Distinguish between the following offences under the penal Code taking note of any ambiguities or overlaps

Distinguish between the following offences under the penal Code taking note of any ambiguities or overlaps

1. Infanticide
2. Killing of an unborn child

• Abortion related offences

Introduction

These are offences found under division IV of the Penal Code which entail crimes relating to trespass of the person[1]. These offences include; murder and manslaughter. Since infanticide, killing of an unborn child and abortion deal with killing, they are therefore murder related offences. Ambiguities and overlaps come up because they all deal with killing and attempts to kill children. The underlying principle, however, is that these killings are unlawful and therefore have penalties such as life imprisonment or a jail term of up to 14 years.

Infanticide

Infanticide, on the other hand, is where “a woman by any willful act or omission causes the death of her child being a child under the age of 12 months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not fully recovered from the effects of giving birth to the child or by the reason of the effect of lactation consequent on the birth of the child, then, notwithstanding that the circumstances were such that but for the provisions of this section, the offence would have amounted to murder,  she shall be guilty of a felony, to wit, infanticide, and may for  that offence be dealt with and punished as if she had been guilty of manslaughter of the child.”[2]

A mother who alleges that the balance of her mind was disturbed by reason of giving birth is not really raising an insanity defense. The general state of health and mind of women, who kill their children during or shortly after giving birth, may be such that it negates the degree and intention and willfulness that is required with other forms of destruction of life.

Killing of an unborn child

The Penal Code states that,

“any person who, when a woman is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive then died, he will be deemed to have unlawfully killed the child, is guilty of a felony and is liable to imprisonment for life.”[3]

As stated in Elizabeth Mwelu Mwau v Republic[4], the offence of killing an unborn child makes it a criminal offence for a person to intend to destroy the life of an unborn child capable of being born alive by unlawfully using any means to achieve these results. Section 214 of the penal Code in this regards provides as follows as to when a child is deemed to be a person capable of being killed:

“A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel string is severed or not.”[5]

The offence of killing an unborn baby therefore only deals with acts intentionally performed before or during childbirth where the entire body of the child has not left the body of the mother. However, if the child is born alive and is independent of the mother, one is charged with the offence of murder, manslaughter, or infanticide.

Abortion

Abortion is the expulsion from the womb of a foetus or embryo before it is fully developed. It is provided for sections 158 to 160 of the Penal Code. It states that;

“any person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for 14 years.”[6]

The key word is miscarriage. According to the legal dictionary, miscarriage is the premature termination of a pregnancy before the foetus can survive outside the womb[7]. This section, therefore, makes it a criminal offence to procure a miscarriage up to the 2^nd trimester. This offence attracts the penalty of 14 years.

Overlaps

Some overlaps exist between these offences since they all deal with the killing of children.

The first overlap is between the offence of abortion and killing of an unborn child. As long as the child is prevented from being born alive, one is criminally liable. There is no clear demarcation on the child’s age since they both merge at the age of seven months where a miscarriage can occur hence abortion and at the same time this child is capable of being born alive in case of a premature birth thus killing of the unborn child. One can, therefore, be charged with either abortion or killing of the unborn child.

Ambiguities

According to the legal dictionary, when a statement’s meaning is not clear because it is capable of more than one meaning, it contains an ambiguity[8]. The provisions for the above offences in the Penal Code tend to have more than one interpretation.

Section 210[9] provides that the act or the omission causing death was done willfully and further states that during the time of the act or omission the balance of the mind was disturbed by reason of her not having fully recovered from the effects of giving birth. In Regina v Lisa Theresa Gore (Deceased)[10] the court observed that:

The mens rea for the offence of infanticide is contained, as we see it, explicitly in the first few words of section 1(1)[11], namely, the prosecution must prove that the defendant acted or omitted to act willfully. Hence, the disturbance of the state of mind negates the degree of intention and willfulness that is required in the offence of infanticide.

Section 228[12] provides that when a woman is about to be delivered of a child and prevents the child from being born alive by any act or omission, the person is criminally liable. The ambiguity lies in the fact that the time frame as to when a child is about to be delivered is not well established.

The case of Elizabeth Mwelu Mwau v Republic[13] also points out that the offence of killing an unborn baby deals with acts intentionally performed before or during childbirth, where the entire body of the child has not left the body of the mother.

Clarification as to the time frame of when ‘a child is about to be delivered’ should, therefore, be made in the above section.

Section 158[14] provides that any person who with intent to procure a miscarriage of a woman, whether she is or is not with child, is guilty of a felony and is liable to imprisonment.

A woman who ‘is not with child’ is not susceptible to be procured of an abortion.

In your opinion, the penal code provisions consistent with the right to life provisions set out in Article 26 of the Constitution of Kenya 2010?

The Constitution of Kenya 2010 is the supreme law of the land and is binding all persons and state organs. Article 26 guarantees the right to life in very precise terms. It begins with affirming this right then proceeds to acknowledge that life begins at conception[15]. The article prohibits arbitrary deprivation of life. Specifically, abortion is expressly forbidden unless, in the opinion of a trained health professional, there is the need for emergency treatment[16]. It has been argued, and rightly so, that the right to life is the most fundamental right on the basis of which other rights accrue. The Penal Code, on the hand, is a code of laws concerning crimes and offences plus their punishments. Some of the provisions of the penal Code and those of article 26 of the 2010 constitution of Kenya contain both consistencies and inconsistencies altogether that occur on several instances. The Constitution on this light provides that any law that is inconsistent with the Constitution is void to the extent of the inconsistency[17].

Inconsistencies

For one whereas article 26(2) provides that the life of a person begins at conception, the equivalent provision in the Penal Code which is section 214 sets out that “a child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel string is severed or not.” This brings the argument of when does life begin. There was a case of Republic v John Nyamu & 2 others[18] where the accused had been charged with the murder of two “persons” weighing 3012 grammes and 2232 grammes. However, the court held that “when it has completely proceeded in a living state from the body of its mother. That ingredient is not present in this case. Without that the fetuses in two counts were not persons capable of being killed. There is no murder.” The question would why is not treated as murder while the Constitution provides that life begins at conception.

Secondly, the penal Code in section 204 provides that any person convicted of murder shall be sentenced to death[19]. This is a mandatory death sentence as compared to article 26(1) which provides for the right to life. In Godfrey Ngotho Mutiso vs Republic case[20], the court held that: ‘… section 204 of the Penal Code, which provides for the mandatory death sentence is antithetical to the constitutional provisions on protection against inhuman or degrading punishment or treatment and fair trial. We note that while the Constitution itself recognizes the death penalty as being unlawful, it does not say anywhere that when a conviction for murder is recorded, only the death sentence shall be imposed. We declare that section 204 shall, to the extent it provides that the death penalty is the only sentence in respect of the crime of murder is inconsistent with the letter and spirit of the Constitution, which as we have said, makes no such mandatory provision.’

Consistencies

Article 26(3)[21]  provides that a person shall not be deprived of life intentionally except to the extent authorized by this Constitution or other written law. The other law, in this case, is the Penal Code. The cases in Godfrey Ngotho Mutiso v R[22] and Joseph Njuguna Mwaura & 2 others v Republic[23] are however in agreement that the Constitution envisaged a situation where right to life can be curtailed; and that the sentence of death provided in the Penal Code, for the offence of murder under section 204 of the penal Code, aggravated robbery under section 296(2), attempted robbery under section 297(2) and treason under section 40 was in line with the constitutional provisions giving the state power to limit the right to life through the written law.

Conclusion

In summary, the Penal Code has given elaborate definitions of the aforesaid offences.

However, in these definitions, there seem to be ambiguities in matters definition and interpretation, as explained above. For example, Section 210 of Penal Code provides that the act or the omission causing death was done willfully shows Mens rea is present Nevertheless, it states that during the time of the act or omission the balance of the mind was disturbed by reason of her not having fully recovered from the effects of giving birth shows mens rea is absent. Killing of unborn child and abortion-related offences overlap to some extent as a person charged with child destruction may be convicted of abortion. Also, there seems to be consistencies and inconsistencies between the Constitution and the penal Code. For instance, the discrepancy in Article 26 (1) of the Constitution of Kenya 2010 and Section 214 of the Penal Code on when a child is deemed to be a person.Bibliography

LEGISLATION

The Constitution of Kenya, 2010: Nairobi, 27th August, 2010

The Penal Code Chapter 63, laws of Kenya, Revised (2012)

Infanticide Act of The United Kingdom, 1938

CASES

Elizabeth Mwelu Mwau v Republic [2015] Eklr

Godfrey Ngotho Mutiso vs Republic [2010] eKLR

Joseph Njuguna Mwaura & 2 others v Republic [2013] eKLR

Regina v Lisa Theresa Gore (Deceased) [2007] EWCN

Republic v John Nyamu & 2 others [2005] eKLR

[1] Penal Code Chapter 63 laws of Kenya

[2] Penal Code Section 210

[3] Penal Code Section 228

[4] [2015] eKLR

[5] Penal Code Chapter 63 laws of Kenya

[6] Penal Code Chapter 63 laws of Kenya Section 158

[7] Stout’s Legal Dictionary

[8] Stout’s legal dictionary

[9] Penal Code Chapter 63 laws of Kenya

[10][2007] EWCN

[11] Infanticide Act of United Kingdom 1938

[12] Penal Code Chapter 63 laws of Kenya

[13] [2015]Eklr

[14] Penal Code Chapter 63

[15] The Constitution of Kenya 2010, Article 26(1)

[16] Article 26(4)

[17] Article 2(4)

[18]  [2005] eKLR

[19] Chapter 63 laws of Kenya

[20] [2010] eKLR

[21] The Constitution of Kenya, 2010

[22] Ibid

[23] [2013] eKLR