Introduction
Insanity, this defense is found on the premise that the accused person failed to form the requisite mens rea at the time of committing the offence due to the disease of mind which affecting his or her understanding. Despite the law under section 12, presume that a person is actual awareness of is act or omission unless the evidence proves otherwise. When the presumption rebutted the defense of insanity can operate as per section 13 of the penal code.
For successfully raising the defense one must establish that he has been affected by disease of mind at the time of committing an act or making the omission and such disease made him fail to know what he was doing and he should have no control of the act or omission due to the disease of mind. The famous and celebrated case of R v M”naghten ,which establish the rules enshrined in the section 13 of the penal code.
In case of Nyingo Suwatu v R, the appellant killed the inspector of police under delusions that he was plotting his death. He then surrendered to police and stated that “I have come here to be killed because they wanted my head. At the trial a psychiatrist gave evidence that the accused would know that what he was doing but not that it was wrong. The trial judge accepted that the accused was at the material time insane in medical sense; however, accused statement to the police showed that he knew what he was done was wrong and therefore convicted him with murder.
Provocation refers to the action in heat of the moment or action that is the product of desperation or intolerable circumstances. The provision of section of the penal code provides for the defense of provocation s per section 202 of the law.
The case of Katemi Ndaki v R, the appellant, was charged with and convicted of murder contrary to section 196 of the penal code and sentenced to death. Apart from the evidence of PW 1 who asserted to have identified the appellant at the scene of crime there was a repudiated confession of the appellant saying that he killed the deceased in the heat of passion caused by sudden provocation by the accused. The trial court did not address itself on the issue of provocation raised in the confession. It was held that the omission to address the issue of provocation raises doubt as to whether an ordinary person of the community to which the appellant lives would not have been provoked by deceased’s outlandish behavior. The doubt is resolved in the favor of the appellant.
Basing on the above discussion, the two defenses that are the defense of insanity and defense of provocation can be distinguished as follows: -
In order for defense of insanity to stand the accused person must establish that he has been affected by disease of mind at the time of committing an act or making the omission and such disease made him fail to know what he was doing and he should have no control of the act or omission due to the disease of mind, WHILE, for a defense of provocation to stand the accused person must establish that, he acted out of heat of passion which is product of desperation or intolerable circumstances, which leads to loss of self-control and eventually there was no room for an accused person to cool down his temper .
Once the defense of insanity is raised normally some peculiar steps are taken by the court proving the insanity of the accused person and such steps are provided under section 216 of the criminal procedure Act , Where among other things the court may inquire into the fact of the unsoundness of mind of an accused person the court may order the accused to be detained in mental hospital for medical examination, and such medical report shall be tendered by medical officer within forty-two days of such detention or submission , WHILE these peculiar steps are not applied once the defense of provocation is raised.
Moreover, once defense of insanity is successfully raised it may be a good ground to acquit the accused person from the charges, WHILE once the defense of provocation is successful raised it may reduce the charges of an accused person from murder to manslaughter however It is not every provocation that will reduce murder to manslaughter. To have that effect, the provocation must be such as temporarily to deprive the person provoked of the power of self-control, as the result of which he commits the act which causes death.
