Judge should not have convicted abortion nurse

Last week, a High Court judge convicted a man of murder and sentenced him to death for unsuccessfully attempting to procure an abortion and causing the death of a pregnant woman.

Many in the health professions were surprised by the leap of logic employed by the learned judge in arriving at his decision, which will have serious implications for the practice of medicine and surgery.

The following were the “facts” he relied upon, and the conclusion he arrived at after summarising the evidence from the prosecution:

1. that the deceased person visited the Owino’s (sic);

2. that in the course of the visit the deceased, who was apparently pregnant; visited the clinic of the accused with the express intention of having her pregnancy terminated (emphasis mine);

3. that the accused assisted the deceased to procure abortion which led to excessive bleeding; thereby necessitating several attempts to salvage the deceased (emphasis mine);

4. the excess bleeding led to anaemia, which culminated in the patient’s death (sic);

5. that in the premises, malice-aforethought, an essential ingredient of the offence of murder under section 206 of the Penal Code, was thus established against the accused.

In other words, we see a person that allegedly had the express intention of having her pregnancy terminated and found a health professional who assisted her to procure an abortion.

Unfortunately, she allegedly bled excessively, developed anaemia, and died despite attempts of the clinician to salvage the deceased.

SAW MALICE

The learned judge saw malice aforethought in this scenario.

Malice aforethought, in the quaint language of the law, suggests to the layperson a degree of premeditation of a harmful act that may lead to death or injury.

It suggests evil intent when committing a particular act. It suggests, in the case of murder, a plan to kill someone unlawfully.

In law, however, one could reason, as the judge probably did, that the mere intent to commit a felony constitutes malice aforethought.

As defined in sections 158, 159 and 160 of the Penal Code, attempting to procure abortion is a felony sufficient to satisfy the requirements of section 206 of the Penal code.

Should it therefore result in death, one could indeed be charged with murder, and with sufficient evidence, be convicted of the same.

On the face of it, therefore, the judge was well within his rights to conclude that since the accused intended to procure an abortion, he had already committed a felony.

Secondly, since the intended felony resulted in death, a charge of murder could be sustained. But only just!

Section 240 of the same Penal Code removes criminal liability from a person “performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother’s life…”

The Constitution further allows the termination of a pregnancy when the mother’s health or life is at risk, in the opinion of a “trained health professional”.

Given that the accused person indicated that he was a trained health professional, and the procedures he carried out were intended to save the life of the deceased rather than kill her, it behoved the judge to give him the benefit of doubt and hold the prosecution to the high standard of proof beyond reasonable doubt.

For the sake of future clinician-patient interactions, this judgment needs to be set aside.

Dr Lukoye Atwoli is Consultant Psychiatrist and Dean, Moi University School of Medicine; [email protected]