General Defenses:

Defenses for criminal liability are circumstances that relieve an accused from conviction of guilt and its consequent penalty. These circumstances exempt a criminal from criminal liability or entitle him/her to a reduced punishment.


Defenses for criminal liability are incorporated in criminal law in different ways. Some are clearly provided by the law as defenses while others are not. The latter categories are special defenses.  They are defenses that apply in particular crime. Special defenses could be non-fulfillment of essential conditions of the crimes provided in the special part of the Criminal Code. According to article 665 of the Criminal Code, for example, the crime of theft is not complete unless the thing abstracted belongs to somebody else. If the accused abstracted his/her property, he/she can raise this fact as a defense. Special defenses could also be defenses provided for particular crime. For example, Article. 640 of the Criminal Code prohibit obscene publications. Article 642 provides defenses for the crime of obscene publication. As a result, artistic, literary or scientific works or objects are not considered obscene or indecent.


The other categories of defenses are those expressly provided by law as defense. They are general defenses. They are applicable to all crimes. They are excuses and justifications. The Criminal Code of 2005 does not follow this dichotomy. However, we follow this classification in this module for convenient understanding.


Excuses are defenses that arise because the defendant is not blameworthy for having acted in a way that would otherwise be criminal. Excuses are the defects and unusual conditions of the criminal during the commission of the crime. Thus, if persons commit crime unwillingly, without understanding the nature and consequences of their act, with mistaken belief of facts or law, the law excuses them from criminal liability. In the cases of the excuses, the focus is on the individual criminal rather than on the crime committed.


Defenses that arise when the defendant has acted in a way that the law does not seek to prevent are called justification defenses. In short they can be called “justifications”.  In cases of justifications, there are preliminary conditions that enable the doer of the act to take necessary and proportionate action. Thus, when there is an attack on legally protected rights, the steps taken to reverse the attack is justifiable act. Similarly, if the persons found themselves in imminent and serious danger and their only choice to avoid this situation is by committing a crime, their act is justifiable if they have chosen the lesser harm. In justifications, the focus is on the act rather than on the criminal. The society encourages those acts. Justifications include acts required or authorized by law, legitimate defense, necessity and professional duty.



Justification for Defences:


Law reflects the value of the society. It punishes persons blamed for committing harmful act against the society. Nevertheless, sometimes the society does not blame the perpetrator of an act that has caused harm to it when that act is committed in certain circumstances. The circumstances in which the doer of an harmful act will not be blamed are provided by the criminal law as defense for criminal liability. The basic reason for the existence of the defense is that it is not just to hold persons guilty for a crime for which the society does not blame them as a criminal.

It is the basic principle of criminal law that there is no crime unless all its elements are fulfilled. Article 23(2) of the Criminal Code provides that a crime is only completed when all its legal, material and moral ingredients are present. The absence of one of these ingredients necessarily implies the absence of crime. If persons commit a crime under the circumstances that provide them with defenses, one of the ingredients of the crime is lacking. As a result, there is no crime committed. For example, homicide is a crime. A person commits homicide when he/she kills a criminal who has been sentenced to death penalty. Yet, there is no crime of homicide as executing death penalty is a lawful act. Thus, justifications are defenses for criminal liability. In justifications, the legal ingredient of the crime is not present. Similarly, the act is short of moral element when irresponsible persons commit it. Consequently, irresponsibility is an excuse. Thus, where either the legal or the moral element is not present, it is not legally acceptable to punish persons for their deeds.



Burden of Proof in Cases of Defenses:



The general rule is that it is the duty of the prosecution to prove the accused’s guilt and if at the end of and on the whole of the case, there is a reasonable doubt created by the evidence, given by either the prosecution or the defence, as to whether the accused had committed the crime or not, the accused is entitled to acquittal on the ground of benefit of doubt (Woolmington v. D.P.P., 1935 A.C. 462). However, “the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always are good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go, but an innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then breakdown and loose credibility with the community. If unmerited acquittals become general, they tend to lead to cynical disregard of the law, and this in turn , leads to public demand for harsher legal presumptions against indicted ‘person’and more severe punishment of those who have found guilty.”(Per Mr. Justice Krishna Iyer)


But the burden of proving the existence of circumstances bringing the case of the accused within any of the general exception in the criminal Code, or within any special exception or proviso contained in any part of the Code, or in any law defining the crime is upon him, and the court of shall presume the absence of such circumstances. It means if an accused pleads defence within the meaning of ‘excusable’ or ‘justifiable’ grounds of defence, there is a presumption against him and the burden to rebut that presumption is on him. This does not mean that the accused must lead evidence. Circumstance which would bring the case of an accused within any of the general defences may be proved from the evidence given for the prosecution or otherwise found on the record. Where an accused pleads a defence but the evidence given in support of such plea fails to satisfy the court affirmatively of the existence of circumstance bringing the case within the general exception pleaded, the accused is still entitled to be acquitted if upon a consideration of the evidence as the whole a reasonable doubt is created in the mind of the court, whether the accused is or is not entitled to the benefit of the said exception. If it is apparent from the evidence on the record, whether produced by the prosecution or by the defence, that a general defence would apply then the presumption is removed and it is open to the court to consider whether the evidence satisfactorily shows that the accused is entitled to the benefit of the general defence.


The principles enunciated in the provisions relating to defences to criminal liability are in fact rules of evidence carrying either conclusive or rebuttable presumptions. They deal with the circumstances which preclude the existence of mens rea. They are, therefore, enumeration of the circumstances that are incompatible with the existence of mens rea. Huda calls these principles “conditions non-imputability”, and Kenny calls them “conditions of exemption from criminal liability”. If the existence of facts or circumstances bringing the case within any of the exceptions is proved, it negatives the existence of mens rea necessary to constitute the crime and thereby furnishes a ground for exemption from criminal liability.



Criminal Responsibility and Irresponsibility



Responsibility is a person’s mental fitness to answer in a court for his/her action. Persons are criminally liable only if they are responsible for their acts. Thus, the court should not punish the criminals unless it finds them responsible for their acts. Therefore, to determine the guilt of persons it is necessary to ascertain their responsibility. Responsibility or irresponsibility is concerned with the criminals’ awareness and their capabilities to control their action. If the criminal do not know the nature and consequences of their act or if they cannot control their acts despite their awareness, they should not be responsible for the result of their acts. Therefore, before ascertaining that the criminals have committed the crime intentionally or by negligence, it is necessary to assure the responsibility or irresponsibility of the criminals. Irresponsibility may arise in three cases. With regards to adults, it may arise from insanity or intoxication, and with regards to infants, it may arise from their immaturity.


  • Responsibility is Presumed By the Court: Generally, when a person is accused of a crime his/her responsibility is presumed by the Court. The prosecution need not prove it. This means that of  the important things necessary to make a person liable for punishment within the meaning of Art.49/1 are established the in the following way:


  1. The proof that the act was done by the accused---It is the burden of the prosecutor.
  2. The fact that the accused is responsible for his acts—This is presumed by the Court.


However, the question of irresponsibility arises in any of the following two situations:


  • When the accused invokes it, particularly, during the preliminary objections as per Art. 130/2/g of the Criminal Procedure Code, on the first day of the criminal Proceeding.
  • When the Court is doubtful about the mental condition of the accused due to partial or complete deprivation of mental faculties. The Court may entertain such a doubt at any stage of the trail from the conduct of the accused on the trial.

Once the ‘question’ arises it becomes necessary to decide the facts in the light of Arts. 48 and 49. Then it becomes the burden of the defence to prove the accused is irresponsibility beyond reasonable doubt. Then the burden of the prosecution is only to raise a reasonable doubt in the mind of the Court that the accused is responsible and deserves punishment.



1.1. Absolute Irresponsibility: Art. 48



According to Art. 23 (3), a criminal offense is not punishable unless the accused is found guilty. Moreover, no person is liable to punishment unless he is found responsible for his acts (Art. 48). Rather the fulfillment of the requirement as to responsibility is a condition precedent to the fulfillment of the requirement as to guilt. This is to mean that no person may be convicted of an offence unless, at the time of commission, he was not irresponsible for his acts. In other words, before a court can decide whether the accused acted intentionally or negligently, it must satisfy itself that the accused was not incapable of so acting.


On the other hand, as there is consensus about the fact that insane persons cannot commit punishable crimes; the problem of defining criminal responsibility remained the most controversial one.  The question as to who is responsible person is not yet settled for it involves numerous extra-legal elements. Philosophers, lawyers and physicians have done their best to lay down the criteria for responsibility that could have been utilized across all disciplines. Spiritualists and positivists as well have got different opinions as to who responsible is. The former defined responsibility in terms of free will while the latter thought in terms of determination through factors such as heredity, education, geographical conditions, and the like. This made the effort exerted to reach an entirely complete and satisfactory definition of responsibility a futile exercise.  Thus, more that could be done was to identify certain signs or symptoms, which, if present in a person, should prohibit his being regarded as responsible for his acts. The basis or sources of many of these signs and symptoms were some celebrated common law cases that involved a defense of insanity. Accordingly different tests or rules were developed along each case that aimed at determining irresponsibility. In general responsibility could not be defined in a positive, but only in a negative manner, and this is why most codes including the Ethiopian Criminal Code (2005) do not describe responsible but irresponsible persons.





Insanity is a complete defense to a criminal charge. It is based on the assumption that one who is insane has no mind and hence cannot have the necessary mens rea to commit a crime.


Being deprived of free will, an insane person is placed in an even worse condition than a child, because the latter can at least control his will and regulate his conduct, whereas the former cannot. Moreover, the act of an insane man, being unintentional and involuntary, no punishment can deter it. At the same time, people are to be protected from being attacked by maniacs and accordingly, a provision has been made in many jurisdictions for the detention and care of insane persons. (Gaur, K D., Criminal Law, Cases and Materials, 4th ed., Butterworths, 2005, New Delhi, pp. 115-127)


Insanity, according to medical science, is a disease of the mind, which impairs the mental faculty of man. In law, insanity means a disease of mind, which impairs the cognitive faculty, namely, the reasoning capacity of a man to such an extent as to render him incapable of understanding the nature and consequences of his act. It excludes from its purview, the insanity caused due to emotional and volitional factors. It is only insanity of a particular or appropriate kind, which is regarded as insanity at law that will excuse a man from criminal liability. The legal concept of insanity widely differs from that of the medical concept.


The kind and degree of insanity available as a defense to a crime has many times been defined. However, the most notable of all is the ‘right and wrong test’ formulated in Mc`Naughten’s case. It was an interesting case, worth remembering. According to the summary of the case Daniel M’Naghten was obsessed by the idea that Sir Robert Peel, by creating the Metropolitan Police in London, wanted to destroy the liberties of Englishmen. He hunted Sir Robert to kill him, but mistakenly shot and killed his secretary. M’Naghten was acquitted of the murder charge by virtue of insanity.


The House of Lords moved by the controversy aroused and clarified the defense of insanity as follows:


Every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crime, until the contrary be proved to their satisfaction; and that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was suffering under such a defect of reason, from disease of the  mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know he was doing what was wrong. (Freda and others, 1994: 91-93)


Therefore according to their clarification, a defendant is not guilty of crime if, at the time of the act, due to severe mental illness, First, in cases the defendant does not know the nature and quality of his or her act (in other words, did not appreciate what he was doing so that the “act requirement” is not fulfilled), for example, a person strikes another person, and in consequence of an insane delusion thinks he is breaking a jar or second in cases, that the defendant does not know the wrongfulness of his or her act (in other words, if he could not form the requisite mens rea), for exaple, one may, under insane delusion, believe an innocent man whom he kills, to be a man who is going to take his life.


On the other hand, the isolated reference to and application of the second part of the test and the resultant miscarriage of justice caused courts to constantly change and reshape their tests of insanity. The following are some of the short-lived insanity tests:


  • The irresistible impulse addition to the M’Naghten test: A defendant may be acquitted if he or she was unable to control the action due to mental illness.
  • The Durham Rule, or “product test” (1954): The defendant must be acquitted if the crime was the product of mental disease or defect.
  • The Currens Test (1961): The defendant must be acquitted if he or she “lacked substantial capacity to conform his conduct to the requirements of  the law…as a result of mental disease or defect.”


Latter in 1982 the American Congress settled the issue, at least as far as federal law is concerned, by providing for an acquittal by reason of insanity if “at the time of the commission of the act the defendant, as a result of sever mental disease or defect, was unable to appreciate the nature and quality or wrongfulness of his act.” But majority of states in the region have adopted the version codified in the American Law Institute’s Model Penal Code and known as the ALI test:


A person is not responsible for criminal conduct if at the time of such as a result of mental disease and defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law.


This test focuses on the defendant’s capacity to form the necessary criminal intent by asking whether the defendant appreciated the wrongfulness of the act. It also emphasizes, as part of the mens rea, the defendant’s volitional capacity: Could the defendant really intend to commit the wrongful act? Did he have the “(substantial) capacity” “to conform his conduct to the requirements of law”?


The laws, which the Criminal Code of Ethiopia provides regarding defense of insanity, are found in Article 48.  As elaborated earlier in this section, our law do not describe responsible, but irresponsible person. It implies that an offender is presumed to be responsible so long as he does not show any of the signs of partial or total irresponsibility enumerated in the law, and only an offender who does not show any of these signs is fully liable to punishment. Thus, responsibility of an offender is not an element that the alleging party must always establish. Instead, responsibility is a legal presumption.


Essential Conditions to Establish the Defence of Insanity:



Art. 48(2) requires the proof of the defence of irresponsibility i.e. the incapacity of the defendant to form a guilty intention basing on the following important things:


  1. Nature of the incapacity: That the accuses is incapable of understanding the nature or consequences of his act or of  regulating his conduct according to such understanding,
  2. Reason of the incapacity: That such incapacity is due to age, illness, abnormal delay in his development or deterioration of his mental faculties, (one of the causes specified under Art. 49 (1) i.e. a derangement or an abnormal or deficient condition).
  3. Time of the incapacity: That such incapacity exists at the time of his act that produced the consequences in question.


The Code resorted to one of the three principal methods of defining criminal responsibility, namely: The biological method, the psychological method and the bio-psychological method. The three methods differ on factors that deem to be the source of irresponsibility. The biological method consists in specifying a number of physical or mental disabilities or defects deemed to render the person concerned irresponsible. The psychological method on the other hand consists in prescribing that a person incurs no liability that, at the time of the offense, was incapable of understanding the nature of his acts or of controlling himself. And according to the bio-psychological method, followed in many modern Codes including the Criminal Code of Ethiopia, a person is regarded as irresponsible only if, at the time of the commission of the crime, he was deprived of his mental faculties in consequence of certain biological defects. In other words there must be a causal relation between the biological defect, which the offender suffers, and the psychological failure as a result of which the person become incapable to understanding his acts. However the mere presence of the two does not suffice. Aaccording to this system reasons other than mental disease such as anger, hatred or lust, are capable of rendering a person ‘mad’ or ‘insane’. In the popular sense of the terms, they are excluded from being considered as grounds of legal irresponsibility


Sub-Article 2 of the provision clearly provides the test of insanity. It provides both the biological and psychological tests, which are enumerated below:


  • Age: refers to old age, for senility may affect a person’s mental faculties;
  • Illness: refers to any form of mental as well as physical disease as a result of which a person is deprived of his mental faculties.
  • An abnormal delay in the offender’s development, which includes cases such as idiotism, cretinism, the consequences of deafness, dumbness sleeping sickness, and the like;
  • Deterioration of mental faculties of the offender due to poison, intoxication by alcohol or drugs, hypnosis or somnambulism;

The sub-provision further cross-referred to the unlimited biological causes recognized under Article 49 as capable of affecting person’s state of mind.

Regarding the psychological consequences in most legal systems two different mental conditions are recognized to claim exemption from criminal liability.


These are:

a) the accused was incapable of knowing the nature of the act, owing to unsoundness of mind, or

b) the accused was precluded by reason of unsoundness of mind from understanding that what he was doing was either wrong or contrary to law.


In this regard, our law in the same sub-Article specifies three manifestations.

They are:

  • inability to understand the nature of the act. For example, if person strikes another, and in consequence of an insane delusion he thinks that he is breaking a jar.
  • inability to understand the consequences of the act for example a person may kill a child under an insane delusion that he is saving him from sin and sending him to heaven
  • inability to regulate one’s conduct according to such understanding (some suggests this implies the notion of ‘irresistible impulse’ which includes cases where the offender is deprived of the power of controlling his conduct/Graven)  by disease.

These psychological failures can also be categorized into lack of intelligence and absence of will power. In the first category, due to some kind of disease the doer is deprived of minimum of intelligence, which should be present in a responsible person so as to enable him to know what he is doing.  In the second category, the doer is deprived minimum of ‘power of will’, which should be presented in a responsible person so as to enable him to make a reasonable decision or to act in accordance therewith. For a person to be regarded as criminally irresponsible, it is not necessary that both his intelligence and volition should have been abolished. It is sufficient to show that the offender at the time of the act was totally deprived of either his intelligence or volition. Further, it is of no importance whether the biological causes are temporary or permanent nature. Only the presence of one type of disease at the time of the act is relevant.


Proving Insanity


In addition to its role in determining responsibility, insanity plays an important role in determining whether the defendant is competent to stand trial or not. In this latter case only relatively less complication may occur in establishing insanity for it is based on the actual state of mind of the defendant existing at the time of trial. A more controversial application of insanity occurs when one attempts to determine whether the defendant was sane or not at the time of the act. This is because insanity may have been completely removed at the time of trial. Therefore, although in both cases medical science has the decisive role to play, looking in to the motive and conduct of the accused before, during and after the incident is more relevant in establishing insanity for the purpose determining irresponsibility. Accordingly, Art. 51 of the Criminal Code authorized the court to order an inquiry to be made as to the character, antecedents and circumstances of the accused person. Therefore the conduct of the doer prior to the incident as well as at the time of the incident and subsequent to the incident does not support the contention that he was insane at the time when the offense was committed; the court may make such decisions as it thinks fit. This implies that ‘legal insanity’ is not the same thing as ‘medical insanity’ and a case that falls within the latter category need not necessarily fall within the former.


Besides, the law presumes that every person is sane unless the contrary is proved. Mere absence of motive would not indicate that the accused was insane, or that he did not have the necessary mens rea for the commission of the offence. Thus in a case where pre and post facto situations show little or no sign of insanity, the doer bears a heavy burden to prove its existence at the time of the commission of the act.


At last, what the law lays down is not that the accused claiming protection under it should not know an act to be right or wrong, but that the accused should be ‘incapable’ of knowing whether the act done by him is right or wrong.


The capacity to know a thing is quite different from what a person knows. The former is a matter of potentiality; the latter is the result of it. If a person possesses the former, he cannot be protected in law, whatever might be the result of his potentiality. In other words, what is protected is an inherent or organic incapacity, and not a wrong or erroneous belief which might be the result of a perverted potentiality.



Legal Effects of Criminal Irresponsibility:


The legal effects of criminal irresponsibility are of two kinds. other is that an irresponsible person incurs no liability since, according to sub-art. (1), “the criminal who is responsible for his acts alone liable to punishment. The other is that hand the law required the court to ensure the irresponsible person will not be any more a menace for others. Therefore, sub-art. 3 authorizes the court to make orders under Arts. 129-131, whenever these measures are necessary for the treatment of the offender or the protection of the public or both.


Limited Responsibility: Art. 49



It is believed that the fact that some who committed particularly notorious crimes invoked insanity and escaped justice has prompted several states to pass legislation providing for an alternative disposition, that of “guilty but mentally ill.” This novel idea is meant to cover defendants not mentally ill enough to qualify for an outright acquittal “by reason of insanity,” yet not well enough to be found fully accountable and “guilty”. Therefore, between insanity and sanity, there exists intermediary stages where an offenders faculties are affected to such an extent that, although he is certainly able to understand what he does and to act accordingly, it is equally certain that his intelligence or will-power is not that of a “normal” person and that his degree of guilt is consequently lesser than that of such a person. Such a person may neither be relieved of liability, since he is not fully irresponsible, nor should he be liable to a full punishment, since he is not fully responsible.


Unlike irresponsible persons, who are for some biological reasons totally deprived of their mental faculties, semi-responsible offenders are persons who are for some biological reason only partially deprived of their understanding or volition.  It is therefore, to this kind of offender that Art. 49 applies and it applies only where there is no doubt the accused is not fully irresponsible within the meaning of Art. 48.


Characteristics of Limited Responsibility



It was believed that some biological diseases or defects are less serious to cause absolute irresponsibility. Accordingly it was proposed that the biological causes of limited responsibility described under Art. 49, stated as a derangement of the mind or understanding (e.g. hysteria), an arrested mental development (e.g. imbecility) and an abnormal or deficient condition (e.g. alcoholic intoxication) do not have the effects specified under Art. 48.


But according to the contemporary view, the causes and characteristic ingredients of limited responsibility are similar to those of irresponsibility. The question is that whether the abnormality substantially impaired the defendant’s mental responsibility for his acts or not. This is a question of degree.  In most cases only expert evidence will enable the court to decide whether and to what extent the accused is irresponsible. But some common law jurists  such Per Lord Parker argues that the question involves a decision not merely as to whether there was some impairment of the mental responsibility of the accused for his acts but whether such impairment can properly be called ‘substantial’, medical evidence serves a limited purpose. For jurists, it is a matter upon which juries may quite legitimately differ from doctors.


A person is not partially responsible for the sole reason that he is of low intelligence or poor education. A mediocre intellect does not amount to feeble-mindedness within the meaning of criminal law. A person may have an insufficient education or be capable of realizing that he does something unlawful. Therefore, like Art. 48, it is required that the offender should have been at the time of the offense in a biological abnormal condition affecting his mental faculties. In fact, it sufficient that the offender’s capacity of understanding or will power should have been diminished.


Furthermore, a person is not partially responsible for the sole reason that he is of week character or morally perverted. “The court must reduce the penalty only with regard to an offender who suffers from a mental disease or whose mental development is incomplete, but not with regard to a weak person who is aware of the unlawful nature of his act and who commits an offence out of dishonesty”.



Legal Effects of Limited Responsibility:



Like that of irresponsibility, the legal effects of limited responsibility are of two kinds:

1.The accused is liable to punishment since he was not irresponsible at the time of the act and he is capable of understanding the meaning and purpose of punishment; however, the penalty must be reduced because the offender’s responsibility, and consequently his degree of guilt, is reduced. Since persons who are not fully responsible for their acts may, like irresponsible persons, be in need of medical treatment or threaten public safety, the court must, whenever the necessity is present make an order under Art. 130 or 131, as the case may be.

Thus, unlike other defenses, the legal effects of insanity, whether absolute or limited, shows that the court is duty bound to deal with the causes of the insanity. If the court orders confinement or compulsory treatment, that is for the benefit of the offender himself or the community in which the defendant is living.