghten standard rarely produced outrageous results, there were enough visible differences to raise these questions. And while the court records were sometimes sparse, details are presented here about the application of the defence in specific cases and the court procedures involved. While it is clear that other judgements would have been given under a jurisdiction governed by the U.S. Durham rules, or by the insanity standard of the American Law Institute’s model penal code, I would argue that procedural differences, particularly the difficulty of preserving and presenting evidence in a society where record-keeping is not a matter of course, are more important than any differences in the statement of the law.

Given that the rules are completely foreign, in an area of law where cultural differences are extremely important, they function far better than might be expected. The ‘right/wrong’ test is indefinite enough, apparently, to encompass any sort of social awareness, whether it be of traditional taboos, the written law, or some more general notion of acceptability. While the adoption of the M’Naghten standard may have been unwitting—this was written into the West Nigerian Criminal Code in I916 simply because it prevailed in Britain at the time—perhaps its great virtue is that it is amorphous enough to accommodate widely divergent circumstances…




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