Section 57 and mens rea : What is constitutional about it? – Supreme Court Justice quizzes counsel

A seven-member panel of the Supreme Court on Tuesday, June 14, 2022, sat on a number of cases including one seeking the decriminalization of the offence of attempted suicide as captured under Section 57 of the Criminal Offences Act, 1960 (Act 29).

The panel presided over by the Chief Justice, His Lordship Kwasi Anin Yeboah sought elucidations and elaborations on the applicant’s plea relative to the motion.

Immediately after the counsel's introduction, the president of the court asked the counsel for the plaintifff, “ Are you aware that your client has discussed the matter before this court in the media? Specifically TV3. Are you aware?"

Further to the above, the Lord Justices inquired whether the plaintiff's prayer per the motion is based on the findings of any research to warrant its decision.

“Have you run any research? Has it been published? You want us to form a decision based on that?”

It was after this one, that a member of the panel, Yonni Kulendi JSC stepped in and asked the plaintiff's counsel, “Section 57 of Act 29 and mens rea. What is constitutional about it?” “Is there no program for such people to be taken to the mental home when detected in court?”

The plaintiff, Christian Malm-Hesse, a private legal practitioner has filed a writ at the Supreme Court, invoking the original jurisdiction of the apex court of the land to remove from the country’s criminal code, the criminal and other offences Act (1960) Act 29, the offence of attempted suicide.

He contends that section 57 (2) of the criminal and other offences Act (1960) Act 29 which provides that “whoever attempts to commit suicide shall be guilty of a misdemeanour”, is an affront to mental health, its associated challenges and efforts of medical practitioners to deal with same.

Reliefs sought

According to the writ dated 8 May 2021, at the law offices of K-archy and company legal and management consultants, the plaintiff (Christian Malm-Hesse) is seeking five reliefs from the Supreme Court.

Firstly, “a declaration that there is no “mens rea” formed with respect to the committal of the inchoate offence of “attempt to commit suicide” contrary to section 57 (2) of the Criminal Offences Act, 1960 ACT 29 as amended and to that extent be expunged from the said Act”.

Secondly, the plaintiff is seeking a “declaration that section 57 (2) of the Criminal Offences Act, 1960 ACT 29 as amended is inconsistent with Articles 15 (1) (2) (a) and (b) of the 1992 Constitution of the Republic of Ghana and to that extent be struck out.”

The third relief is a “declaration that section 57 (2) of the Criminal Offences Act, 1960 ACT 29 as amended is inconsistent with Articles 17(1) (2) and (3) of the 1992 Constitution of the Republic of Ghana and to that extent be struck out.

“A declaration that section 57 (2) of the Criminal Offences Act, 1960 ACT 29 as amended is inconsistent with Articles 29 (4) of the 1992 Constitution of the Republic of Ghana and to that extent be struck out” is the fourth relief of the plaintiff.

Lastly, Malm-Hesse is praying the Supreme Court to declare that “section 57 (2) of the Criminal Offences Act, 1960 ACT 29 as amended is inconsistent with sections 42 (1) (a) (b) and (2), 54 A (1), 55 (1) and (2) and 57 of Mental Health Act 2012 ACT 846 and to that extent be struck out”.

The Supreme Court has meanwhile adjourned the case to July 20, 2022, and tasked the applicant to endeavour to present their research on their motion in court.