Authored By: Giwa Bukola Onyeka
Abstract:
This article focuses on persons of unsound mind in Nigeria vulnerable to sexual abuse, due to their limited capacity to consent, the stigma they face and the silence that often surrounds such violations. Although Nigeria has implemented several laws and ratified international instruments recognizing the rights of persons with mental disability. The legal framework remains inadequate in addressing the peculiar challenges of this group. Provisions in the criminal code, penal code, and violence against persons (prohibition) Act offer some protection, but significant lacuna persist regarding effective enforcement. Consequently, many victims are left without meaningful redress while perpetrators exploit these gaps. This paper interrogates the current legal protections available to persons of unsound mind in Nigeria, highlights enforcement challenges and advocates for reforms that reinforce existing laws, harmonize statutory provisions, provide stronger safeguard to ensure that these vulnerable individuals are not left unprotected against sexual abuse.
Keywords; Persons of unsound mind, mental illness, sexual abuse
Introduction:
Every October 10th is marked as world mental health day, a milestone driven by civil society to raise awareness about mental health challenges, combat stigma, and mobilize support for persons with mental health issues. According to the 2019 Global Burden of Disease (GBD) study, mental disorder ranked among the top 10 global disease in terms of prevalence, with an estimated 444 million incident cases and 155 million disability adjusted life years (DALYs) recorded globally.[1] In Nigeria, however, persons with mental disabilities are often downplayed, disregarded, and viewed as burden to the society. They are sometimes left to wander, and subjected to severe stigma and discrimination. Yet, these individuals possess inherent dignity and inalienable rights such as right to life, freedom from discrimination, dignity of the human person and equal protection of the law.[2] These rights are consistently affirmed by the Courts of Law as inherent and cannot be derogated on the basis of mental incapacity.[3] Alarming, despite this protection they are exposed to abuse by unknown perpetrators, underscoring an urgent need for stronger legal protection.
The protection of persons with mental disability in Nigeria has been historically traced back to Lunacy Act of 1958, the country’s earliest mental health legislation. However, this legislation only emphasized on the custody and detention of persons deemed to be” lunatic”[4] reflecting back, it was derogatory to human rights and offered no safeguard against exploitation or sexual abuse. Subsequently the Nigeria criminal laws attempted to address the issue but remains insufficient, for instance Section 221(2) of the Criminal Code Act[5] (applicable in Southern Nigeria) prohibits the canal knowledge of a woman, or girl described as ‘idiot or imbecile”, while section 282 of the Penal Code[6] (applicable in the North) construe rape in terms of Consent but failed to address the peculiar exposure of the mentally disabled persons. The Violence Against Persons (Prohibition) Act[7] marked a more progressive change by expanding the definition of rape and making sexual actions involving people who are incapable of giving consent illegal. Most recently, the Mental Health Act[8] protected the rights and dignity of people with mental health disorders and abolished the outdated Lunacy Act. Although it doesn’t directly address sexual abuse or rape, it upholds and supports current criminal and human rights frameworks meant to safeguard these peculiar people.
In light of this, this essay aims to assess how well Nigeria’s legal system protects persons with mental illness from sexual abuse, point out any shortcomings in its application and enforcement, and suggest changes that would guarantee the complete protection of the rights and dignity of these persons.
RESEARCH METHODOLGY
This Research is a doctrinal approach and uses secondary sources. The current legal framework for the protection of people with mental health issues against sexual abuse in Nigeria is established by examining pertinent statutes, case law, and international agreements. Additionally, reliable online resources like ResearchGate, Google Scholar, and other trustworthy online sources were used to consult. Academic papers, journals, and commentaries.
MAIN BODY
CHAPTER ONE: LEGAL DEFINITION
MENTAL ILLNESS
Mental illness can sometimes be referred to as mental disorder, a health condition that affects one’s mood and thinking.
The World Health Organization defines mental illness as clinically significant disturbance in an individual’s cognition, emotional regulation, or behavior that reflects psychological disorder, and impairment in functioning.[9] In the same vein, mental illness is defined by the American Psychiatric Association (APA) as health conditions involving changes in emotion, thinking, or behavior (or a combination of these), and can be linked to distress or difficulties adjusting to social, professional, or familial activities.[10]
CAUSES OF MENTAL ILLNESS
Mental illness has many different and intricate causes. They consist of;
- Biological elements like hereditary predisposition, chemical imbalance, or brain damage
- Psychological elements such as severe stress, trauma or abuse
- Environmental elements like poverty, lack of social support, or substance (such as drugs and alcohol)
- Sociocultural views which in Nigeria context, frequently links mentally illness to curses, witch craft or spiritual attacks.[11]
Subsequently, for the purpose of research the terms mental illness and mental disorder and disability will be used interchangeably. However, the focus will be on the implication of mental illness in the legal context, more so it relates to safeguarding these individuals against sexual abuse.
UNSOUND MIND
In Nigerian law the concept unsound mind is a person whose mind at the time of his doing or omitting to do an act, is affected by delusion on some specific matter or matters.[12] It is pivotal under the Nigeria criminal justice system both statutory law and judicially interpretation.
Section 28 of the Criminal Code Act[13] “ states that a person is not criminally responsible for an act or omission if at the time of doing the act or omission, he is in such a state of mental disease or natural mental infirmity as to deprive him of the capacity to understand what he is doing, or of the capacity to control his actions, or of the capacity to know that he ought not to do the act or make the omission.”
In Uluebuka V State[14] the court held that whenever the defense of insanity is raised, what the court is to consider is whether the defendant at the time of the commission of an act or making of an omission was in such a state of mental disease or natural mental infirmity as to deprive him of capacity to know that he ought not to do the act or make the omission.
SEXUAL ABUSE
According to the American Psychological Association (2020), sexual abuse is defined as any non-consensual sexual act, wherein offenders may employ force, threats, or exploit individuals who are unable to provide consent.[15] Sexual abuse includes rape, forceful penetration with consent, molestation and exploitation. it is a criminal offence under Section 1 and 3 of the Violence against persons (prohibition) Act.[16]
CHAPTER TWO:
LEGAL FRAMEWORK
LUNANCY ACT OF 1958
This Act was a modification from the Lunacy Ordinance, 1916, it was one of the earliest legislations in Nigeria regulating persons with mental illness. This Act was highly criticized because it failed to protect the rights of people with mental illness as it referred them to as ‘Lunatics” a term considered to be derogatory and problematic. Another basis is that it empowered medical practitioners and magistrate to confine these individuals and how long they should be confined without treatment.[17] It offered limited protection and for the rights and dignity of these persons. This law has since been repealed by the Mental Health Act, 2021.
CRIMINAL CODE ACT 2004 (Applicable in southern Nigeria)
This Act is the framework for criminal liability and contain provision of persons with unsound mind;
- Section 27 there is presumption that everybody is of sound mind until the contrary is proven otherwise
- Section 28 Excludes a person of unsound mind from criminal liability if they are unable to understand the nature or wrongfulness of their act.
This law recognized the rights and vulnerability of persons with unsound mind but failed address or state the protection of these individuals from sexual abuse.
ADMINISTRATION OF CRIMINAL JUSTICE ACT (ACJA), 2015
Although it indirectly contributes to the protection of persons of unsound mind , ensuring that persons with mental incapacity are treated with dignity and preventing repeated trauma during proceeding[18]
VOILENCE AGAINST PERSON (PROHIBITION) ACT, 2015 (VAPP)
This Act is the latest, most wide-ranging legislation against persons, including women, in Nigeria. It is an amalgamation of different bills, which sought to abolish all obsolete laws relating to matters such as rape and assault It aims to improve upon similar provisions on violence as contained in Nigeria’s Criminal and Penal Code.
The provision on rape and penalties also provides that a register of convicted sexual offenders shall be made available to the public. In addition, a court may declare a person who has been convicted of a sexual offence a dangerous sexual offender[19]
This Act provides for mechanisms for reporting, prosecuting and protecting victims although it relies on other legislation such as Mental Health, 2021 to provide additionally protection for mentally ill persons.
THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED)
This is the Grund norm and provides fundamental protection that underpins all other laws relating to a mentally ill persons and the punishment for sexual abuse.
It guarantees the right to life for every individual[20], protects persons from inhumane treatment [21]which include sexual abuse, it reinforces statutory law such as Violence against persons (Prohibition) Act[22] which prescribes punishment for sexual offenders ensuring persons of unsound mind are legally recognized and worthy of protection.
MENTAL HEALTH ACT, 2021
This law repealed the Lunacy law of 1958, providing recent legal framework for care, treatment and protection of persons with mental illness in Nigeria.
- It recognizes the rights and dignity of persons
- Establish mental health authorities to oversee and ensure compliance of the law
- Access to mental health care, rehabilitation, and social support
Although it did not state punishment for unknown perpetrators from sexually abusing persons with mentally illness.
JUDICIAL AUTHORITIES
- In the case of Ogunbayo V state
It is settled that in legal parlance, any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act, is guilty of the offence of rape.[23]
This case does not directly involve mental health, though it highlights the legal recognition of a person’s capacity to consent which is important when considering persons with mental health issues.
- R v INYANG[24]
In this case the court examined the issue of insanity, it clarified that for a defendant to claim a defense of insanity it must be proven that they are suffering from mental illness.
In this case, it didn’t address the legal protections of the mentally ill persons but it highlights the issue of consent and capacity of these individuals.
Although there isn’t any recent Nigerian case law directly addressing sexual abuse of persons with mental health challenges, though the legal principles established in cases involving sexual offences and capacity are applicable. Courts have recognized that individuals with impaired capacity may not provide valid consent, and such cases require careful judicial scrutiny to protect the rights of these vulnerable individuals.
CRITICAL ANALYSIS
Nigeria Legal framework contains several loop holes and has constitutional lacunae. It has failed to address the realities of sexual abuse against persons suffering from mental illness. it has become a constant daily affair that these persons are exposed to sexual exploitation by unknown perpetrators and given their impaired capacity they are unable to give consent and yet law remains silent.
On papers, Nigeria laws have strong legal protection on fundamental and constitution rights for these people because lot of case laws and statutory laws such as Mental Health Act, 2021which states for the protections and care for persons who are mentally ill.
But in reality, Cases of sexual abuse against mentally ill persons are rarely taken into legal action or rather are being turned blind eyes because families or the society often hide this abuse due to stigma, shame or lack of faith in the justice system. Also, even if these cases are been reported the Nigeria legal system has so failed that legal officers such as the police won’t carry out proper investigations and the medical teams fails to carry out proper medications on these individuals.
Unlike Nigeria, several foreign laws have created a clear statutory provision and created a strong judicial precedent that addresses the exposure of mentally ill persons to sexual abuse.
In the United Kingdom, Sexual Offence Act[25] provides clear provisions that any person who engages in sexual activity with a mentally ill person commits an offence. In support the judicial precedent in R V C[26] states in section 30 [27] The house of the Lord held any sexual activity with a person of mental disorder would be unable to refuse to sexual touching because of or for a reason related to a mental disorder if he/she lacks the capacity to choose.
In contrast with the Nigeria legal framework, The Employment Equity directive prohibits direct and indirect discrimination and sexual harassments of persons with mental disability ensuring protection in the field of employment[28].
RECENT DEVELOPMENTS
The most important development in Nigeria on this article is the enactment of the Mental Health Act, 2021, which came into force in January 2023. The Act repealed the Lunacy Act of 1958 and introduced the rights and protection of people with mental health conditions. It guarantees rights to dignity, rights to standard treatments, rights to protection, rights to confidentiality, right to consent and voluntary admission. Section 55[29] prohibits any sexual relationship with a patient by staff or any mental health worker, prescribing sanctions and imprisonments against offenders.
However, there’s no laws stating about those ramming about the streets and manhandle carelessly and often assaulted sexually leaving these persons without adequate legal protection.
CHAPTER 3: SUGGESTION/ WAY FORWARD
The National Mental Health Act 2021 should be amended to implement and expressly emphasize on sexual abuse on mentally ill persons whether, in the health care facilities, or on the streets. Additionally other laws like the Constitution of the Federal Republic of Nigeria 1999 (as amended) 2023 and the Violence Against Persons (Prohibition)Act 2015 should be expanded to vividly classify mental ill persons to be entitled to special legal protection.
Nigeria Judiciary system should develop laws that interprets existing sexual abuse and rape cases in a manner that will widely accommodate and recognize mentally ill persons based on consent and capacity. And also incorporate foreign case that will fill up the gaps until new legislation is made.
In addition, media reports, NGO’s groups, social contents, advocacy groups have a crucial role in raising awareness in seeking justice and for better enforcements of protecting the rights of these individuals.
CONCLUSION
This article has critically examined the insufficiency in Nigeria legal framework in providing protection for those who are of unsound mind from sexual abuse. It showed that the Mental Health Act of 2021only provides for the rights of these peculiar persons, and explicitly omits provisions addressing sexual abuse, leaving these provisions to other laws such as violence against person (prohibition) act 2015. The absence of Judicial interpretation and safe guards for mentally ill persons especially the ones roaming about the streets. To move forward, Nigeria must strengthen its legislation ensuring for a strong protection for the dignity of these persons.
REFERNCE(S):
PRIMARY SOURCES
Case laws
Uzoukwu v. Ezeonu II (1991) 6NWLR (Pt. 200) 708 (CA)
Benson Ihonre v The State (1987) NWLR (Pt 67) 778
Uluebeka v State (2000) 7 NWLR (Pt 665) 404 (SC).
Oludotun Ogunbayo v The State (SC. 272/2005) [2007] NGSC 165 (Supreme Court of Nigeria, 8 March 2007)
R v Inyang (1946) 12 WACA 5
Statutes and statutory instruments
The Criminal Code Act (Southern states) 2004
Constitution of the Federal Republic of Nigeria 1999 (as amended in 2023).
Penal Code Act (Northern States) (Cap P3 LFN 2004).
Mental Health Act 2021
Violence Against Persons (Prohibition) Act 2015 (Nigeria).
Lunacy Act 1958 (Nigeria).
Administration of Criminal Justice Act 2015, Laws of the Federation of Nigeria.
Eu Legislations
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16.
SECONDARY SOURCES
Journal Article
Fan, Y., Fan, A., Yang, Z. et al., ‘Global burden of mental disorders in 204 countries and territories, 1990-2021: results from the global burden of disease study 2021’. (2025)25 BMC Psychiatry, 486 https://doi.org/10.1186/s12888-025-06932-y accessed 23 august 2025
A Adeyemi, ‘The Appraisal of the Legal Framework on Mental Health in Nigeria’ (Nigerian Journal of Law and Policy, 2022) https://njlp.org.ng/articles/appraisal-legal-framework-mental-health-nigeria accessed 23 August 2025.
World Health Organization, ‘Mental Disorders’ (Fact sheet, 8 June 2022) https://www.who.int/news-room/fact-sheets/detail/mental-disorders accessed 23 August 2025.
American Psychiatric Association, ‘What is Mental Illness?’ (2023) https://www.psychiatry.org/patients-families/what-is-mental-illness accessed 23 August 2025.
Idem U.J, ‘Criminal Responsibility and the Defense of Insanity, Insane Delusion and Irresistible Impulse in Nigeria’ (2018) 4(2) Donnish Journal of Law and Conflict Resolution 11.
George O.M, ‘Goal setting skill as a Pernacea to sexual abuse: A Theoretical review’ (2024) 7(1) Management, Skills and Techniques https://journals.lcu.edu.ng/index.php/mst1/article/view/1325 accessed 24 August 2025.
Oddsen W and Bell M, ‘The employment equality directive and supporting people with psychosocial disabilities in the workplace – A legal analysis of the situation in the EU Member States’ (European Commission, Directorate-General for Justice and Consumers, Publications Office, 2016) https://data.europa.eu/doi/10.2838/63412 accessed 25 August 2025.
[1] Fan, Y., Fan, A., Yang, Z. et al. Global burden of mental disorders in 204 countries and territories, 1990-2021: results from the global burden of disease study 2021. BMC Psychiatry 25, 486 (2025). https://doi.org/10.1186/s12888-025-06932-y
[2] Section 33, 34 and 42 of the 1999 Constitution of the Federal Republic of Nigeria (As amended) 2023
[3] Uzoukwu v. Ezeonu II (1991) 6NWLR (Pt. 200) 708 (CA)
[4] The appraisal of the legal frame work on mental health in Nigeria
[5] 2004
[6] 1990
[7] 2015
[8] 2021
[9]World Health Organization, ‘Mental Disorders’ (Fact sheet, 8 June 2022) WHO <https://www.who.int/news-room/fact-sheets/detail/mental-disorders> accessed 23 August 2025.
[10] American Psychiatric Association, ‘What is Mental Illness?’ (APA, 2023) https://www.psychiatry.org/patients-families/what-is-mental-illness accessed 23 August 2025.
[11] Benson Ihonre v the state (1987) NWLR (Pt.67) 778:
[12] Udosen Jacob Idem, ‘Criminal Responsibility and the Defense of Insanity, Insane Delusion and Irresistible Impulse in Nigeria’ (2018) 4(2) Donnish Journal of Law and Conflict Resolution 11.
[13] 1916
[14] (1998) 12 NWLR Pt. 579
[15] Olatunbosun Michael George, ‘Goal setting skill as a Pernacea to sexual abuse: A Theoretical review ‘ (2024) 7 (1) Management, Skills and Techniques https://journals.lcu.edu.ng/index.php/mst1/article/view/1325 accessed 24 August 2025.
[16] 2015
[17] Section 13, Lunacy Act (1958) Cap (112)
[18] Section 278
[19] Violence against persons(prohibition) Act 2015, sec 1,2.
[20] sec 33
[21] Sec 34
[22] 2015
[23] Section 357 of the criminal code C38 Laws of federation, 2004
[24] (1946) 12 WACA
[25] 2003, sec 30-36
[26] (2009) UKHL 42
[27] Sexual offence Act 2003
[28] W Oddsen and M Bell, The employment equality directive and supporting people with psychosocial disabilities in the workplace – A legal analysis of the situation in the EU Member States (European Commission, Directorate-General for Justice and Consumers, Publications Office, 2016) https://data.europa.eu/doi/10.2838/63412 accessed 25 August 2025.
[29] Mental Health Act 2021
