It is good to see that the Kenya Psychiatric Association has asked Parliament to remove the crime of attempted suicide from the Penal Code – and to see this has the support of Bishop Oginde of Citam.
Historically, suicide itself was a crime in various western countries.
You might wonder what is the point of saying suicide is a crime – anyway the person is no more.
But in England, it was an offence for which a person’s property was seized by the state.
Not only that but certain humiliating treatments of the body were decreed by law in various countries.
Churches did not allow suicides to be buried in church cemeteries. The Church of England has only formally allowed funeral services for suicides since 2015.
The Kenyan Penal Code currently says: “Any person who attempts to kill himself is guilty of a misdemeanour” – and under another section, the punishment is up to two years imprisonment.
The injustice of this is obvious. The psychiatrists focus on the fact that people who try to kill themselves are probably suffering from mental illness and need treatment and support, not a criminal charge.
Ill or not, the notion that a person who genuinely felt life was so unbearable that they tried to kill themselves should have to face arrest, detention, a trial and perhaps a prison sentence is repellent.
Research has shown that most people who try to kill themselves are not really wanting to die but are really making an appeal for help.
Again it is almost unthinkable that such a person should be accused of a criminal offence.
People who are aware that this is a crime may be reluctant to ask for help – from doctors, social workers or anyone else – being afraid that they may be reported to the police.
In fact, quite a lot of the people who are charged in Kenya with attempted suicide are also charged with murder or attempted murder of someone else.
Quite why is not clear – does the prosecution think they may not succeed in proving the murder, but want to charge the accused with something?
But sometimes people do actually get prosecuted for simple attempts to kill themselves.
Many countries have removed this crime from their laws. The UK did so in 1961 - and this was well after some other countries.
Several other African countries are among those that have not.
COULD COURTS DO IT?
It is not impossible that a Kenyan court would agree that this crime is unconstitutional. But it is by no means certain.
The Indian courts dithered a good deal about this, eventually deciding it was not unconstitutional, leaving it to Parliament to change the law.
But there are some European Court of Human Rights cases that might be helpful.
Courts, however, are not necessarily the best way to deal with issues of whether some law should be declared unconstitutional — though the Constitution gives them that power.
Very often there is not just one question to be answered. Removing one rule from the law may have knock-on effects. One has to ask, “Now what?”
But the court itself cannot answer the question. It can only make a ruling on the issue before it. And in reality, no one may have realised the “Now what?” issues.
COMPLICATIONS
The Kenyan Penal Code already has some sections about other suicide issues. One is about suicide pacts.
If two people make an agreement to die, but the understanding is that one person will kill another and then commit suicide – but does the first but fails to do the second, the killing is not murder.
It is manslaughter – provided they really did the killing when they were determined to die themselves.
This is less important now since the Supreme Court held that the mandatory (automatic) death sentence for murder was unconstitutional.
Now the court can impose any sentence even in a murder case depending on the circumstances of the case.
The other issue is more complicated. You may wonder: “Maybe it should not be a crime to try to kill oneself, but how about persuading or bullying someone else to kill themselves?”
The Penal Code does say that anyone who does one of the certain things can be sentenced to imprisonment for life.
The forbidden things are “procuring” another person to kill themselves, or “counselling” them to do so.
There is not really much difference between procuring and counselling – which means advise or persuade. Basically, the section envisages a person taking the initiative to get someone else to kill themselves – and succeeding.
But suppose they try to persuade or bully but fail? Perhaps it should be clarified whether this is a crime or not (surely it should be)?
ASSISTED SUICIDE
The same section of the Penal Code says it is a crime, punishable with life imprisonment, to assist a person to commit suicide.
Is this not rather different? Here is a person who has already decided they want to die, but for some reason, they cannot take the fatal step themselves.
It is these sorts of situations that have caused much heart-searching and lawmaking in recent years.
There is a huge range of possible situations. For example, the person who says “buy me the poison” but takes it themselves, or the person who says, “I want to die but can’t take the last step – please push me off the cliff”.
Then there are the doctor-assisted cases, where a very ill person, perhaps in perpetual agonising pain, is determined to die but does not know-how.
Some countries do allow doctors to help – usually with complex safeguards to make sure the person really does want to die. These include several US states, Switzerland and the Netherlands.
I am not suggesting that Kenya is ready yet to move to such a situation. Interestingly, in February last year, the German Constitutional Court held that it was unconstitutional to prohibit professionals to assist suicide.
The court said it was not impossible to regulate such assistance but a blanket ban was wrong.
As I say, I do not imagine Kenya or its courts would go so far. But I do wonder whether assisting someone to kill themselves ought to be treated differently in law from bullying or persuading them to do so.
WHEN TO PROSECUTE
It is not our law that everyone who is suspected of having committed a crime must be charged in court.
The Office of the Director of Public Prosecutions has a choice. Already they have guidance in general principles of when to prosecute.
To decide whether to prosecute a person who has helped another to die — perhaps out of professional concern, perhaps out of love for a suffering relative — is not easy.
In some countries, the prosecutors have faced up to this and developed guidelines. There should be public participation in the process of developing guidelines.
In the UK, for example, the highest court first required the prosecution service to develop guidelines.
And the ones they developed include things like the age and vulnerability of the victim, how clear it was that the victim had made their own well-informed, final decision to die, what was the motive of the suspect, and whether the suspect had reported the suicide to the police and helped them in their enquiries.
LAW REFORM COMMISSION
Prosecution guidance is a matter for the independent office of the DPP.
But a full consideration of the implications of a decision that attempted suicide should no longer be a crime, and particularly of how to treat assisting suicide, is perhaps not best left to either the courts or Parliament alone.
We have a body specifically set up to look at issues like this – the Law Reform Commission.
It is supposed to consider areas of the law that may need changing, produce proposals and seek professional and public input.
It cannot make the changes to the law – that is for Parliament — but it could produce well-crafted, carefully researched and thought-through proposals for new law on suicide.
