A cry for help, not punishment

‘If a person is so miserable that they cannot face the idea of living; does it seem right to add to their woes by sending them to jail?’ – Jill Cottrel-Ghai

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BY Newton Arori

“It seems a monstrous procedure to inflict further suffering on even a single individual who has already found life so unbearable, his chances of happiness so slender, that he has been willing to face pain and death in order to cease living. That those for whom life is altogether bitter should be subjected to further bitterness and degradation seems perverse legislation” – Anonymous

In just 10 years, the number of suicides per year in Kenya has risen by 58 percent. 421 Kenyans took their own lives last year alone. Many more unsuccessfully attempt suicide, and it is unclear how many cases go unreported. Those are startling statistics in their own right, and it is upon us to immediately interrogate the issue.

Kenya’s answer to this problem, it seems, is to criminalise attempted suicide. Under Sections 226 and 36 of our Penal Code, attempting suicide is an offence punishable by a 2 year jail term, a fine or both.

This archaic law is a vestige of medieval practice that seeped into and has somehow remained in our law books. As we will demonstrate, our current anti-suicide law is, at best, worthless and, at worst, a source of additional pain.

Suicide as unnatural

It is argued that since only God gives life, He only reserves the right to take it. One should therefore live his life until nature conspires to end it, the argument goes. Suicide is an unnatural extinction of life, and an attempt to its effect should be punished.

Those who champion the criminalisation of suicide are quick to leap to this argument, only they fail to explain the extent to which taking one’s life is unnatural. Suicide among humans has existed in one form or another since pre-historic times. Some civilisations even deemed it acceptable in certain circumstances. In ancient India for example, an incurably diseased man would be advised to “walk, fully determined and going straight on, in a north-easterly direction, subsisting on water and air, until his body sinks to rest.” In essence, this society permitted suicide by starvation when confronted with an unbearable existence. It may be added that the triggers of suicidal behaviour such as depression, are a part of everyday life.

Further, the objection to unnatural conduct is somewhat selective. Anyone who uses an alarm clock to get up in the morning, wears clothes or drinks milk beyond infancy is clearly not operating within nature’s plan. A number of other things would then be declared unnatural and criminalised. It could be that if taking life is unnatural, then so is saving it.

Right to life

In most or all countries, the right to life is protected by the Constitution. Article 26 of our supreme law protects this right to the extent it provides that “A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.” To some, taking or attempting to take a life (notwithstanding that it is yours) is an affront to the right to life. To such people, the criminalisation of attempted suicide is justified on those grounds. This argument misses a crucial point, and that is, ‘life’ does not refer to mere animal existence. 

In the book ‘Ratanlal & Dhirajlal’s Law of Crimes’, the authors observe that the scope of “life” is much wider, and entails the right to live with human dignity. In their words, “[The] right to life means right to live peacefully as [an] ordinary human being. One can appreciate the theory that an individual may not be permitted to die with a view to avoiding his social obligations. He should perform all duties towards fellow citizens. At the same time, however, if he is unable to take normal care of his body or has lost all the senses and if his real desire is to quit the world, he cannot be compelled to continue with torture and painful life. In such cases, it will indeed be cruel not to permit him to die.”

Living is therefore a right, not an obligation. On the contrary, it may be argued as it was in the case of ‘Rathinam v. Union of India (AIR 1994 SC 1844)’ that rights have their positive as well as negative aspects. For example, the freedom of speech includes the right to stay silent. The freedom of movement also implies the right not to go anywhere. As a logical consequence, the right to life must include the right not to be forced to live. The court agreed with this reasoning.

Deterrence

There is little or no evidence that punishment deters any would-be criminal, much less a suicidal one.

In 1992, British psychologist David Lester compared suicide rates in Canada a decade before and after the decriminalisation of suicide. He found he found no increase in suicide rates following decriminalisation. In 1993, Lester did the same comparison in New Zealand with similar results. Given that the reporting of suicide acts is more likely without the threat of penal consequence, the suicide rates in these two countries most probably dropped after decriminalisation.

But one can easily appreciate what informs the deterrence school of thought. Data from the World Health Organisation shows that suicide rates in African countries (where suicide is criminalised) are lower compared to those in Western countries (where suicide has been decriminalised). However, as every good researcher knows, correlation does not mean causation. It would be naïve to presume that the lower rates are attributable to the fear of punishment. A number of other factors could be at play here, including religious beliefs, strong social systems and limited access to suicidal methods.

Additionally, the data could be inaccurate due to underreporting of suicidal acts, owing to the apprehension of being prosecuted.

Conclusion

Prosecution for attempted suicide humiliates and traumatises both the subject and their family and sometimes even exposes them to ridicule. In fact, even without its criminalisation, there already is enough social stigma attached to suicidal acts. We use the term ‘commit’ to refer to homicide, adultery or assault. In addition religious bodies use the term ‘commit’ to refer to a sin. The word suggests that the individual was making a rational decision whereas modern psychology and medicine suggests that suicidal individuals have diminished ability to make rational decisions.”

In recent years, many countries have decriminalised suicide. Make no mistake, these countries do not encourage suicide; they still discourage it but at the same time understand the act and help suicidal individuals rather than punish them. We would do well to borrow a leaf from such countries. (

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