- These days I don’t think many people would characterise suicide as harming the state.
- We don’t condemn all those whose lifestyles risk death. Nor people whose crazy driving risks death for themselves – only because it does so for others.
Too many people kill themselves in Kenya. Precise figures are hard to estimate but there is wide agreement that there is a problem. The Ministry of Health’s Suicide Prevention Strategy 2021-26 aimed to reduce the rate by 10 per cent in its lifetime.
The idea
It was a pleasure to read that Prof Lukoye Atwoli had petitioned Parliament to take an important step in that direction: taking the crime of attempted suicide off the Kenyan statute book. And that a substantial number of MPs were supportive.
I believe that this would be in line with the constitution. Article 29 says, “Every person has the right to freedom and security of the person, which includes the right not to be … treated or punished in a cruel, inhuman or degrading manner.”
The maximum sentence for someone convicted of attempted suicide is two years – and it would be open to the judge or magistrate to give a very low sentence or even none at all (perhaps an unconditional discharge). But, for someone who has, as some MPs were saying, suffered so much that they feel compelled to end their own life as the only solution, to be subjected to a criminal trial and the uncertainties this involves is cruel, inhuman and possibly even degrading. Arguably it can amount to torture which is also forbidden under the constitution.
Admittedly, also, there have been few prosecutions. But the fear may still be there – even for those thinking of suicide.
And the existence of the offence opens the way to police abuse. A few years ago a man clung to the underneath of Raila’s helicopter and was lifted off the ground and carried some distance. Stupidity no doubt – but the police planned to charge him with attempted suicide.
The Shakhahola question
People may harm others by persuading them to kill themselves as Kenyans know only too well – but this would still be an offence and punishable by up to life imprisonment. That seemed an obvious charge for Mackenzie rather than trying to prove terrorism, a more complex matter and an offence carrying the same maximum sentence.
The religious objection
OK – some MPs believe that because suicide is a sin they are duty bound to ensure that it remains a crime. Even that “This House will face harsh punishment if we decriminalise suicide”. There is no reason to suppose that the MPs who support the change are less religious.
Accepting, for the moment, that it may be a sin, why do some MPs believe that this means they must punish it? Does every sin have to punished by earthly law? If so, why do we not punish adultery by the criminal law? Why do we not punish telling lies by the earthly law?
Is this not perhaps a situation that should be dealt with according to Christ’s principle of “rendering to God the things that are God’s” – in other words that if God decrees something is a sin it should be punishable by heavenly punishment, unless it falls within those acts that must be punished by earthly law.
Alternatively, on the basis that God is merciful, why should they assume that God’s response is necessarily punishment? And if so why should this be according to a law introduced into Kenya by the colonial government which they seem to think is graven in stone?
A famous 18th century English jurist wrote, “The law of England wisely and religiously considers that no man hath a power to destroy life but by commission from God, the author of it; and as the suicide is guilty of a double offence, one spiritual, in evading the prerogative of the Almighty, and rushing into his immediate presence uncalled for; the other temporal, against the king, who hath an interest in the preservation of all his subjects, the law has, therefore, ranked this among the highest crimes, making it a peculiar species of felony, a felony committed on one's self.”
And until 1823 someone who died by their own hand was buried not in a churchyard but at public crossroads, with a stake put through their heart, and (like other felons) their property was forfeit to the crown (the state) until 1870.
How far would our MPs like to go?
Discouraging suicide
A major objective of the criminal law and the sentencing process is to reduce crime. Does potentially punishing attempted suicide reduce suicide? There is some concern in Kenya about what are perceived to be increased rates of suicide. Apparently something is not being done right.
In reality it is unlikely that - even if a person knows attempting suicide is a crime - it will deter them from trying. People who kill themselves are by definition - and logically - not thinking about the consequences to themselves. When someone close to us committed suicide a couple of years ago I talked to a psychologist family member. I suggested that it does seem to be a rather selfish thing to do – look at the impact on family members in practical and emotional terms.
She said that as a student she learned that people who killed themselves often simply felt there was no alternative. Almost like people who leap from a burning building. They know they will certainly die if the building is like the World Trade Centre but the alternative is to stay and burn in agony. The compulsion to jump is irresistible. The suicide looks on the alternatives in rather the same way.
Some people attempt suicide not with a settled intention to die but as a sort of cry for help. They should not be convicted of attempted suicide - but they cannot be sure they will be treated as not having genuinely tried to die. And many who genuinely did try were reacting to some apparently overwhelming situation but it is – or could with help be – only temporarily overwhelming.
There may be help for people who are feeling like this – whether from health services, religious counselling or some social support. And there should be more help. But if they believe that seeking help may lead to their being treated as prospective criminals (or even actual criminals if they have failed in a suicide attempt) they are more likely to be deterred from seeking help than from committing suicide. Or even more determined to succeed in their suicide attempt.
This is the argument of those proposing a change in the law – as it was the assumption of the Ministry of Health in its Suicide Prevention Strategy.
Is not this sort of approach more in line with God’s perceived wish that people don’t commit suicide – rather than punishing those who try?
Changing attitudes
Not every society takes the same view of suicide. I am not thinking only of suicide bombers or Japanese Kamikaze pilots in the Second World War. Suicide has been an honourable death in some societies – admitting defeat in war and avoiding capture, atoning for misbehaviour are examples. One Captain Oates, who walked out of a tent in the Antarctic in 1912, knowing he would not survive but hoping his companions would (they did not) is a hero not a felon.
These days I don’t think many people would characterise suicide as harming the state. We don’t condemn all those whose lifestyles risk death. Nor people whose crazy driving risks death for themselves – only because it does so for others.
Generally the criminal law is a tool for the deterrence and punishment of those who harm others. Isn’t it time we removed suicide from Kenyan law on the basis that it is not in its essence a harm to others which is what the criminal law should be about? At the same time we need to improve services so that people who are freed to confess to suicidal thoughts actually get help.