As Migori Governor Okoth Obado and his alleged accomplices face charges in relation to the killing of Rongo University student Sharon Otieno, the fact that she was pregnant adds a layer of legal intrigue.
Can a murder suspect be charged with killing an unborn baby if he is accused of murdering an expectant woman?
The seven-month pregnant Sharon was raped and stabbed eight times and her unborn baby killed on September 3. Obado was charged on Monday with aiding and abetting her murder.
Lawyers have differed on whether DPP Noordin Haji can sustain charges against the suspects for murder of the foetus.
Lawyer Shadrack Wambui says he can. He says from a constitutional perspective, as is in Article 26 of the constitution, life begins at conception. So if a foetus is killed, someone can be held to be responsible for that murder.
However, Wambui says the question that will then avail itself in the circumstances Obado finds himself in is whether he can be charged with two capital offences.
Usually, the practice of criminal law is that when one has been charged with more than one count of capital offence, the court suspends the other charges for the simple reason that one cannot die twice.
Wambui says although courts have always held the view, the prosecution can withdraw that one charge [murder of foetus] under Section 87 A of the Criminal Procedure Code, so that if he [Obado] is acquitted of the charge of Sharon’s murder, the possible scenario, then the DPP can bring another charge and prosecute for the murder of the foetus.
The lawyer says it is a question of discretion that the court and DPP have. The DPP does not lose it by charging right now only the offence of murder of Sharon.
“This is a catch-22 situation. He [Haji] can choose to assume it [foetus’ murder] for now or wait for the proceedings to take off and the ruling of the court. If the court holds him culpable or guilty of that offence [Sharon’s murder], then it will mean that if he will be convicted and sentenced to death, then there will be no wisdom in charging him for the second charge of the murder of the foetus,” he said.
“But if he is acquitted of this one, the DPP has all the legal rights to prefer another charge for the murder of that foetus. It arises from common sense. You see you cannot die twice but the Supreme Court has held that death sentence cannot be the only available sentence for the offence of murder. Therefore, one can be sentenced to life imprisonment or any other sentence the court will deem fit.”
NO MALICE AFORETHOUGHT
But lawyer Stanley Kang’ahi differed with Wambui. Kang’ahi argued that the death of a foetus in a woman’s womb can either be as an issue of abortion or state of miscarriage but can’t be murder.
“My understanding of death of foetus inside the womb is always a question of abortion and miscarriage or any other term, but definitely not murder. Murder in law has its precepts of malice aforethought and intention to kill. You must establish the intention that the person had against the unborn,” he said.
Kang’ahi argued that there is no conscience for a person to hold a grudge against an unborn to be said to have wanted to kill the unborn child. Therefore, proving murder of a foetus would be difficult.
But Wambui said proving murder of foetus is quite simple. He says prosecution only needs to prove an act [that led to the death] and that that act is the stabbing of the mother.
“A pathologist has to prove that this foetus is dead. Once we have an act that led to the death of a foetus then the DPP can charge you, get a conviction and a sentence against you for the murder of that foetus. It flows from logic that once an act has been done, which act can be linked to the death of that foetus, then the prosecution can be sustained and a case can be made,” he said.
“It flows from legal reasoning. When you do something, something else is likely to occur. By stabbing the mother and the child, death happens to be the result because you don’t expect to stab and kill the mother then sustain the child. An intention can be deduced from that act — by killing the mother, it is also logically reasonable to conclude that you also wanted to kill the child.”
Kangahi says although community organisations perceive that life begins at conception, the key ingredients you must satisfy in the charge of murder place the prosecution at a hard place.
He says the whole thing is a question of academic discussion. In the matters of criminal procedure, there is nothing tying any suspect, governor notwithstanding, to the death of foetus.
Kang’ahi says until the birth of a child, the foetus is still part of the mother; it is entirely dependent wholly on the mother. Therefore, it is obvious that it can’t be dissociated from the mother. He says there can’t be a complaint at the behest of the foetus suggesting that it was murdered because the law might not be able to prove the same.
“If you have an argument with someone over some money and five minutes later they are found dead not very far, then it is easier to conclude that the argument escalated and ended up in death,” he said.
“If a baby dies in the womb and causes the death of the mother, will you accuse the foetus of the death of the mother? If a doctor had a medical situation where he has to remove the foetus and it [removal] causes the death of the mother, would you link the death of the mother to the doctor?
“It was an inevitable medical condition that caused the death of the mother.”
Dr Joshua Matu said one can only be charged with murder of a foetus if the death occurred at a time when the foetus can survive without dependency on the mother. Dr Matu said a child must have attained a weight of 350g to be able to survive outside the mother’s system.
“If the mother is killed once the child has reached the point they can survive outside the mother’s system, then the suspects can be charged with murder of both the mother and the child. But if the death of the mother occurs at a time the child’s status per development is not compatible with life [without the mother], then that case is different altogether,” Dr Matu said.
“However, if the child has not developed to that particular stage — where they can survive even if the mother is killed, then you can be accused of killing both. The baby must be able to survive in an incubator or by their own if extracted from the mother.”
Public officers above 58 years and with pre-existing conditions told to work from home: The Standard
Head of Public Service Joseph Kinyua. [File, Standard]
In a document from Head of Public Service, Joseph Kinyua new measure have been outlined to curb the bulging spread of covid-19. Public officers with underlying health conditions and those who are over 58 years -a group that experts have classified as most vulnerable to the virus will be required to execute their duties from home.
However, the new rule excluded personnel in the security sector and other critical and essential services.
“All State and public officers with pre-existing medical conditions and/or aged 58 years and above serving in CSG5 (job group ‘S’) and below or their equivalents should forthwith work from home,” read the document,” read the document.
To ensure that those working from home deliver, the Public Service directs that there be clear assignments and targets tasked for the period designated and a clear reporting line to monitor and review work done.
SEE ALSO: Thinking inside the cardboard box for post-lockdown work stations
Others measures outlined in the document include the provision of personal protective equipment to staff, provision of sanitizers and access to washing facilities fitted with soap and water, temperature checks for all staff and clients entering public offices regular fumigation of office premises and vehicles and minimizing of visitors except by prior appointments.
Officers who contract the virus and come back to work after quarantine or isolation period will be required to follow specific directives such as obtaining clearance from the isolation facility certified by the designated persons indicating that the public officer is free and safe from Covid-19. The officer will also be required to stay away from duty station for a period of seven days after the date of medical certification.
“The period a public officer spends in quarantine or isolation due to Covid-19, shall be treated as sick leave and shall be subject to the Provisions of the Human Resource Policy and procedures Manual for the Public Service(May,2016),” read the document.
The service has also made discrimination and stigmatization an offence and has guaranteed those affected with the virus to receive adequate access to mental health and psychosocial supported offered by the government.
The new directives targeting the Public Services come at a time when Kenyans have increasingly shown lack of strict observance of the issued guidelines even as the number of positive Covid-19 cases skyrocket to 13,771 and leaving 238 dead as of today.
SEE ALSO: Working from home could be blessing in disguise for persons with disabilities
Principal Secretaries/ Accounting Officers will be personally responsible for effective enforcement and compliance of the current guidelines and any future directives issued to mitigate the spread of Covid-19.
Uhuru convenes summit to review rising Covid-19 cases: The Standard
President Uhuru Kenyatta (pictured) will on Friday, July 24, meet governors following the ballooning Covid-19 infections in recent days.
The session will among other things review the efficacy of the containment measures in place and review the impact of the phased easing of the restrictions, State House said in a statement.
This story is being updated.
SEE ALSO: Sakaja resigns from Covid-19 Senate committee, in court tomorrow
Drastic life changes affecting mental health
Kenya has been ranked 6th among African countries with the highest cases of depression, this has triggered anxiety by the World Health Organization (WHO), with 1.9 million people suffering from a form of mental conditions such as depression, substance abuse.
Globally, one in four people is affected by mental or neurological disorders at some point in their lives, this is according to the WHO.
Currently, around 450 million people suffer from such conditions, placing mental disorders among the leading causes of ill-health and disability worldwide.
The pandemic has also been known to cause significant distress, mostly affecting the state of one’s mental well-being.
Get breaking news on your Mobile as-it-happens. SMS ‘NEWS’ to 20153
With the spread of the COVID-19 pandemic attributed to the novel Coronavirus disease, millions have been affected globally with over 14 million infections and half a million deaths as to date. This has brought about uncertainty coupled with difficult situations, including job loss and the risk of contracting the deadly virus.
In Kenya the first Coronavirus case was reported in Nairobi by the Ministry of Health on the 12th March 2020. It was not until the government put in place precautionary measures including a curfew and lockdown (the latter having being lifted) due to an increase in the number of infections that people began feeling its effect both economically and socially.
A study by Dr. Habil Otanga, a Lecturer at the University of Nairobi, Department of Psychology says that such measures can in turn lead to surge in mental related illnesses including depression, feelings of confusion, anger and fear, and even substance abuse. It also brings with it a sense of boredom, loneliness, anger, isolation and frustration. In the post-quarantine/isolation period, loss of employment due to the depressed economy and the stigma around the disease are also likely to lead to mental health problems.
The Kenya National Bureau of Statistics (KNBS) states that at least 300,000 Kenyans have lost their jobs due to the Coronavirus pandemic between the period of January and March this year.
KNBC noted that the number of employed Kenyans plunged to 17.8 million as of March from 18.1 million people as compared to last year in December. The Report states that the unemployment rate in Kenya stands at 13.7 per cent as of March this year while it stood 12.4 per cent in December 2019.
Mama T (not her real name) is among millions of Kenyans who have been affected by containment measures put in place to curb the spread of the virus, either by losing their source of income or having to work under tough guidelines put in place by the MOH.
As young mother and an event organizer, she has found it hard to explain to her children why they cannot go to school or socialize freely with their peers as before.
“Sometimes it gets difficult as they do not understand what is happening due to their age, this at times becomes hard on me as they often think I am punishing them,”
Her contract was put on hold as no event or public gatherings can take place due to the pandemic. This has brought other challenges along with it, as she has to find means of fending for her family expenditures that including rent and food.
“I often wake up in the middle of the night with worries about my next move as the pandemic does not exhibit any signs of easing up,” she says. She adds that she has been forced to sort for manual jobs to keep her family afloat.
Ms. Mary Wahome, a Counseling Psychologist and Programs Director at ‘The Reason to Hope,’ in Karen, Nairobi says that such kind of drastic life changes have an adverse effect on one’s mental status including their family members and if not addressed early can lead to depression among other issues.
“We have had cases of people indulging in substance abuse to deal with the uncertainty and stress brought about by the pandemic, this in turn leads to dependence and also domestic abuse,”
Sam Njoroge , a waiter at a local hotel in Kiambu, has found himself indulging in substance abuse due to challenges he is facing after the hotel he was working in was closed down as it has not yet met the standards required by the MOH to open.
“My day starts at 6am where I go to a local pub, here I can get a drink for as little as Sh30, It makes me suppress the frustration I feel.” he says.
Sam is among the many who have found themselves in the same predicament and resulted to substance abuse finding ways to beat strict measures put in place by the government on the sale of alcohol so as to cope.
Mary says, situations like Sam’s are dangerous and if not addressed early can lead to serious complications, including addiction and dependency, violent behavior and also early death due to health complications.
She has, however, lauded the government for encouraging mental wellness and also launching the Psychological First Aid (PFA) guide in the wake of the virus putting emphasis on the three action principal of look, listen and link. “When we follow this it will be easy to identify an individual in distress and also offer assistance”.
Mary has urged anyone feeling the weight of the virus taking a toll on them not to hesitate but look for someone to talk to.
“You should not only seek help from a specialist but also talk to a friend, let them know what you are undergoing and how you feel, this will help ease their emotional stress and also find ways of dealing with the situation they are facing,” She added
Mary continued to stress on the need to perform frequent body exercises as a form of stress relief, reading and also taking advantage of this unfortunate COVID-19 period to engage in hobbies and talent development.
“Let people take this as an opportunity to kip fit, get in touch with one’s inner self and also engage in reading that would help expand their knowledge.