By Jared Juma
Section 28 of the Penal Code Cap 64 of the Laws of Kenya lists out incipient offenses. These are offenses whose commission have not been perfected and are punished on the basis of making an attempt to commit them. A good example is robbery. If you plan to commit robbery and attempts it, it becomes immaterial whether you succeed, or not. You will still have your day in court only that for not committing the actual robbery, you may be charged with the inchoate offense of attempted robbery.
The penalty is not, however, similar to that of a person who committed the actual robbery. The penalty may be lenient (say, reduced by half). For a crime to be punished both the mind and the action should coincide – that is the mens rea and actus reus must correspond. Punishment may be entered into even in cases of strict liability.
Legal provision
Suicide is provided for in Section 226 of the Penal code and provides as follows: “Any person who attempts to kill himself is guilty of a misdemeanour…” It is an attempt yet punished as a full offense. The question that lends itself today is whether the penalty for suicide and the entire law against it is relevant in the development about human societies today.
The unique thing about suicide is that only its attempt is punishable (or should be punished) – and a person who succeeds with suicide escapes the law. Challenges, however, have arisen into the emerging jurisprudences and legal writings about the place of Section 226.
Counselling, not conviction
The overriding reasoning is that no one wants to take their own life unless they find themselves in a position where they are incapable of making a sound or reasonable judgement over the matters at hand. In the words of Justice William Musyoka, in the book “Criminal Law”, they are parties who need more of counselling than conviction. The reasoning is still the same – that rarely do you come across a person who enjoys the very essence of taking his/her own life.
In Criminal Appeal No. 270 of 2012, “Patrick Sang’anyi Ongeri vs. Republic [2015] eKLR”, the Appellant, Patrick Sang’anyi Ongeri, had been charged with attempted rape and attempted suicide and, of his own plea, was convicted and sentenced to five years in prison. Patrick was charged with the offence of attempted rape contrary to Section 4 of the Sexual Offences Act.
The particulars of the offence were that on March 10, 2010 at an Estate in Nairobi, the Appellant intentionally and unlawfully attempted to commit an unlawful act by attempting to insert his male genital organ into the female genital organ of CMM (the Complainant), which could have caused penetration without her consent.
He was alternatively charged with the offence of committing an indecent act with an adult contrary to Section 11 (6) of the Sexual Offences Act. The particulars of the offence were that on the same day and in the same place, the Appellant intentionally and unlawfully committed an indecent act by touching the breasts of the complainant.
Filed appeal
He was further charged with the offence of attempted suicide contrary to Section 226 of the Penal Code. The particulars of the offence were that on the same day, and in the same place, the Appellant attempted to commit suicide by cutting his throat with a knife.
When the Appellant was arraigned before the trial magistrate’s court, he pleaded guilty to the charges. However, it emerged that the Appellant was suffering from a mental disease. He was referred to Mathare Mental Hospital for treatment, which took some time. When he was eventually treated, he was returned to court and sentenced to serve five years imprisonment.
He was aggrieved by his conviction and sentence and duly filed an appeal to the High court. His appeal was based on the grounds that he did not have the requisite mental capacity to commit the offence. This is because at the time he committed the offence, he was suffering from a mental disease.
The state Counsel or the prosecution side conceded to the appeal. They stated that the Appellant lacked the requisite mental capacity to commit the offence. He was a mental patient and had been treated at Mathare Mental Hospital for some time prior to and after the commission of the offence.
On his part, the Appellant stated that he admitted to committing the offence but in reality he was not in control of his mental faculties at the material time. He urged the court to acquit him in view of the fact that he was a mental patient at the time he alleged to have committed the offence. Justice Luka Kimaru allowed the appeal. He was acquitted and the 5 year jail term handed to him by the Magistrate Court was set aside.
Irrelevant
The analysis here underscores the fact that the offenders under Section 226 are victims who may not need the harsh sanctions of the State but rather sympathy and guidance to avoid falling into acts that are forbidden by written law and frowned upon by right-thinking members of the society.
This brings me to earlier question: What is the relevance of Section 226 in the Penal Code? Do we need a law that exists only in books but whose practical application results into recommendations for counselling and further attracting sympathy? Perhaps it’s about time the Kenya Law Reform Commission recommended the to Parliament an amendment so as to be in tune with the practical applications of the day.
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