Right to death: A Kenyan perspective

WHO reports that every 40 seconds, one person commits suicide globally. This adds up to 800,000 people annually who die from suicide.

WHO further estimates that in Kenya, four people die every day from suicide, which adds up to about 1,408 people annually. These statistics include people who take their lives, or who are assisted to take their lives, in order to end some form of suffering and pain resulting from a certain health condition. This can be said to be some form of euthanasia.

Euthanasia, which is also known as medically assisted dying, is the action of putting a person to death painlessly as a way of avoiding further suffering caused by an incurable disease, or to put an end to an irreversible comatose condition. To understand euthanasia, its definition and intention, one must first understand the definition of death and what it has evolved to mean, with the advancement of medical technology.

In the past, death was defined as cessation of the heart, but this has since been altered to mean brain death. Keeping this in mind, it is easier to understand euthanasia as a way of mercifully inflicting death upon a person in order to avoid torment brought about by an incurable or fatal condition.

There are several forms of euthanasia, including active and passive euthanasia. Active euthanasia involves an enabler, such as a medical practitioner, who, besides providing the means to end a life, takes part in the actual death-causing act. Passive euthanasia, on the other hand, involves withdrawal of treatment to facilitate death.

This has been an ancient practice that has been accepted and advocated for even by those we regard as the greatest philosophers that ever lived. Plato, for instance, in his desire for nature to take its course advocated passive euthanasia. He believed doctors could withhold treatment of a patient if life expectancy was short. He was, however, against active euthanasia. He actually believed that any one [doctor] who would perform an action that would directly result to a patient’s death deserved to be punished by death.

Others like Hippocrates were sternly against the practice of euthanasia. In what is called the Hippocratic Oath, physicians are expected not to administer poison to anybody when expected of them, nor to suggest such a course.

Whereas some jurisdictions, such as Switzerland, allow their citizens and foreigners to end their lives as a way of upholding the right to dignified death, some jurisdictions, like ours, do not allow it. This is evident from a recent judgment given by Justice JM Bwonwonga, where he sentenced the accused persons to 15 years imprisonment for allegedly taking the life of their child, even though they thought they were administering some form of euthanasia to grant her a painful death. (Republic v Emmanuel Kiprotich Sigei & another [2019].

Justice Bwonwonga’s obiter dictum got me thinking about the position of euthanasia and right to death in Kenya, and whether it should be made legal or expressly made illegal. In his words, he said, “…the duty of the accused as parents was to care and protect the deceased. Instead, they turned against the deceased and murdered her. Even if the accused thought this type of killing was a form of euthanasia, since the child was crawling and sickly due to flu, it is still an offence to do so. ”

The Constitution of Kenya, 2010 under Article 26, sanctifies life. The article provides that no one should be deprived of their life intentionally, save for the extent authorised by the constitution or any other written law. This article further provides for an exception to abortion. This does not seek to legalise abortion. Rather, it seeks to permit it when, in the opinion of a trained health professional, there is need for emergency treatment or the life or health of the mother is in danger.

Would this apply in the life of an adult, where, if a medical practitioner opines that a patient’s health condition will not improve in any way, and where such a person is in pain, would it not be justified to withdraw any form of treatment or administer one that will end the patient’s life? Or would this in any way contradict the right to life and be to an offence under the Penal Code?

Article 28, on the other hand, provides for the right to human dignity, which is to be treated with concern and respect. Does this dignity extend beyond life, or at least up until a person dies, just to allow them to make a decision to be allowed to die in dignity? Would a patient in persistent vegetative state, or one who considers themselves a burden to their family, be allowed to use euthanasia to uphold their right to life by exercising their right to die with dignity?

If interpreted broadly, the right to life and right to dignity could include decisions related to the quality of one’s life, which would translate to the right to death if, in their opinion, their life, due to some form of condition, is no longer of quality.

Right to death is an area that should be approached with a lot of sobriety and one that should be openly discussed amidst our religions and cultures. As it is, so much uncertainty surrounds it and it remains unregulated, maybe even taking place on a day-to-day basis without the necessary safeguards in place.