By JV Owiti
A PERSON CAN BE CHARGED FOR MURDERING A FOETUS IN THE POST-2010 ERA
By JV Owiti, Advocate
I. A FOETUS WAS NOT A PERSON CAPABLE OF BEING KILLED BEFORE 2010
Section 214 of the Penal Code, Chapter 63 of the Laws of Kenya:
‚Äú214. 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.‚ÄĚ
As such the section expressly excludes the killing of a foetus from the definition of Murder under section 203 as read with section 204 of the Penal Code.
A person who caused harm to a foetus before it was born was therefore immune from murder charges and could only be charged for any ither offence; for example in the case of REPUBLIC vs. JOHN NYAMAU& 2 OTHERS; (Nairobi HCCR No. 81 of 2004);  eKLR, the High Court in Nairobi (K.H. Rawal, J) in finding that there was no evidence against each of the three accused persons at the close of the prosecution‚Äôs case and while acquitting each of them of the offences of murder in a Ruling dated 14th June 2005, held inter alia that:
‚ÄúSection 214 of Penal Code (Cap.63) stipulates when a child becomes a person capable of being killed. I have carefully analyzed the wordings of the Section and submissions by the Learned State Counsel. In all humility I cannot accept the contentions from the Learned State Counsel that the last portion of the Section is the operative part thereof, i.e. ‚Äúwhether it has breathed or not, and whether it has an independent circulation or not‚ÄĚ‚Ä¶
‚ÄúI am of an opinion that for a child to become a person the most important ingredient is ‚Äúwhen it has completely proceeded in a living state from the body of its mother‚ÄĚ. 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.‚ÄĚ
It‚Äôs important to note that that decision was made in 2005, five (5) years before the existence of Article 26 (2) of the Constitution. The law has clearly since changed with the promulgation of the new Constitutionin 2010!
The foregoing decision is therefore no longer good law and thus the need to test the criminal law on the issue one more time, if not for anything, to help in the further development of the Law.
II. LIFE BEGINS AT CONCEPTION: A PERSON INCLUDES A FOETUS UNDER THE CONSTITUTION
However, Article 26 of the Constitution of Kenya, 2010 (the repealed Constitution did not have an equivalent provision) seems to change the interpretation of whether or not a foetus can be unlawfully killed and therefore murdered if with the existence of malice aforethought.
The said Article is to the effect that:
‚Äú26 (1) Every person has the right to life.
(2) The life of a person begins at conception.‚ÄĚ
III. DEFINITION OF MURDER
A reading of Article 26(1) together with (2) is, in my view, to the effect therefore that a foetus is a person and that therefire the UNLAWFUL killing of a foetus amounts to the unlawful killing of a person as defined under section 203 of the Penal Code which reads:
‚Äú203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
It‚Äôs my view that Article 26 removes the limitation of section 214 as far as a person who can be killed is concerned. Article 26 does not distinguish age of persons but insists that life starts at conception. As such, even foetuses can be killed as per the Constitution.
IV. SUPREMACY OF THE CONSTITUTION
Article 2 (4) of the Constitution provides that:
‚ÄúAny law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.‚ÄĚ
Where therefore any section 214 of the Penal Code is to any extent in contravention with the provisions of the Constitution, and more particularly Article 26 of the Constitution herein, section 214 is unconstitutional to the extent of that contradiction. The Constitution is the Supreme Law of the Land!
Further, section 7 (1) of Part 2 of the Transitional and Consequential Provisions on Existing Obligations, Laws and Rights provides that ‚Äúall law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.‚ÄĚ
The Penal Code, and more specifically section 214 thereof falls within the prescription of the foregoing section 7(1) of the Transitional and Consequential provisions.
Section 214 of the Penal Code is therefore void to the extent that it gives a definition of a person capable of being killed which is in contravention with the definition of a person provided under Article 26(2) of the Constitution.
The other viable alternative also provided for under the Constitution (other than declaring it could for inconsistency with the Constitution is to construe the said section 214 of he Penal Code with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with Article 26 (2) of the Constituion.
Once the section is construed to the effect that a person includes any person from the time of conception, then the definition of murder under section 204 as read with section 204 of the Penal Code applies without any further need of amendment and or alteration.
Any person who therefore unlawfully kills a foetus, if with malice aforethought is guilty of the Offence of Murder!
(Disclaimer: This Write-up is my Personal View and not a Representation of any other Person or Office).