INTRODUCTION

1.1 Background

This paper claims that the limitation of the right to life as provided for under Kenyan law[1] does not consider euthanasia as one way of limiting the right to life. Those opposed to the legalisation of euthanasia have argued that legalising euthanasia would see the death of nobility of medical practice and potentially expose vulnerable patients to abuse by those that care for them.[2] However, scholars such as Ronald Dworkin argue that euthanasia is the most logical and benevolent option for terminally ill patients in cases where a patient is competent to make that decision without state intervention.[3] In support of this, Dworkin argues that there exists nothing as personal as the physical and psychological suffering of an individual in the final moments of life.[4]

Although in various forms, euthanasia has been practiced for centuries, the re-emergence of the debate is partly the result of growing interest in human rights and awareness that modern medical science has created.[5]Therefore, the timing of death that was once solely a matter of fate is increasingly becoming a matter of human choice.[6] This leaves euthanasia as a topic of increasingly intense debate not just in Kenya but all over the globe.[7]

This paper critically analyses the place of euthanasia under Kenyan Law and in so doing it will interrogate the existing law in relation to the subject in question and the loopholes that require legal fixing. This paper will then conclude by providing reflection for further research.

1.2 Setting the Context

The taking away of a person’s life is expressly prohibited in Kenya, and the limitation of this prohibition is provided for under Article 26(3) of the Constitution of Kenya, 2010 which reads; “a person shall not be deprived of life intentionally except to the extent provided by law.” However, the notion of willful extinguishment of life for terminally ill patients is not properly taken care of by the law as there exists no elaborate provision of law to that effect.

The ambiguity of Kenyan law in regard to this area can be best analysed by way of examining the Constitution making process that gave birth to the new Constitution of Kenya 2010.[8] The Constitution of Kenya Review Act, 1997,[9] established the Commission that was tasked with the mandate of conducting civic education and creating public awareness on constitutional matters.[10]In its report, the Commission[11]stated that fundamental rights and freedoms under section 5 of the old Constitution,[12] including the right to life and liberty had no proper enforcement mechanism and therefore recommended that the new Constitution should have in it a guarantee of the right to life and a jealous protection of human dignity, as well as proper implementation mechanisms.[13]

The new Constitution at Article 26(1),[14] guarantees the right to life[15] and further provides for the limitation of the right to life at Article 26(3) as mentioned above. This limitation of the right to life has in the recent past been affirmed by the Kenyan courts. For instance in Republic v Dickson Mwangi Munene & another,[16] the accused persons were convicted for the offence of murder contrary to section 203 as read with section 204 of the Penal Code.[17] The high court in this case held that the Constitution has a basic principle of law which is the right to life. However the Constitution does not declare in absolute terms that the right to life should be enjoyed without any restrictions. The court further stated that Article 26(3) of the Constitution imposes an encumbrance to the right to life to the effect that it cannot be an absolute right, as it can be taken away or deprived through written law or in a manner indicated by the Constitution.[18] It follows then that the right to life in Kenya as guaranteed by Article 26 of the Constitution, is not an absolute right and can therefore be limited.

However euthanasia has no place under the scope of the limitation of the right to life. The Constitution in light of Article 26(3) and in the decision of Dickson Mwangi Munene above acknowledge that the right to life is not absolute and can be limited but only address itself to one means of limiting the right to life i.e. in case of a conviction for murder, only death penalty is imposed.

1.3 Statement problem

Kenyan Law does not provide for the taking away of human life by way of effecting euthanasia. The Constitution of Kenya 2010 provides for limitation of the right to life but does not encompass euthanasia as a limitation of the right to life.

1.4 Justification of the study

This paper derives its justification from the fact that although a lot of scholarly work has been done on this area, there is limited jurisprudence regarding the topic of euthanasia in Kenya. This paper aims to contribute to the increasing jurisprudence in human rights law by possibly encompassing voluntary exit clause in the right to life under Kenyan law.

1.5 Theoretical framework

At the center of this research paper is the theory of natural law among other theories. The Natural law theory bases human rights on natural, moral and religious order that is independent on transitory human rights.[19] It is a mode of thinking systematically about connections between cosmic order, morality and law.[20]The proponents of natural law theory are inherently opposed to the notion of willful extinguishment of life.[21]It is firmly held by them that God is the highest good and from him all things emerge,[22] and as such human beings live on the face of the earth as long as He (God) pleases and not as long as they please.[23] Therefore there exists no extenuating circumstance that permits the extinction of one’s own life.[24]

It is further argued that one cannot determine what law is without considering the moral or evaluative matters,[25]and as such, the decision about life and death have different dimensions that are moral and political in nature; autonomy, best interest and sanctity of life.[26] It follows then that proponents of euthanasia for terminally ill patients often appeal to the principle of individual autonomy.[27] This they argue should be effected only when such a decision is not founded on irrationality.[28] Individual autonomy, as will be discussed in chapter two, is validated by consent; the patient must be able to exercise free will without coercion or deceit arising from either a medical practitioner or even family members who might be financially constrained.[29] The foundation of this is the universal notion that each individual has the right to make the most intimate and personal choices central to personal dignity and autonomy.[30]

The concept of intrinsic value of human life that informs the naturalist idea of rejecting euthanasia is seen to be justifying the notion of that sanctity of human life.[31] The Roman Catholic Church holds the firm view that respect for life is a non-negotiable issue,[32] for life does not belong to man, but God and the gift of life must be afforded absolute respect from the time of inception until natural exit.[33] Similarly, John Locke, held the view that human life is the property not of the person living that life, who is only a tenant, but of God; so that suicide is a kind of theft or embezzlement.[34]

This paper will borrow heavily from natural rights theorists and examine the connection between the two theories (Natural Law theory and Natural Rights theory) in relation to the idea of willful extinguishment of life. As will be noted, Natural rights approach down plays a view of society as a whole except as a function of individuals and their rights.[35] It views the society as an organic entity but still refers to individual rights basically what is worthwhile for a man in his individual capacity.[36] The contrast between these two theories is that natural law theory tends towards discussions of an individual whereas natural rights theory tends towards discussions of individual liberties.[37]Based on the notion of individual liberty shared by Ronald Dworkin; individuals have the right to make the most intimate and personal choices central to personal dignity and autonomy,[38] for the morality of an action as described by Emmanuel Kant depends on fulfillment of a duty;[39] this right encompasses some control over the time and manner of one’s death.[40]Therefore, the state cannot burden terminally ill patient’s liberty interest in determining the time and manner of his death.[41]In evaluating the above theories, emphasis will be placed on whether they are inclined in one way or the other, to permit the notion of willfully opting out of life as a result of terminal illness.

1.6 Literature review

What is euthanasia? This has been defined as the act or practice of causing or hastening the death of a person who suffers from incurable or terminal disease or condition for reasons of mercy.[42]As regards the idea of extinguishment of life or willful opting out of life, not much has been said with confidence, unless it is said from faith,[43] and that alone Dworkin argues is reason enough to protect the freedom to conform choices about death to individual conscience.[44]

A lot of scholarly work has been done crediting and discrediting the notion of euthanasia. However most of this work is not Kenyan work. Majority of this work has been done by European and American Scholars.

There is a secular as well as religious interpretation of the idea that human life is sacred.[45] The conviction that human life is sacred perhaps provides the most powerful emotional basis for resisting euthanasia.[46] However based on human dignity, individual freedom and autonomy, the Republics of Canada and South Africa have freely embraced euthanasia for terminally ill patients.

Euthanasia for terminally ill patients revolves around sensitive issues; individual’s free choice, religious thoughts and government’s authority to protect life and to intervene.[47]Therefore, if the government places a lot of emphasis on intervention in matters that heavily rests on the province of individual autonomy, then many other rights are infringed upon.[48] This is because individual autonomy is understood to refer to the capacity to be one’s own person and command one’s life according to his/her own desires and not from the command of external forces such as the government or societal view towards something.[49] So then, when an individual’s autonomy is restricted, then liberty becomes a restricted right because the decision making autonomy of an individual now rest with the state that regulates the same.

In the case of Nancy Cruzan –v- Director, Missouri Department of Health,[50] the US Supreme Court was faced with two competing interests; the state’s duty to protect life and individual autonomy. Nancy Cruzan was a 25 year old married woman in the United States and lived a vibrant life, however, she had an automobile accident that resulted in a persistent vegetative state.[51] Before her death, she was kept in hospital for nearly seven years and in her vegetative state. During this time, very high medical technology was used to sustain the most of her rudimentary biological processes.[52] Nancy’s parents engaged in a prolonged legal struggle that ended up in the Supreme court of the United States, seeking a court order to have Nancy Cruzan’s feeding tube removed so that their daughter could die in peace and avoid the uncalled for pain. However Nancy Cruzan’s parents were met with a totally different view to the effect that life in any condition sustained in whatever means is of absolute value, and therefore any attempt to extinguish Nancy Cruzan’s life would be illegal.[53] The legal question before the court was whether an individual has the right to die.[54] Even though the Missouri courts at the time had recognised that any competent person has the right to refuse treatment as part of the doctrine of informed consent,[55] Nancy Cruzan’s case was of a different kind as she was a vegetarian and could not give consent. The Missouri court demanded for convincing evidence to the effect that the patient made prior arrangements as to how he/she would like to end her life be adduced. For making decisions on behalf of an incompetent patient is not permissible.[56] It is in light of this strict requirement that Justice Brennan[57] in his opinion held the view that even someone who has a resolute determination to avoid life support would still need to know that such thing as living wills exists and how to execute one.[58] As per Justice Brennan, the concept of will making and making clear one’s wishes to the effect of how he/she wish to die in the event that he/she become vegetable is important. Therefore, Nancy Cruzan in Justice Brennan’s opinion should have made it clear in her will as to how her life should end. That way, then her right of individual autonomy would override any other interest.[59]

Since the Nancy Cruzan case, the world has since taken mercy upon terminally ill patients and tolerance on the topic of euthanasia has become the modern day philosophy. In Robert James Stransham-Ford –vs- Minister for Justice and Correctional Services,[60] the Republic of South Africa through its high court officially acknowledged that euthanasia has a place in its legal system.

In this case the Applicant was male Advocate of the High Court of South Africa. The Applicant at the time of the proceedings was at terminal stage 4 of cancer and had only a few weeks of his life to exhaust. He however died on the day the judgment was pronounced by the court. The Applicant relied heavily on human dignity and the right to die in dignity. The court was of the view that the major role of a medical practitioner is to ensure that the quality and dignity of life of a patient. And therefore, the secondary result such as death or hastening of death is exactly the same in both instances and this still fall within the preview of human dignity. The court finally held that given the condition and quality of life of the Applicant, the Applicant was entitled to be assisted by a qualified doctor who is so willing to end his life by administration of a lethal agent or by providing the Applicant with a lethal agent to administer by himself.

Similarly in Carter -vs- The Attorney General of Canada,[61] the Supreme Court of Canada held that criminal law prohibiting assistance in dying, limited the rights to life, liberty and security of an individual under section 7 of the Canadian Charter of Rights and Freedoms. Gloria Taylor in 2009 was diagnosed with Amyotrophic lateral sclerosis and months after the diagnosis, she was informed by her doctors that she would be paralysed within duration for precisely six months. She decided to challenge the prohibition on assisted suicide along with British Columbia Civil Liberties.[62] The Court was of the view that such prohibition interfere with liberty by constraining the ability of such individuals to make decisions concerning their bodily integrity and medical care thus subjecting such persons to unnecessary suffering.[63]

It follows then that the world is accepting willful opting out of life, a subject that was once unquestionable.

1.7 Objectives of the research

The primary aim of this research is to discuss euthanasia in Kenyan legal system. This paper therefore seeks to establish a balance between individual right of self-autonomy and the extent to which the same can be asserted and on the other hand government obligation to intervene in light of the notion of sanctity of life and the protection of human life.

The general objective of this research is to therefore strike a balance between consideration of morality in light of the right to die in dignity and the law.

1.8 Hypothesis

The study shall be based on the following assumptions:

1. That the right to individual autonomy interrelates with other rights and does not exist as a stand-alone right.

2. That there is a limit to government’s responsibility to intervene in matters central to an individual or private person.

1.9 Research questions

The study seeks to answer the following questions:

1. Why is Kenyan law not addressing the question of euthanasia?

2. Does the Kenyan moral foundation permit euthanasia?

3. To What extent can the state refuse effect euthanasia for terminally ill persons?

4. Who has the authority to give valid consent for euthanasia in cases of vegetative patients?

1.1.0 Research methodology

This research is qualitative. The primary method of data collection is documentary; documentary process involves conceptualising and assessing of documents that touches on the topic of euthanasia. Collection of data is from various sources such as internet, international and local journals, text books and other academic writings, various local and international reports published by human rights organizations.

1.1.1 Chapter breakdown

This paper consists of six chapters.; Chapter two will discuss in depth the theoretical and conceptual framework of euthanasia; this will be achieved by way of discussing the theories and concepts (namely individual autonomy, human dignity and sanctity of life) introduced at chapter one.

Chapter three will discuss in depth the literature review. Various scholarly both for and against euthanasia will be critically evaluated. Chapter four will then discuss the Kenyan case. Chapter four will bring to light the Kenyan scenario and how adequate or inadequate Kenyan laws responds to the question of euthanasia for terminally ill patients.

Chapter five of this paper will place a lot of emphasis on the comparative case study from different jurisdictions, so as to establish the gradual growth of the idea of euthanasia and why Kenyan people at this day and era should embrace euthanasia.

Chapter six shall discuss the recommendations based on the comparative case study of practice of different jurisdictions and conclude by providing reflections for further research

CHAPTER TWO

DYING AND LIVING: THEORETICAL AND CONCEPTUAL UNDERPININGS

2.0 Introduction

The inherent right to life is a universally accepted concept.[64]It has been argued by Ronald Dworkin that there exists nothing as personal as the physical and psychological suffering of an individual in his final moments of life and as such, in the event that the state decides to intervene by way of making rules that guide the making of personal decisions as regards the extreme suffering of an individual, then it is only fair to provide moral justification for such kind of intervention.[65]

This chapter will discuss and interrogate the various theories that credit and discredit euthanasia. Of importance is that this chapter will examine important concepts such as individual autonomy, intrinsic value of human life and sanctity of life. Under theoretical framework, emphasis shall be placed on the major theories that have been used to either legitimise or discredit the notion of willful extinction of life for terminally patients. Among the theories that shall form the subject of this chapter shall be, natural rights theory, natural law theory as well as the utilitarian theory.

Focus thereafter shall be shifted to the conceptual framework. Under this, various concepts such as the intrinsic value of human life, the sanctity of life, human dignity as well as self-autonomy shall be the focus of discussion.

2.1.0 DYING AND LIVING: THEORETICAL UNDERPININGS

2.1.2 Overview

Various schools of thoughts have been used either to credit or discredit euthanasia. Scholars such as Dworkin who attempt to explain why euthanasia should be permitted often appeal to Natural rights theory and that way, they take comfort in discussing the human liberty, autonomy, dignity and self-interest as a basis for their justification.[66] On the other hand, opposing theorists such as Thomas Aquinas oppose euthanasia and use Natural law to discredit willful opting out of life.[67] They argue that life is God given and must be allowed to expire at God’s divine Will.

2.1.3 Natural Rights Theory

Natural Rights theory could be the oldest theory of rights.[68] This theory treats human rights as being corollary to natural rights.[69] Often natural rights theory is derived from nature and its proponents maintain that it can be discovered from moral intuition and simple application of human faculty of reasoning.[70] It posits that rights are simply not granted by the state but instead are inherent in the nature of mankind as intrinsic beings,[71] and for that reason alone, mankind enjoyed certain rights in the state of nature before the dawn of civil society.[72] It is therefore incumbent upon the state to jealously safeguard these rights at the expense of restricting them.[73] It is from this that Ronald Dworkin advances an argument of self-autonomy to the effect that individuals of normal competence have the right to autonomy; the right to make important decisions defining their own lives.[74] The recognition of an individual’s natural right of autonomy Dworkin argues makes self-creation possible, as it allows each person a chance to be responsible for shaping life according to an individual’s own distinctive personality.[75] Natural rights theory can therefore be said to be defining or establishing the space of individuals in the society,[76] for it has always downplayed the view of society as a whole except as a function of individuals and their rights.[77]

From Dworkin’s argument of self-creation and the ability to make important decisions that define the future of an individual seemingly permits an individual to do with his personhood whatever he/she pleases for his/her good. Natural law theory therefore posits that individuals should be autonomous in making decisions that define their lives and any other regulation that seeks to limit or restrict this right must not be permitted to exist.

2.1.4 Natural Law Theory

Natural law is inherently hostile to the notion of willful extinction of life.[78]This is because it is based on an idealistic metaphysics in which stasis is a defining nature.[79] Natural law theorists such as Thomas Aquinas believe that the law cannot be properly interpreted without considering the moral values that aspires the law.[80] Human life, they argue, is the property not of the person living that life, but of God, so that suicide is a kind of embezzlement or theft of God’s property and therefore any living person is just but a tenant of that life.[81] Given its constant reference to God, natural law theory in its form and approach is unreservedly influenced by religious beliefs particularly the beliefs of the Roman Catholic Church.[82]

The Roman Catholic Church holds a firm position that life is a holy gift from God and its preservation must be done jealously; willful opting out of life under any circumstance is not permitted and the affirmation of the concept of sanctity of life is a non-negotiable issue.[83]

As regards the question of euthanasia, Pope John Paul II in his teachings held the firm view that euthanasia is a grave violation of the law of God for it amounts to deliberate and morally unacceptable killing of a human person.[84]This doctrine he affirmed is based upon the written word of God and is transmitted by the church as taught by the ordinary and universal Magisterium.[85]

Natural law theory therefore seeks to establish a compromise between a will approach and a reason approach,[86] and from this they argue that actions are intrinsically good or bad but mankind is only obliged to pursue the good for such is the command of God.[87] There are two forms of acts regarding human existence according to natural law theory;[88] the interior which refers to human intention and the exterior act which refers to human action.[89]. According to Thomas Aquinas, both are of equal importance and as such, both must result into good.[90] Natural law can therefore be said to be immune to the doctrine of double effect, for no bad is permitted, only the good must prevail under any circumstance.[91]

2.1.5 Utilitarian theory

Utilitarianism posits that an action is right in so far as it maximizes the general utility, which John Stuart Mills describe as happiness.[92] Utilitarian theorist such as Bentham and Mill argue that pleasure and pain often motivate human actions, and therefore the advancement of happiness is the test by which to judge all human conduct.[93]

Euthanasia, it has been argued to be a social remedy for suffering patients and other collaterals such as socio-economic costs of the disease.[94] On the other hand, Utilitarian theorists argue that intent has no bearing on a decision and as such what determines what is good and what is wrong is the net outcome of an action;[95] this positions the ultimate goal of an action as the maximization of pleasure and minimization of pain.[96] The utilitarian perspective in its very nature requires an individual to make a prediction about the future and weigh the outcomes of events that have not yet occurred so as to be able to make right decisions under any circumstance.[97] Euthanasia is argued by utilitarian theorists to be permissible in extreme circumstance upon showing that it is a source of pleasure or a way of avoiding pointless pain or suffering.[98] However the utilitarian perspective fails to offer a plausible moral justification due to lack of regard to an individual’s personal and emotional condition.[99] For instance, an action is not qualified as right because it makes some one happy, for it is not right to harm an individual to make others happy.[100]

2.2.0 DYING AND LIVING CONCEPTUAL UNDERPININGS

2.3.1 An Overview

Life has numerous competing interests and values. In many instances, courts are called upon to balance these interests and values. As regards the subject of euthanasia, strong scholarly arguments have been advanced for self-autonomy and the dignity of a patient that is suffering from irremediable medical condition and on the other hand the concept of sanctity of life and the need to protect vulnerable patients constantly conflicts with death with dignity and autonomy and many a times seeks to restrict the use of euthanasia as a way of affirming dignity and autonomy of one’s self.

2.3.2 Concept of Dignity and Best Interest

The freedom of conscience and the right to dignity and to have that dignity respected requires that every competent person has the right to make momentous personal decisions which relate to fundamental religious convictions about his/her very own life.[101]

Dignity has been defined as a source of an individual’s rights to freedoms and to physical integrity, from which a number of other rights flow, such as the right to bodily integrity.[102] This definition has since gained judicial prominence as courts seem to agree with it. For instance in the decision of Advance Mining Hydraulics (Pty) Ltd & Others –vs- Botes N.O & Others,[103] a South African Court held that human dignity is not only a justiciable and enforceable right that must be respected and protected, it is also a value that informs the interpretation of possibly other fundamental rights. Similarly in the decision of Bernstein & Others vs Bester & Others[104] the South African High Court held that dignity has a close relationship with other rights so much so that when it is denied then a long chain of human rights are gravely violated.

Everyone has a right to dignity and the right to have that dignity respected and protected;[105] for every person is born free with equal rights and dignity.[106] Human dignity besides being a value and a right, is also a categorical imperative,[107] as it is a constitutional requirement that is jealously safeguarded by the Constitution of Kenya, 2010.[108] Whereas it is argued that the right to life is the fulcrum of all other rights, and that it is the fountain through which other rights flow,[109] it has to be taken into account that it is not just the right to life that the Constitution cherishes, it is the right to share the experience of humanity that defines the right to life.[110] This is founded on the basis that the law seeks to create a society where the value of each individual is recognized and treasured.[111] The right to life thus is to be understood to incorporate human dignity.[112] In Robert James Stransham-Ford –vs- Minister for Correctional Services & 3 Others[113]the South African Constitutional Court held that the right to life is central to the existence of any person but the right to life is more than just mere existence, it is a right to be treated as a human being with dignity; without dignity, human life is substantially diminished.

The subject of dignity in relation to euthanasia is a complex one, for one is bound to rope in moral questions. It has been argued that dying is essentially part of life, and euthanasia for terminally ill patients is a way of dignifying death.[114]

As argued in the Robert James Stransham-Ford case, it is usually in the best interest of a terminally ill patient to willfully opt out of life to fundamentally avoid suffering the indignity of severe pain. And as such the choice of a patient to die in such a way is consistent with an open and democratic society. Therefore there is no duty to live, and an individual suffering the indignity of pain can waive his right to life.[115]

2.3.3 The concept of autonomy

The question of legal standing of euthanasia is involves complex issues;[116] that is, what importance should be attached to the principle of individual autonomy and what importance should be attached to the ethical consequences of effecting euthanasia.[117]

Individual autonomy has been defined as that aspect that encourages and protects people’s general capacity to lead their lives out of distinctive sense of their own character, a sense of what is important to and for them.[118] Scholars such as Ronald Dworkin holds the view that the argument for individual autonomy is very compelling;[119] as it requires that one be allowed to run his life even when he behaves in a way that he himself would accept as not at all in his interest.[120] This scenario that is commonly referred to as “weakness of the will” holds that in as much as the integrity of autonomy does not assume that competent people have consistent values or are always bound to make consistent choices, an individual’s personal decision must be respected by all means and standards.[121] The concept of autonomy therefore translates to the aspect of allowing or respecting individual’s decisions even when it is believed that those decisions are not in the best interests of the persons making them.[122] Respect for people’s decisions is justified by what is referred to as evidentiary view;[123] evidentiary view holds that decisions made by a person deserves absolute respect even when such decisions are regarded as being imprudent, for each person generally knows what is in his best interest better than any other person.[124] It follows then that the concept of autonomy makes self-creation possible, as it advocates for each person to be responsible for shaping his/her own life at the expense of being led through life. This allows anyone to choose death over amputation or even blood transfusion.[125]

2.3.4 Sanctity of human life

The conviction that human life is sacred has been used by the opponents of euthanasia as the most powerful emotional basis for resisting euthanasia.[126] Opponents of euthanasia argue that human life has in it intrinsic value, and therefore any attempt to extinguish life amounts to unimaginable abuse of that value attached to life.[127] This value they argue, justifies the idea of sanctity of life.[128] Most often, the appeal of sanctity of life takes the image of property so that it is argued that an individual’s life belongs to God.[129] John Locke opined that human life is the product of the divine work of God and life belongs to Him.[130]Man therefore has the privilege to live as long as God pleases for man is just but a tenant of that life he is living.[131] An individual according to John Locke is obliged not to opt out of life for it is a gift from God.[132]

It has been argued that life gains its intrinsic value from the ability to experience, and this value is not reducible to physical but the physical contains the potential for these experiences.[133] For instance pain suffered by a patient on his spinal cord which is a physical part of his inflicts psychological pain in his mind.[134] The psychological pain suffered by the patient is therefore considered to be the non-physical experience.[135]

2.3.5 Conclusion

Having interrogated the various theories and their prejudices, it is apparent that euthanasia is not a modern day creation of liberal thoughts. Whereas, the sanctity and intrinsic value of life is the foundation of the emotional defense often mounted by those who oppose euthanasia, this seems to ignore the welfare and the personal endurance of pain and suffering of a terminally ill people. It is the pain and suffering endured by persons suffering from terminal illness that individual liberty and autonomy to make decisions flow from.

CHAPTER THREE

RELIGIOUS AND PHILOSOPHICAL PERSPECTIVES OF EUTHANASIA

3.1 Overview of the Chapter

In every society, death is a topical issue.[136] Today, the debate about euthanasia has been fueled by the advent of medical technology and the availability and use of artificial measures to prolong life.[137] With the aid of advanced medical developments, doctors command technology that keeps people who are starring at the kiss of death alive for several days, months or even years.[138] Even though availability or even the existence of these medical technologies has been the fulcrum of the discussions about euthanasia, the debate about euthanasia itself raises moral, ethical, philosophical, religious and legal issues.[139] Given that death has been a changing concept though the years, a number of factors must be taken into account before euthanasia is injected into the discussion of death. These factors include; death related behavior of an individual, life history of the person particularly his attitude towards living and dying, and the influence of both religious and ethical beliefs of the person concerned.[140] This chapter will interrogate various literatures by various scholars who discuss moral, philosophical, medical and legal aspects of euthanasia and by extension the grounds of justification of euthanasia as well as the grounds that discredit euthanasia.

3.2 Introduction

Proponents of euthanasia often argue that the use of medical technology to prolong life may not be ideal for a terminally ill patient, since the foundation of human existence is not life per se, but a quality life.[141] This argument is premised upon the fact that a doctor’s duty is not just limited to treatment of the patient but such duty extends to providing the patient with a better quality of life.[142] In particular instances, a doctor may not be able to contain the pain suffered by a patient, particularly terminally ill patients,[143] it is at this point that it is argued that the condition of life has deteriorated and the quality of life is not any better[144] and therefore it falls within the exclusive province of the best interest of the patient to be euthanised upon request; which request must be based on free and uncompromised consent.[145] This leaves euthanasia as a contemporary issue in the jurisprudence of life.[146] It is therefore argued by proponents of euthanasia that to leave someone in a state of pain is tantamount to condemning an individual to endure a life time suffering that by all standards lowers the quality of that person’s life.[147]

3.3.0 RELIGIOUS PERSPECTIVE ON THE SUBJECT OF EUTHANASIA FOR TERMINALLY ILL PATIENTS

3.3.1 A Christian Perspective of euthanasia for terminally ill people

The Church holds the view that euthanasia is not a genuine expression of faith in God and is a denial of God’s presence and power.[148] Christian opposition against euthanasia is fueled by the notion of intrinsic value of human being as discussed in chapter two of this paper. According to Christian values and believes, the value of human life is central to purpose of human existence and such that the dignity and value of mankind cannot be measured by mobility, intelligence and achievement in life.[149]

The Christian community holds the belief that human life is valued at the same footing, no life regardless of the status is to be seen as worthless.[150] This then means that a patient in a persistent vegetative state remains a human being and their intrinsic value remains the same as anyone else.[151]Following this, Christians hold that it wrong to treat the lives of terminally ill patients as worthless.[152]The Roman Catholic Church frowns upon euthanasia, abortion and divorce.[153]The Catholic Church is of the view that life is a holy gift from God and taking it away under any circumstance is not permitted.[154] The Anglican Church holds the same position but offers an alternative and argues that palliative medical care would be an appropriate alternative.[155] The problem with palliative medical care is that it overlooks the financial consequences that might burden the family members of a terminally ill patient. Further, palliative medical care argument also assumes that every individual can afford the expensive medical care or that the palliative medical attention can be offered by the government at a cheap price and such services are readily available in every hospital.

Even though the Anglican Church is opposed to euthanasia, Desmond Tutu, a retired Anglican Arch Bishop has openly called for euthanasia in 2016.[156] Bishop Desmond Tutu who has been in and out of hospital from time to time has expressly stated that he wish to be euthanized if circumstances call for that action. He stated that should he be terminally ill, he wish to be treated with compassion and be allowed to pass on to the next phase of life’s journey in a manner and means of his own choice.[157] Euthanasia, he argued can provide immeasurable comfort for those suffering unbearably.[158] This might be controversial given Bishop Desmond Tutu’s status in the Christian society. However, Bishop Desmond Tutu is not a stranger to controversy; he is an outspoken defender of gay rights and in 2013 publicly declared that he will not go to homophobic heaven.[159] Later in early 2016, before he publicly declared his stance on the topic of euthanasia, he publicly blessed the marriage of his daughter to her female partner,[160] disregarding the Anglican Church’s dictates about same sex marriage.

3.3.2 A Muslim Perspective of termination of human life on Account of Terminal Illness

On the other hand, the Muslim faith is opposed to euthanasia;[161] just like the Christian faith,[162] the Muslims argue that God is the creator and it is only Him who has the exclusive authority to take life at His own time and discretion.[163] Muslim faith holds that no matter how precarious a patient’s condition may be, there is always hope for survival.[164] Christians on the other hand hold that hope will never disappoint believers.[165] Islamic faith just like Christian faith, upholds the sanctity of life.[166]Islam holds the belief that human beings are God’s vicegerent.[167] Islamic faith further holds that Human being has been afforded respect by God and in exchange, human being must be ready to exercise endurance and patients in the face of life challenges.[168] Muslim scholars such as Malik argues that the Muslim faith provides a cohesive social system and a set of rules that keep the community in a warm relationship and this in the end creates a warm and peaceful atmosphere where every individual feels a sense of belonging and feel supported.[169] In cases of terminally ill persons, Malik argues that this support system carries with it duties of maintenance, compassion and kindness.[170]If these notions are understood properly, then an adherent of Muslim faith would not contemplate committing suicide regardless of his/her condition.[171]

Muslim faith has since drawn a line between active and passive euthanasia.[172]Passive euthanasia is described as an act of withholding the necessary and extraordinary medical treatment from a terminally ill patient hence allowing the patient to die.[173] Whereas active euthanasia as described as death of a terminally ill patient by act.[174] A physician’s act causes terminally ill person to die intentionally for reasons of mercy.[175] According to Islam, the Qur’an provides commandments that frown upon killing of innocent beings and on the other hand, sunnah, a collection of Islamic traditions formulating Islamic approach to medication, generally discourage medical treatment in a particular way.[176] So then it has been argued that there are those traditions that allow a patient to refuse medication.This however has been a subject of debate among Muslim jurists as some scholars such as Hanafi and Maliki are of the view that medical treatment is permitted whereas scholars such as al-Qadi, Ibn ‘Aqiland Ibn al-Jawzi are of the view that medical treatment can be withheld if it is foreseeable that there is no certainty that the said treatment will be of no good.[177]

Therefore on the permissibility of the suspension of treatment, al-Qaradawi is of the view that suspension of medical treatment by way of preventing the patient from due medication is permitted and is even recommended and as such, a physician can do the same for the sake of the patient and the patient’s family.[178]Abdul – Aziz bin Abdullah bin Baz is of the view that the removal of a life support machine will only be justified under the following circumstances;[179]

a. If the sick patient has been taken to hospital and is dead, if the patient’s condition is not fit for resuscitation according to the opinion of three trustworthy specialists’ doctors.

b. If the patient is incapacitated or is in a persistent vegetative state and chronically ill.

c. If the patient’s sickness is chronic and untreatable according to a trustworthy specialist doctor.

d. If there is any indication that the patient has brain injury that cannot be treated.

e. If according to the report of three trustworthy medical specialist doctor and if reviving the heart and lungs is of no benefit.

According to the Islamic faith from the above, euthanasia is not prohibited per se, one can be justified in requesting for euthanasia and the same request be granted upon meeting the above set minimum standard for justification.

3.3.3 A Hindu Perspective of euthanasia for terminally ill people

In the Hindu religion, all living creatures are considered to represent a profound manifestation of the laws of karmic rebirth.[180]Karma is defined as what determines the nature of the next life of a person.[181]Itis proscribes the net consequence of good and bad doings in an individual’s life.[182] To honor karma, one must endeavor to show great respect for the preservation of life and non-injury of sentient beings.[183]Hinduscholars such as Professor Deepak Sarma argue that extinguishing life on any ground would negatively impact on their karma.[184] Further, acts that are destructive of life are frowned upon by the principle of ahimsa which is the conceptual equivalent of the Western principle of sanctity of life.

As general rule Hinduism oppose suicide as an act of destroying life for suicide according to the religion puts an individual’s spiritual clock reverse.[185] Therefore it is a Hindu belief that palliative treatment is impermissible if the same reduces mental alertness.[186] Therefore, an ideal death is that which is conscious.[187] This then binds a qualified medical practitioner not to accept a patient’s request for euthanasia since this is tantamount to separating the body and soul at unnatural time.[188] This position is founded on the Hindu teachings of Hima (do no harm to human).[189] This then means that when an individual is under a life support machine, he must be left until such a time that natural or biological death materialize. This Hindu position just like the Christian approach makes many assumptions. For instance, the financial constrains involved, individual autonomy of a person as well as an individual’s right to decide what is in his best interest.[190]

3.4 PHILOSOPHICAL PERSPECTIVE ON THE SUBJECT OF EUTHANASIA FOR TERMINALLY ILL PATIENTS

Whether a society will accept without rejection the notion of willful termination of life is a consideration that must be taken into account before introducing euthanasia debate of euthanasia into a society.[191]This is a question that every natural law proponent will always front when battling with the subject of euthanasia given their consistent philosophical arguments against euthanasia.[192] Natural law theory precepts the general rule that man is forbidden to do that which is destructive of his life or take away the means of preserving the same and to omit that by which he thinks it may be best preserved.[193] Viewing life in this way, individual liberty is disregarded and an individual is perceived not to have the autonomy to make a decision in his best interest that is likely to extinguish his/her life. This affords credit to Thomas Hobbes view of laying down of rights by an individual; an individual divesting himself of his liberty, simply renouncing his right so as to be advanced and protected by another man (council of rulers); hence the notion of governments obligation to protect human life.

Thomas Aquinas does not opine directly that euthanasia is wrong but advances three reasons which according to him are supreme reasons as to why no man should opt out of life willfully.[194] First Aquinas argues that suicide is contrary to natural law and to charity.[195] Under this limb of argument, Aquinas maintains that everything naturally loves itself and as a result, everything keeps itself into being and as such suicide becomes a sin.[196] Secondly, Aquinas argues that suicide of whatever nature is an injury to the common good reason being that every man is part of the community and as such suicide becomes an injury to the community by way of dissociating one from the community upon death.[197] Lastly Aquinas is of the view that life is a gift from God and as such, whoever extinguishes life is offending God’s divine work.[198]

Natural law however, is problematic in its form and approach for the simple reason that it is designed in a mono-directional way such that it descends from the High Heavens or from other external abstractions that no man has the locus to question.[199] This in the end overrides the very nature of individual liberty and self-autonomy by demanding that man submit to external abstractions that undemocratically define the limits individual rights.[200] Wesley Smith has consistently maintained that natural law is anti-democratic in as far as euthanasia is concerned; he argues that natural death as propounded by natural law theory is increasingly promoting bad death if it involves suffering and discomfort.[201] Therefore in effect, Aquinas’s point of view in the end is likely to expose a terminally ill patient to a life time suffering that can be equated to condemnation to pain in the name of waiting for natural death.[202]

Ronald Dworkin on the other hand is enthusiastic about individual liberty as a basis of decision making in matters that are so central to an individual’s existence.[203]He argues that decision that are so central to the existence of a person such as life and death, the person primarily concerned should be the sole decision maker as soon as the time to exit life manifests itself.[204] This he maintains enables a terminally ill patient to decide what falls within his or her best interest.[205]

Even though the conviction that human life is sacred provides an emotional basis for resisting euthanasia,[206] Dworkin is of the view that there is a secular as well as religious interception of the idea of human life being sacred.[207] This interception can be argued to be the point at which a terminally ill patient reserves all the rights to decide whether or not accept an induced exit to life despite all the religious and moral prejudices surrounding the situation.[208]

Dworkin’s arguments notwithstanding, it has been a long standing assumption that states are constitutionally entitled to preserve life,[209] and in so doing, the state is presumed to have inherent powers to preclude an individual from taking away his/her life.[210] However, in the present times, numerous competent patients who are terminally ill plead to be afforded a dignified death by way of euthanasia on a daily basis.[211]However, this plea can only be successful in the event that it is made by competent individuals who understand the repercussions of the decisions they make at that material time.[212] In the decision of Nancy Cruzan v Director, Health Missouri Health Department,[213]the Applicant Nancy Cruzan was in a vegetative state at the time the suite was being litigated in court on her behalf by her parents. Her vegetative state made it practically impossible to secure her express consent for purposes of effecting euthanasia on her. The court held that given her status, euthanasia on her would only be permissible in the event that she explicitly recorded an equivalent of a will stating how she wished to exit life.[214] The court upheld the states legitimate interest of protecting and preserving human life.[215] This may justify why the state may force a patient to go through compulsory medication so as to safe his/her life. Dworkin however argues that that such forced medication infringes upon the province of personal dignity and self-autonomy.[216]

Immanuel Kant on the other hand aims to provide a structure for making right decisions under any circumstance.[217] Kant argue that love is inherently a life supporting force and an act of terminating life does not come from the right intent to be considered moral.[218] According to Kant, every man has a duty unto himself, which duty is the underlying role of morality.[219] To Kant, duty and intention combine to form a will and as such the only thing in the world is good will.[220] He in the long run concludes that suicide or even euthanasia is wrong due to the fact that self-love can never be tied to death.[221] The problem with Kant is that he does not have regard to an individual’s personal and emotional stance in a situation such as the decision regarding euthanasia.[222] Both Kant believe that personal feelings should not have a bearing on personal decisions.[223] A major flaw in Kantian approach is the assumption that self-love cannot be tied to death.[224] Proponents of euthanasia have argued that one only does dignity to himself or herself because of self-love therefore the continuous prolonging of life of a patient who is in unbearable pain amounts to doing indignity thus defying the notion of self-love.[225] So then Kant has not successfully established a disconnect between self-love and loss of life. Secondly Kant’s argument suffers a blow because it requires one to predetermine the outcome of an act or omission and weigh it against the greater good of the society. This creates an utter disregard for an individual’s personal and emotional stance on a situation.[226]

3.5 Conclusion

The numerous existing literature interrogating the legality of euthanasia all seem to be revolving around two main dimensions of human existence individual liberty and autonomy and societal perception of what is morally right or wrong. Scholars who advance the notion of individual liberty such Ronald Dworkin maintain that an individual’s decision making about life and death should not be guided by what the society perceive to be right.[227] Dworkin is heavily influenced by Natural Rights theory which posits that individual liberties existed long before civil societies came to be.[228] All that time personal preferences existed and the liberty to elect what one preferred was not limited, as such there is no justification for the limitation of individual liberty after the emergence of civil societies.

Even though Thomas Aquinas does not discuss euthanasia directly,[229] he appeals to the masses and he maintains that no individual has the right over himself and therefore self-destruction has no place within the limited liberties of man. Thomas Aquinas argument of lack of control over one’s self seems to be flawed. This is because individual liberties existed long even before the emergence of civil societies according to Natural rights theory.[230] Therefore the claim that an adherence to mono-directional command should override an individual’s capacity to make personal decision cannot stand.

Similarly, one difficulty with the utilitarian approach is that it is more result oriented than securing the comfort of the patient.[231] Therefore if the act of terminating life through euthanasia is to be measured by the overall consequence or result then there will be no protection for the patient against the majority who may be medical practitioners together with the family members of the patients who may be financial constrained.[232] This may lead to abuse of vulnerable patients who may be euthanised without their consent for purposes of achieving a result that may be aimed at relieving the family members of the patient from financial burden. Therefore following this it is clear that utilitarianism does not safeguard personal rights.[233]

CHAPTER FOUR

DIGNIFIED EXIT: A COMPARATIVE JURISPRIDENCE

4.1 Introduction

Legalisation of euthanasia for terminally ill patients is an area of intense debate all over the world.[234] Even as the debate continues, some countries such as Canada, South Africa and Netherlands among others, have endeavored to legalize euthanasia for terminally ill patients.[235] As a preliminary point of consideration, the right to life with dignity implies that one is allowed to live a dignified life without arbitrary restriction that would have the potential of offending human dignity.[236] However, one important aspect to this debate that must be reflected upon is why would it be thought that a terminally ill patient by virtue of being alive could be enjoying the indignity of pain in his bed?[237] In responding to the tough subject of dignity, South African courts have argued that human dignity is the objective and normative value system that is established by law.[238]

4.2 Overview of the Chapter

This chapter will interrogate the jurisprudence drawn from different countries that has been developed to respond to the subject of euthanasia. This comparison will be drawn from countries such as Canada, South Africa and India. This comparative study shall provide the framework for critiquing the Kenyan case and also the basis of recommendations that Kenya should embrace euthanasia for terminally ill patients.

4.3 Dignified Exit: A Canadian Perspective

Canada for a long time allowed patients the right to refuse treatment but not to demand euthanasia.[239] In 1994 however, the Canadian government appointed the Canadian Special Senate Select Committee on Euthanasia and Assisted Suicide to investigate and make recommendation relating to laws that would regulate euthanasia for terminally ill patients. The committee prepared a report titled “Of life and Death.” In the report, the majority of the committee members recommended that no alteration should be made to laws prohibiting euthanasia at the time.[240] The committee justified this recommendation by stating that it was not practically possible to formulate adequate safeguards to ensure that free and voluntary consent of a patient is secured so as to avert abuse of vulnerable patients from medical practitioners or even family members.[241]

However significant steps have since been made in as far as legalisation of euthanasia in Canada is concerned. In Rodreguez vs Attorney General for British Columbia,[242] a patient who suffered from a progressive neuron disease applied for a declaratory order to be allowed to die citing her condition as unbearable. She could not speak or move even though she was mentally competent to give consent.[243] Her condition notwithstanding, the Canadian Courts declined to grant the application maintaining that in matters euthanasia, the interest of the state to protect life prevails over individual interest.

Later in the year 2015, the decision of Lee Carter v Canada (Attorney General of British Columbia),[244] revisited and overturned the decision of Rodriguez v. Attorney General of British Columbia. In the case of Lee Carter, the British Columbia Civil Liberties Association (referred to as BCCLA hereinafter) instituted a law suit challenging section 14 and 241(b) of the Criminal Code of Canada, which provisions of law expressly prohibited suicide or the act of aiding the same.[245]In this case, the court took issues with section 7 of the Canadian Charter of rights provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice?[246]

The legal question before the court was whether the prohibition of extinguishing life in cases of terminal illness with the consent of the patient, overrides the right to life, liberty and security of a person.[247]The court in its decision was categorical in stating that such prohibition deny people who are terminally ill the right to make decisions concerning their bodily integrity and medical care and as such, the same touches on their personal liberty and by extension leaving them to endure intolerable suffering and impinges on their security of person.[248] The Court further discussed the need of the deprivation of life, liberty or security of the person to be in accord with the principles of fundamental justice and not arbitrariness and gross disproportionality. On this account, the Supreme Court of Canada found that the prohibition of euthanasia for terminally ill people limits the right to liberty and the security of the person.[249]

The Court in arriving at this decision held that if at all the limitations pronounced in the case of Rodriguez are anything to stand by, and then such can only stand if they are reasonable and demonstrably justifiable pursuant to section 1 of the Canadian Charter of Rights.[250] Before the Supreme Court of Canada parted ways with this momentous decision, it declared section 14 and section 241(b) of the Criminal Code invalid is so far as they prohibit euthanasia for competent persons who have clearly consented to termination of life and has grievous medical condition that is irremediable.[251]

Following this land mark decision by the Canadian Supreme Court, a message was sent not only to the territorial jurisdiction of the Court but also to other jurisdictions to be guided by the decisions.[252] This is for the benefit of safeguarding the liberty and the security of individuals who find themselves in the unfortunate state of affairs of terminal illness.[253]

4.4 Euthanasia for Terminally ill Patients: A Dutch Perspective

The Dutch define euthanasia as an action that aims at taking the life of another person upon that person’s express request.[254] The Dutch refer to this as a life terminating treatment.[255] In Netherlands however, killing or assisting another person to kill himself is punishable by law.[256]

The Dutch Medical Association in 1984 published a report that led to a publication of “Guidelines for Euthanasia, 1988” that set out procedures and guidelines of effecting euthanasia by medical practitioners on terminally ill patients.[257] Later in 1990, the Dutch Minister for Justice together with the Dutch Medical Association, agreed that a doctor shall be required to prepare and submit a report to a public prosecutor who may ask the police to initiate an investigation for purposes of the prosecution of the doctor in the event that the Guidelines for Euthanasia are not observed as required.[258]

In 2002, the Dutch formally legalised euthanasia through a legislation; The Dutch Termination of Life on Request and Assisted Suicide (Review Procedures) Act, 2002. This Act of Parliament proscribes procedures that must be observed before euthanasia is effected.[259] These procedures include, the request for euthanasia must come from a patient enduring unbearable pain with no reasonable prospects of recovery or improvement, and the request must be made with full conviction of the patient and without coercion.[260] The doctor however has no absolute duty to perform or effect euthanasia as patients do not have absolute right to euthanasia.[261] The Dutch law therefore permits the defense of necessity as a justification for euthanasia.[262] Necessity in this case refers to the patient’s unbearable condition which invites the doctor to give blind eye to the law in the name of doing the higher good to the patient.[263]

4.5 Euthanasia: A South African Perspective

The debate about euthanasia in South Africa is not a modern day debate. It began even before South Africa attained independence from the British colonial rule in 1994. In 1973, the South African Law Commission was established by the South African Law Commission Act, 1973 to prepare a report from where the government would consider whether it was an appropriate thing to legalise euthanasia for terminally ill patients.[264] The central question at the time was whether the South African community would freely embrace a request for euthanasia as reasonable or unreasonable where consent is freely given by a mentally competent person with full knowledge and understanding of the extent, nature and consequences of such consent.[265]

Upon a careful consideration of religious and moral objections to euthanasia as well as liberal arguments for euthanasia in South Africa, the Commission made several recommendations to the effect that there was need to enact legislation to give full effect to the following principles;

a. That a medical practitioner may under specified circumstance, cease or authorise the cessation of further medical treatment of a patient whose life functions are being maintained artificially while the person has no spontaneous respiratory and circulatory functions or where his or her brain system does not register any impulse.

b. That a competent person may refuse any life sustaining medical treatment with regard to any specific illness from which he/she may be suffering, even though such refusal may cause death or even hasten the death of such a person.

c. That a medical practitioner may relieve the suffering of a terminally ill patient by prescribing sufficient drugs to control the pain of the patient adequately even though the secondary effect of this conduct may be the shortening of the patient’s life.

d. That a medical practitioner may under specified circumstances, give effect to an advance directive or enduring power of attorney of a patient regarding the refusal or cessation of medical treatment or the administering of palliative care, provided that these instructions have been issued by the patient while mentally competent.

Despite having made these recommendations, euthanasia for terminally ill patients remained to be a crime punishable by law in South Africa until 2015.[266] Despite the fact that the commendations were not implemented as was intended, the Constitution of South Africa of 1995 entrenched a progressive Bill of Rights that recognised human dignity,[267] individual liberty[268] and security of a person.[269] It is from the Constitution of 1995 in Bill of Rights framework that euthanasia for terminally ill persons found a breath of life. The interpretation of the Bill of Rights, the South African Courts have held the view that there exists a close relationship between human dignity, privacy of a person and individual freedom to make personal decisions.[270] This has led to a systematic and consistent appreciation of the value and worth of individuals in the South African society.[271] As a result of this, the courts in South Africa have often exercised caution when interpreting the provisions of the Bill of Rights,[272] the priority to the courts being jealous protection of personal liberty, human dignity and personal security.[273] Fundamentally the South African courts have consistently held that human dignity is not only a justiciable enforceable by a court of law and a right that must at all times be respected and protected, but also a value that informs the interpretation of possibly all other fundamental rights and it is further of central significance in limitations inquiry.[274]

Despite all these legal protection on the person of South African citizens, euthanasia for terminally ill persons was still prohibited until the year 2015.[275] However, the withdrawal of a life sustaining treatment would be allowed even though such action may directly contribute to the death of that patient.[276]

The courts have in the recent past made a breakthrough and finally legalised euthanasia for terminally ill patients. In the landmark case of Robert James Stransham - Ford vs Minister for Correctional Services & 3 others,[277] the court found that the concept of human life is the at the center of South African Constitutional values, and thus the right to life incorporates the right to dignity. In this case, the applicant, a South African lawyer had for a long time suffered from lymph node cancer. During this time he suffered great pain and he had no hope of recovery. The legal question before the court was whether it was conceivable that the health of a person may deteriorate to a level where he would be justified in wishing to take it his own life away. The court considered the indignity the applicant had suffered and the kind of suffering he was subjected to by the laws prohibiting euthanasia in South Africa. In making the determination, the court arrived at the conclusion that the common law crimes of murder or culpable homicide in the context of euthanasia for terminally ill patients is in so far as they provide for an absolute prohibition of administration of euthanasia, they unjustifiably limits the constitutional right to dignity,[278] freedom to bodily and psychological integrity.[279]

The court further pronounced itself to the effect that the right to life is more than existence, and so one must be treated as a human being with dignity for without dignity, human life is substantially diminished. The court concluded that the laws prohibiting the administration of euthanasia for terminally ill patients offends the Bill of Rights and as such, termination of of human life on grounds of terminal illness is permitted in South Africa upon express consent of the patient and with the voluntary assistance of a medical doctor.

4.6 Dignified Exit: An Indian Perspective

The right to life in India is viewed as the existence of life from the beginning to the tail end of natural life which is natural death.[280]This then means that the right to life includes the right to live with dignity but unnatural termination of life has no place in the Indian society.[281] The Indian Constitution provides for the right to life at Article 21.[282]This however just like the Kenyan Constitution[283] does not provide for the right to die.[284] Over the years, Indians have struggled with the question of euthanasia and from the inception of their Constitution in 1950, the first time the Indian Courts were seized with the question of euthanasia was in the year 1989 in the case of State of Maharashtra v Maruty Sripati Dubal.[285]

In this case State of Maharashtra v Maruty Sripati Dubal,[286] the court declared that the right to life by extension includes the right to die. The contest in this case was whether section 309 of the Penal Code,[287]which criminalized suicide or an attempt to commit suicide was constitutional. The Court upon scrutiny of the whole scenario surrounding this case found this statutory provision to be unconstitutional. However, in 1996, the Supreme Court of India in the decision of Gian Kaur v State of Punjab,[288] held that the right to life does not encompass the right to die or to be killed under whatever circumstances. The court was categorical in stating that the right to life is a natural right and no one has the right or even the authority to end his/her life before its natural end.[289]

Indian later in 2011, the courts took another convincing approach to the question of euthanasia when the Supreme Court in Aruna Ramchandra Shanbaug vs Union of India,[290] the court held that euthanasia for terminally ill patients is legal in India. In this case, the petitioner was a nurse at King Edward Memorial Hospital (referred to as “KEMH” herein after) in Mumbai.[291]On the 27^th November 1973, she was attacked by a sweeper in the same hospital in what later appeared to be sexual abuse.[292] Her attacker wrapped a dog chain around her neck and attempted to rape her. In the process, the attacker realized that his victim was ovulating and then opted to sodomise her. To make her immobile, the attacker twisted the chain so hard around her neck. She was found in an unconscious condition lying on the floor with blood all over. As a result of the strangulation, she had shortage of oxygen supply to her brain and subsequently had brain damage.[293]Since then, she lost her senses and only survived on mashed food. She could not move her legs, head or even hands. Doctors at KEMH reported that there were no reasonable prospects of her surviving the condition. In court it was prayed that KEMH be ordered to stop feeding her so as to allow her to die in peace.[294]

Issues raised before court were whether it was legally permissible to withhold or withdraw life sustaining therapies when a person is in a Permanent Vegetative State (referred to as “PVS” herein after) and whether if a patient has previously expressed a wish not to have a life sustaining treatment in case of futile care or a PVS then that wish should be respected.[295] The Court however held that Mrs. Aruna was not brain dead as was pleaded because she could still breathe without life support machine even though she was in a PVS, her condition was stable and therefore terminating her life was unjustified. The Supreme Court of India was hesitant to grant the orders sought but legalised euthanasia subject to approval of the High Court.

4.7 Conclusion

Euthanasia for terminally ill patients even though has been frowned upon in various jurisdictions has found legitimacy in the present days. It is slowly asserting itself in various jurisdictions of the world either by way of legislation or court adjudication. The justifications have always been the need to respect and protect the dignity, autonomy and liberty of patients to make decisions by without limitations. In countries where euthanasia is legalised, there exists a carefully considered procedure which essentially revolves around the welfare of the patient. These includes; the express consent of the patient, the patients understanding of the possible repercussion of his/her request as well as the need to understand that it has to be done by a qualified doctor who is willing to assist effect euthanasia on the patient.

CHAPTER FIVE

DYING AND LIVING: A KENYAN PERSPECTIVE OF EUTHANASIA FOR TERMINALLY ILL PEOPLE

5.1 Introduction

The need for confidentiality as required by medical profession ethics is based upon trust, which is the basis upon patient doctor relationship.[296] This founds a meaning of a patient upon opening up to his/her doctor, he/she gains a legitimate expectation that his doctor will bound by medical professional ethics never to let out sensitive information about his life, secrets relating to his/her disease as well as personal history in relation to his/her disease.[297] This then founds a presumption that a doctor will only use the information strictly for the good of the patient and nothing to the contrary of the patient’s good.[298]

Given the fact that there exists no concrete law that governs or regulates end of life issues in Kenyan hospitals in the form of euthanasia for terminally ill patients or Do Not Resuscitate medallion (referred to as “DNR” herein after), this chapter will discuss the place of euthanasia under the Kenyan legal framework. This chapter further demonstrate the gap in the law that leaves terminally ill patients and medical practitioners in a difficult situation such that no patient can ascertain the limits of his autonomy and how to best safeguard his/she inherent right to dignity as enshrined under Article 27 of the Constitution.

5.2 THE PLACE OF EUTHANASIA UNDER KENYAN LEGAL FRAMEWORK

The Kenyan Constitution has been pronounced as one of the most progressive municipal legal instrument in the world.[299] The Bill of Rights under the Kenyan Constitution outlines guiding principles regulating social coexistence and human rights in Kenya.[300] Article 26(3) of the Constitution[301] provides a limitation clause of the Right to life; this is to the effect that the right to life shall not be limited except to the extent authorized by law.[302] This limitation is expounded under section 203 as read with section 204 of the Penal Code which provides that any person, who with malice aforethought commits murder, shall be sentenced to death.[303] This is one express instance in which one can be deprived of life upon pronouncement by a competent court of law. This creates the impression that an individual’s right to life may be limited only upon being found guilty of murder. This however does not fall within the province of an individual’s liberty to make a decision of self-destruction in circumstances of deterioration of a happy and normal state of life.

The question of whether one’s health can deteriorate to a point that self-destruction is justifiable with the assistance of medical practitioner is not yet acceptable in Kenyan society.[304] This thus results into a professional and ethical dilemma for Kenyan medical practitioners whenever a situation that may call for euthanasia manifests itself.[305] Professional and ethical dilemma in this context is understood as the gap between professional obligations and responsibilities of heath care professionals, and efficacy of health care system.[306] The Kenya Medical Practitioners and Dentists Board (referred to as “KMPD” herein after), a body charged with governing and regulating the conduct of medical practitioners in Kenya, has in the past held that euthanasia is a criminal offense and has no space in the Kenyan Medical practice.[307]

Whereas the right to life under Article 26(3) of the Constitution of Kenya guarantees the limitation of the right to life, euthanasia is not expressly recognized as one such way of ending life in an open and democratic society. In consequence, doctors have opposed legalization of euthanasia. The primary reason being that the Hippocratic Oath medical practitioners take is meant to protect life and not to end or extinguish life.[308]

The Kenya National Patients’ Rights Charter[309] (referred to as “KNPRC” herein after) guarantees patients the right to the highest attainable standards and quality of health care at Article 5. This affirms the Constitutional provisions of Article 43 that requires that every individual is entitled to the right of access to proper and acceptable health standards. Article 6 of the KNPRC further affords patients the right to refuse treatment. This may have a close relation with euthanasia for terminally ill patients in the form of rejecting lifesaving machines or even lifesaving therapies which would later results to death of the patient. This notwithstanding, the initiation of death in whatever form is frowned upon by Kenyan laws and may lead to criminal prosecution.[310]

Section 226 of the Penal Code prohibits suicide of any form or nature; it provides that any person who attempts to kill himself is guilty of a misdemeanor and that any person who procures another to kill himself or counsels another to kill himself or aids another in killing himself is guilty of a felony and is liable to imprisonment for life. Should it therefore be evidenced that refusal of treatment is calculated to achieve death in Kenya, then such can potentially be classified as suicide or even aiding suicide in the face of section 226 of the Penal Code.[311]

5.3 Conclusion

Kenyan Law prohibits suicide and any attempt to effect suicide attracts a legal consequence of life imprisonment.[312] Given the silence in the law, there is need for the establishment of a legal framework that sets out the importance and justifications for the legalisation of euthanasia for terminally ill patients. This way, patients who are terminally ill will no longer have to wait for their deaths in the bed of condemnation in the name of waiting for natural death.

CHAPTER SIX

FINDINGS, CONCLUSIONS AND RECOMMENDATIONS

6.1 Introduction

Having interrogated the position of Kenyan law relating to euthanasia for terminally ill patients, it emerges that Kenyan law is silent either by way of intentional omission or lack of anticipation of euthanasia as a humane way of exiting life. This paper suggests that position taken by countries that have permitted the administration of euthanasia for terminally ill patients such as South Africa,[313] Canada[314] and Netherlands[315] should be instructive to Kenya as will be discussed in the findings section below.

6.2 Findings

It has been argued in this paper that the foundation of human existence is not just being alive but the ability to appreciate the quality of life.^{^[316]} Euthanasia has been practiced in various forms for centuries.[317] Therefore, the re-emergence of the debate about euthanasia is as a result of vast development of medical science and growth in the field of human rights.^{^[318]} The timing of death therefore has now become the matter of human choice.^{^[319]}

Even though the Kenyan Constitution provides for the right to life,^{^[320]} this right is not absolute.^{^[321]} Further, whereas the Bill of Rights under the Constitution of Kenya is a progressive tool that provides for one immense human rights protection, it can be said that the drafters of the Constitution did not anticipate a scenario of euthanasia being a serious issue that should have been included within the framework of human rights under the Bill of Rights.^{^[322]}

The conviction that human life is sacred provides an emotional basis for mounting a rejection against euthanasia.[323] It has to be understood however that there is a secular and religious intersection of the sacred nature of human life.[324] Human dignity, individual freedom/liberty and autonomy form that intersection.^{^[325]} The argument about intrinsic value of human life as advanced by religious people only appeals to the masses based upon religious convictions held by the majority.^{^[326]} This interestingly fails to acknowledge the individual suffering undergone by a terminally ill person and the kind of psychological suffering one is subjected to by reason of having knowledge that they cannot exercise their individual liberty to make personal decisions. The freedom of conscience, the right to inherent dignity and the right to have that dignity respected cannot be complete when competent people are constrained by statutory provisions to the exercise of liberty and personal autonomy as provided by the Constitution.^{^[327]} The law in its very nature seeks to establish a society where the value of each individual is recognized and protected.^{^[328]} The right to life therefore, is the fulcrum of all other rights and therefore the right to life is not just about living. The right to life incorporates the ability to share the experiences of humanity.^{^[329]} This experience cannot be realized without regard to human dignity. Human dignity is a constitutional imperative. It is a constitutional requirement that is jealously safeguarded by the Constitution of Kenya 2010.^{^[330]}

6.3Conclusions

The ability to appreciate possession of life flows from the ability to make the most personal decisions central to an individual.^{^[331]} The notion of government intervention through statutory provisions offends the very nature of individual liberty and autonomy to make personal decisions. The Constitution of Kenya, 2010 is designed to respect and protect individual rights.^{^[332]} The silence of the law therefore should not at the very least be a hindrance to the full exercise of individual liberty and further public or religious opinion should not be a basis for determining that which is right for an individual and that which should be done by an individual in exercise of personal liberty and autonomy.

In any event, the government’s intervention by way of limiting ways of exiting life is in itself discriminatory. Whereas the Christian community as discussed in chapter 3 frowns upon willful extinguishment of life, the Muslim community has a guideline that justifies the taking away in particular instances. This blanket limitation in the name of government intervention favors the Christian faith in regard to their belief about euthanasia for terminally ill patients to the disadvantage of the Muslim community. This is because as discussed in Chapter three of this paper, the Muslim faith has a clearly defined guideline drawn from Sharia law of how and when euthanasia is to be administered on a patient. Advancing the views of one religion in regard to a matter of this magnitude to the disadvantage of another religion is clearly in conflict with Article 8 of the Constitution of Kenya which provides that there shall be no state religion.

6.4 Recommendations

Despite the fact that the Kenyan Constitution provides for the protection of individual rights as entrenched under the Bill of Rights,[333] there is need to have these rights interpreted conjunctively to give effect to personal liberty and autonomy in making decisions about life and death. This paper recommends that the decision about life and death should be viewed as a personal and private affair that must never invite legitimization from the court of public opinion.[334]

This paper further recommends that the National Assembly should exercise its Constitutional duty of legislation and enact an Act of Parliament (e.g. Termination of Life and Assisted Suicide Act) that will give full effect to the administration of euthanasia for terminally ill patients.

This Act must provide a carefully considered legal framework that takes into account the following recommendations as captured by the South African Law Commission:-

a. That a medical practitioner may under specified circumstance, cease or authorize the cessation of further medical treatment of a patient whose life functions are being maintained artificially while the person has no spontaneous respiratory and circulatory functions or where his or her brain system does not register any impulse.

Statutory guidelines similar to the one suggested above, will in effect strengthen the case for euthanasia for terminally ill patients in Kenya. The Kenyan Constitution, 2010 having entrenched a progressive Bill of Rights that aims at ensuring that the highest attainable standards of human rights protection is achieved, the debate about euthanasia should be one of general public interest reconsideration. This is founded of the fact that euthanasia for a terminally ill patient is about that individual undergoing pain in his/her death bed and not about those that have not had a taste of terminal illness.[335] This paper therefore recommends that by reason of the doctrine of territorial nexus, Kenya should embrace the South African and Canadian interpretation of the provisions of the Bill of Rights relating to human dignity and personal liberty. That way euthanasia for terminally ill patients will cement a place in the Kenyan legal framework with much more ease.

SELECTED BIBLIOGRAPHY

7.1 Books

Dworkin R, “Freedoms Law; The Moral Reading of the American Constitution” (Harvard University Press, Cambridge Massachusetts 1996).
Dworkin R, “Life’s Dominion: The Moral Reading of the American Constitution (1996 Harvard University Press, Cambridge Massachusetts 1996).
Omony O., Key Issues in Jurisprudence: An in depth discourse on Jurisprudence Problems (Law Africa Publishing (K) Ltd).
Perekh H. P, Human Rights Year Book,” (Universal Law Publishing Co. 2010) 197
Coleman J, Shapiro S, “The Oxford Handbook of Jurisprudence and philosophy of Law (Oxford University Press).
Hart H L.A, “Are there any Natural Rights in Human Rights?” (Melden A.I ed. 1994)
Crisp R., A good Death: Who best to Bring It? (1 Bioethics ISSN0269-9702 74)
Finis J. “Natural Law and Natural Rights” (2^ndedn. Oxford University Press)
Finnis J: “Moral, Political and Legal Theory.” (Oxford: oxford university Press, 199)
Gomez-Lobo, Alfonso, Morality and the Human Goods: An Introduction to Natural Law Ethics,” (George Town University Press) 2002
CrosbyR., “The Falsehood of the Human Person, Washington DC: (The Catholic University Press 1996).
Emmanuel, Linda, Regulating How to Die, Cambridge: (Harvard University Press 1998).

7.2 Journals

Ian Harris, “Ethics and Euthanasia: Natural Law Philosophy and Latent Utilitarianism” (Australia Association for Professional and Applied Ethics 12^th Annual Conference 28-30 September 2005, Adelaide).
Nicholas Orago, “A Gender Perspective of Socio - Economic Rights under the 2010 Constitution of Kenya: A Mirage or a Path towards Women Empowerment”(Judiciary Watch report Vol. 10).
Richard Smith, The Right to Death,” The New York review of Books, Vol. 38, No 6, 28 1991.
Pope John Paul II, “The Vatican Declaration on Euthanasia” (1980).
John Keown, “The case against Euthanasia and Physician Assisted Suicide: For the right to Life.” (2003) CLJ 545.
Michael Freeman, “Denying Death its Dominion: Thoughts on Diana Pretty Case.” (2002).
John Coggon, “The Wonder of Euthanasia: A debate that is being done to Death.” (2013) MLR 401.
Michael P. Zuckert, ‘Do Natural Rights Derive From Natural Law?’ Harvard Journal of Lawn and Policy, 20 (1997), 695.
Michael Freeman, Dying Death its Dominion: Thoughts on Diane Pretty Case” [2002] MLR 245.
Stephen W. Smith, Evidence for the Practical Slippery slope in the Debate on Physician assisted Suicide and Euthanasia.” [2005] MLR 17.
Markwell, Hazel, “End of Life: a Catholic View,” Lancet, Vol. 366: September 24, 2005: 1132-1135.
Little, Miles, “Assisted Suicide, Suffering, the Meaning of Life,” Theoretical Medicine and Bioethics, Vol. 20; 1999: 287-298.
Nussbaum, Martha, Compassion: The Basic Social Emotion,” Social Philosophy and policy, Vol. 13(1), 1996:27-58.

7.3 Online Sources

26. https://www.washingtonpost.com/world/asia_pacific/tragic-case-prompts-india-to-adopt-a-law-permitting-passive-euthanasia/2015/01/03/5e33beb3-caf4-4e2a-bbc6-abfd29a17c9f_story.html?utm_term=.522a83fd3444.

27. https://www.lawctopus.com/academike/aruna-ramchandra-shanbaug-v-union-of-india-case-analysis/.

28. https://www.kenyans.co.ke/news/doctors-urged-stop-mercy-killing (accessed 28/5/2017).

29. www.christianitytoday.com/history/people/theologians/thomas-aquinas.html. (Accessed 2^nd September 2017).

30. https://stpeterslist.com/aquinas-on-suicide-3-reasons-it-is-unlawful-to-kill-oneself (Accessed 5th August 2017).

31. http://www.macathconf.org/message_to_the_sick_and_suffering.htm: 1-5

32. http://euthanasia.procon.org/view.source.php?sourceID=000664

33. https://www.bartleby.com/essay/Kants-Theory-of-Deontology-and-Euthanasia-PK6EJYYVC (Accessed 7th August 2017).

34. https://www.bartleby.com/essay/Kants-Theory-of-Deontology-and-Euthanasia-PK6EJYYVC (Accessed 7th August 2017).

35. http://www.markedbyteachers.com/as-and-a-level/religious-studies-and-philosophy/to-what-extent-would-a-follower-of-natural-law-allow-euthanasia.html (accessed June 19, 2017).

36. https://www.bartleby.com/essay/Kants-Theory-of-Deontology-and-Euthanasia-PK6EJYYVC (Accessed 7th August 2017).

37. https://www.bartleby.com/essay/Kants-Theory-of-Deontology-and-Euthanasia-PK6EJYYVC (Accessed 7th August 2017).

38. https://www.lawctopus.com/academike/aruna-ramchandra-shanbaug-v-union-of-india-case-analysis/. (Accessed August 27, 2017).

[1] Art. 26(3), Constitution of Kenya, 2010.

[2]https://www.kenyans.co.ke/news/doctors-urged-stop-mercy-killing (accessed 28/5/2017)

[3] Jeremy W. Wilson, Debating Voluntary Human Adult Euthanasia (2011, Vol. 3 No. 08)

[4] Ian Harris, Ethics and Euthanasia: Natural Law Philosophy and latent Utilitarianism (Australian Association for Professional and Applied Ethics 12^th Annual Conference 28-30 September 2005, Adelaide).

[5]Ibid.

[6]Robert James Stransham – Ford v Minister for Correctional Services & others (Case No. 27401/15)

[7]Leenen “The development of euthanasia in The Netherlands” 2001 European Journal of Health Law. (“Leenen”) p.125. See Lourens Botha Grové, Framework for the Implementation of Euthanasia in South Africa (LLM thesis, University of Pretoria 2007).

[8] Promulgated on the 8^thAugust 2010.

[9] No. 13 of 1997.

[10] Section 10, Constitution of Kenya Review Act No. 13 of 1997.

[11] The Final Report of the Constitution of Kenya Review Commission, Final Draft (Approved for issue at the 95^th Plenary Meeting of the Constitution of Kenya Review Commission Held on the 10^th February 2005) p.g 107.

[12] Constitution of Kenya, 1963 (Amended in 2008).

[13] Constitution of Kenya Review Commission, “The Final Report of the Constitution of Kenya Review Commission.” (CKRC) 2005.

[14] Constitution of Kenya, 2010.

[15] Art. 26, Constitution of Kenya 2010.

[16] [2011] eKLR

[17] Chapter 63 Laws of Kenya.

[18] Per Warsame J.

[19]Pravin H. Perekh, Human Rights Year Book, (2010, Universal Law Publishing Co. 2010) 197; see also Ogbewekon R. Osaretin, “Counter Terrorism and Human Rights: An Analysis of Nigerian Government’s Response to Boko Haram (LLB Thesis).

[20] Jules Coleman, Scott Shapiro, The Oxford Handbook of Jurisprudence and philosophy of Law (Oxford University Press).

[21]Ibid.

[22] Ibid.

[23] John Locke, Second Treatise of Government (Last amended 2008).

[24]Ibid.

[25] Ronald Dworkin, A Reply by Ronald Dworkin’, in Ronald Dworkin & Contemporary Jurisprudence, ed. Marshall Cohen (Totowa, N.J.: Rowman & Allanheld, 1983), 247, 262. See Joseph Raz, Legal Principles and Nature of the Law’, in Ronald Dworkin & Contemporary Jurisprudence, 73, 84 – 5; Joseph, Postema on Law’s Autonomy and Public Practical Reason: A Critical Comment’, Legal Theory, 4 (1998), 1.

[26] Ibid.

[27] Ian Harris, Ethics and Euthanasia: Natural Law Philosophy and Latent Utilitarianism. P.g 190; Hill Thomas E. Jr., ed., Autonomy and Resect, (Cambridge: Cambridge University Press) 1991: John Keeown, Luke Gormally, Human dignity, Autonomy and Mentally incapacitated patients: A critique of decides, Web Journal of current Legal Issues, 4, 1999: John F. Crossby, The Selfhood of Human Person (Washington D.C: The Catholic University of America Press 1996. [Crossby (2)]; KupczakJaroslaw, Destined for Liberty: The Human Person in the Philosophy of Karol Wojtyla/Pope John Paul II (Washington D.C Catholic University of America Press) 2000. Bruce Vodiga, Euthanasia and the Right to Die – Moral Ethical and Legal Perspectives” [1974] Chicago – Kent Law Review: Kassane David, Case Presentation: A case of Euthanasia, The Northern Territory, Australia,” and “The Challenge of Informed Consent,” Journal of Pain and Symptom Management, Vol. 19(6); June 2000:472 – 474: Little Mile, Assisted Suicide, Suffering and Meaning of Life,” A Theoretical Medicine and Bioethics, Vol. 20; 1999: 287 – 298.

[28] Ronald Dworkin, Life’s Dominion; An Argument About Abortion, Euthanasia and Individual Freedom (1994 Vintage Books edition).

[29]Ronald Dworkin, Freedoms Law: The Moral Reading of the American Constitution (Oxford University Press UK 1999). P.g 133.

[30] Ronald Dworkin, Assisted Suicide, The Philosophers Brief (March 27, 1997 Issue).

[31] John Locke, Second Treatise on Government (Last amended 2008).

[32]Markwell Hazel, “End of Life: A catholic view,” Lancet, Vol. 366: September 24, 2005: 1132 – 1135.Alfred Hoche, Allowing the Destruction of life unworthy of living (1920): VerEecke Wilfred, “Myth and Reality in Psychoanalysis,” Proceedings of American Catholic Philosophical Association, Vol. 45; 1971: 158 – 166: Cowdin DM and Tiohey, Sterilization, Catholic health care, and the legitimate autonomy of culture,” Christian Bioethics.

[33] Ibid; see also Article 26 of the Constitution of Kenya, 2010: Diana Brahams, “The Reluctant Survivor.” [1990] NLJ 586: John Coggon, The wonder of Euthanasia: A debate that is being done to Death.” [2013] MLR 401; Kaczor Christopher, “Faith and Reason and Physician assisted Suicide,” Christian Bio-ethics, Vol. 4(2), 1998: 183-201: Jeremy W. Wilson, Debating Human Adult Euthanasia (2011, Vol. 3 No. 08) see http://www.inquiriesjournal.com/a?id=557;Kass Leon, “Neither for Love nor money: Why Doctors must not Kill,” The public interest, Vol. 94, 1989: 24-46. [Kass (1)] – Death with Dignity and the Sanctity of Human Life,” Human life Review, Spring 1990: 19-40. [Kass (2)].

[34] Ibid.

[35]Ibid.

[36] John Finnis, Aquinas: “Moral, Political and Legal Theory.” (Oxford: oxford university Press, 199), 132.

[37] Michael P. Zuckert, ‘Do Natural Rights Derive From Natural Law?’ (Harvard Journal of Lawn and Policy) 20 (1997), 695.

[38] Assisted Suicide, The Philosophers’ brief (March 27, 1997 Issue).

[39] Anna Kozlova, “Kant and Mill on Physician-Assisted Suicide.” (2015, vol. 7 No. 09); see http://www.inquiriesjournal.com/a?od=1183.

[40]Ibid.

[41]Nancy Beth Cruzan v. Director, Missouri Department of Health 497 U.S. 261.

[42] Black’s Law Dictionary (9^th edition Byan A. Granner).

[43]Cruzan by Cruzan v Director, Missouri Department of Health 479 US 261 (1990).

[44] Ronald Dworkin, “Freedoms Law: The Moral Reading of the American Constitution.” (Oxford University Press UK 1999) p.g 133.

[45]Ibid.

[46] Ibid.

[47] Ronald Dworkin, Life’s Dominion, “An Argument about Abortion, Euthanasia and individual Freedom.” P. 191-196.

[48]Ibid.

[49] Stanford Encyclopedia, Autonomy in Moral and Political Philosophy (First Published July 28, 2003)

[50]Cruzan v. Director of Department of Health 497 U.S 261.

[51] Sara Taub, Departed, Jan 11, 1990, AMA Journal of Ethics.

[52]Momeyer R., “Let’s Admit Nancy Cruzan is Dead.” Newsday. Apr. 16, 1990 43; also see http://journalofethics.ama-assn.org/2001/07/imhl1-0107.html (Accessed July 4, 2017).

[53] Ibid

[54] Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Havard University Press 1996)

[55]The Doctrine of informed consent require that a physician may be held liable for a patient’s injuries or loss of life if such arose from risks which the physician should have disclosed when securing the patients consent to treatment. See also Martin Struder, The Doctrine of informed Consent: Protecting the Patient’s Rights to Make Informed Healthcare Decisions (Montana Law Review 1987).

[56]Ibid.

[57] US Supreme Court Judge (1990) as he was then.

[58] Ronald Dworkin, Freedom’s Law; “The Moral reading of the American Constitution.” P. 132.

[59] Ibid.

[60] Case No. 27401/15.

[61]Lee Carter –vs- Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331.

[62] See https://lop.parl.ca/content/lop/ResearchPublications/2015-47-e.html (Accessed July 4, 2017).

[63] See http://www.justice.gc.ca/eng/rp-pr/other-autre/adra-amsr/p1.html (accessed July 4, 2017).

[64]Jules Coleman, Scott Shapiro, The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford University Press) p.g 69.

[65] Ronald Dworkin, Life’s Dominion: An Argument about Abortion Euthanasia and Individual Freedom (New York Review of Books) ISBN 0-679-73319-1.

[66] Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Harvard University Press)

[67] Ommony John Paul, Key Issues in Jurisprudence: An In-Depth Discourse on Jurisprudence (2006 Law Africa)

[68] University of Delphi, “Virtual Learning Environment’ (ISSN 2349 -154X); See http://vle.du.ac.in/mod/book/view.php?id=10382&chapterid=17663 (accessed June 11, 2017)

[69] Ibid

[70] Ibid

[71] John Locke, Second Treatise of Government (Amended 2007)

[72]Michael P. Zuckert, ‘Do Natural Rights Derive From Natural Law?’ Harvard Journal of Law and Policy, 20 (1997), 695.

[73] Ibid

[74] Ronald Dworkin, Life’s Dominion, An Argument About Abortion Euthanasia and Individual Freedom (New York Review of Books) ISBN 0-679-73319-1; see also Allen E. Buchanan et al., “Surrogate Decisions-Making for Elderly Individuals Who are Incompetent or of Questionable Competence,” Novemberb1985, a report prepared for the office of Technology Assessment.

[75] Ibid, at page 224.

[76] Jules Coleman, Scott Shapiro, “The Oxford Handbook of Jurisprudence and Philosophy of Law” (Oxford University Press) p.g 69.

[77] Ibid.

[78] Ian Harris, Ethics and Euthanasia: Natural Law philosophy and Latent Utilitarianism (Australian Association for Professional and Applied Ethics 12^th Annual Conference 28 -30 September 2005, Adelaide)

[79]Omony John Paul, “Key Issues in Jurisprudence: An In-depth Discourse On Jurisprudence Problems” (Law Africa).

[80] Jules Coleman, Scott Shapiro, “The Oxford Handbook of Jurisprudence and philosophy of Law” (Oxford University Press) p.84.

[81] John Locke, Second Treatise of Government (Last Amended 2008)

[82]AlfredHoche, “Allowing the Destruction of life unworthy of Living” (1920)

[83]Markwell Hazel, End of Life: a Catholic View,” Lancet, Vol. 366: September 24, 2005: 1132 -1135.

[84]Pope John Paul, “Message to the Sick and Suffering,” in an Address at Rennweg Hospice, Vienna Austria June 21, 1988 see also http://www.macathconf.org/message_to_the_sick_and_suffering.htm: 1-5.

[85]http://euthanasia.procon.org/view.source.php?sourceID=000664 (Accessed 17/6/2017) see also Pope John Paul II, “Message to the Sick and Suffering,” in an address at Rennweg Hospice, Vienna, Austria, June 21, 1998, accessed line at http://www.macathconf.org/message_to_the_sick_and_sufferin.htm: 1- 5.

[86]Michael Freeman, “Denying Death its Dominion: Thoughts on Diana Pretty Case.” (2002).

[87]Pope John Paul II, “The Vatican Declaration on Euthanasia” (1980) See also http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19800505_euthanasia_en.html(Accessed 17/6/2017)

[88] Ibid.

[89]http://www.markedbyteachers.com/as-and-a-level/religious-studies-and-philosophy/to-what-extent-would-a-follower-of-natural-law-allow-euthanasia.html (accessed June 19, 2017)

[90] Ibid

[91] Ibid

[92]https://www.siue.edu/~evailat/i-mill.html (Accessed July 3, 2017)

[93]https://www.utilitarianism.com/utilitarianism.html (accessed 7/3/17).

[94] Alfred Hoche, “Allowing the Destruction of life unworthy of living.” (1920)

[95] Anna Kozlova, “Kant and Mill on Physician Assisted Suicide, Inquiries Journal /Student pulse”(2015, Vol. 7 No. 09) 7(09).

[96] Ibid.

[97] Ibid.

[98]http://www.csus.edu/indiv/g/gaskilld/ethics/utilitarianism%20notes.htm (Accessed July 3, 2017).

[99] Ibid.

[100] Ibid.

[101] The New York Review Books, Assisted Suicide: The Philosopher’s Brief (March 27, 1997).

[102]L. Ackermann, Human Dignity for Equality in South Africa (1^stednJuta 2012).

[103] (2000) (1) AS 815 TPD at 823.

[104] N.N.O. 1996 (2) SA 751 CC.

[105] Art. 28, Constitution of Kenya, 2010.

[106] Art. 1. The Universal Declaration of Human Rights (UDHR 1948).

[107] L. Ackermann, Human Dignity for Equality in South Africa (1^stednJuta 2012).

[108] Ibid; also see Art. 259, Constitution of Kenya, 2010; The Constitution shall be interpreted in a manner that (a) promotes its purposes, values and principles; (b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; (c) permits development of the law; and (d)promote good governance.

[109]Forum of Conscience v Sierra Leone (2000) AHRLR 293.

[110] Sam Harris, The Science of Values; The Moral Landscape (Bantam Press 2010) at p. 63

[111] Ibid.

[112] Ibid

[113] NGHC Case No. 27401/15

[114]Soobramoney -vs- Minister of Health, Kwa-Zulu Natal 1998(1) SA 765 (CC); Nancy Cruzan –vs- Director, Missouri Department of Health, et al 497 US 261 (1990) 343.

[115] Ibid.

[116]Ian Harris, Ethics and Euthanasia: Natural Law Philosophy and latent Utilitarianism(Australian Association for Professional and Applied Ethics 12^th Annual Conference 28-30 September 2005, Adelaide) p.g 1

[117]Ibid

[118] Ronald Dworkin, Life’s Dominion; An Argument about Abortion, Euthanasia and Individual Freedom (New York Review of Books) ISBN 0-679-73319-1 p. 224.

[119] Ibid, at p.g. 223.

[120]Amartya Sen, “Rational Fools: A Critique of Behavioral Foundation of Economic Theory,” Philosophy and Public Affairs 6, no 4 (Summer 1977).

[121] Ibid.

[122] Ibid.

[123] Ibid.

[124] Buchanan et al., “Surrogate Decision Making.”

[125] Ibid.

[126] Elizabeth Rosenthal, “In Matters of Life and Death, the Dying Take Control,” (The New York Times) August 18, 1991, 1.

[127] Rt. Revd James Newcome, “Intrinsic Value of Life, (Bishop of Carlise, Lead Bishop for Healthcare issues January 2012).

[128] Pope John Paul II, “Message to the Sick and Suffering,” in an address at Rennweg Hospice, (Vienna, Austria, June 21, 1998) accessed line at http://www.macathconf.org/message_to_the_sick_and_sufferin.htm: 1- 5.

[129]Ibid p.g 11.

[130]John Locke, Second Treatise on Government (As Amended 2008).

[131]Ibid.

[132]Ibid.

[133] Andrew Buhrmann, “Euthanasia and Intrinsic Value of Life.”(California State University East Bay) available at www.csueastbay.edu/class/departments/philosophy/reflections/2008/contents/andr-buhr.html

[134]Ibid.

[135]Ibid.

[136]Charles Njonjo, “Euthanasia and the Right to Die” (Roman Stoic Philosopher) See also https://www.academia.edu/6162797/EUTHANASIA_AND_THE_RIGHT_TO_DIE.

[137] Ibid.

[138] Ronald Dworkin, “Dying and Living: Life’s Dominion, An Argument About Abortion,” Euthanasia and Individual Freedom” ( New York Times Book Review).

[139] Dianna Brahms, “The Reluctant Survivor.” [1990] NLJ 586.

[140] Ibid.

[141] International Task Force on Euthanasia and Assisted Sucide, Frequently Asked Questions: www.internationaltaskforce.e.org.

[142] Ibid

[143]Charles Njonjo, “Euthanasia and the Right to Die.” (Roman Stoic Philosopher) See also https://www.academia.edu/6162797/EUTHANASIA_AND_THE_RIGHT_TO_DIE

[144]Moulyn Adrian, “The Meaning of Suffering: An Interpretation of Human Existence from the View Point of Time” (Westport, CT: Greenwood Press) 1982.

[145]Ibid.

[146] Mahmud AdesinaAyuba, “Euthanasia; A Muslim perspective.” Scriptura 115(2016:1), pp. 1-13

[147]OducuFuat. “Euthanasia: Killing as Due Cure?” Winener Medizinische Wochenschrift (1946), Vol. 153 (17-18_; 2003:387 – 391.

[148]http://euthanasia.procon.org/view.answers.php?questionID=000154 (Accessed July 16, 2017).

[149] Death with Dignity National Center (DDNC) October 13, 2009.

[150]Buttiglione Rocco, “The Thought of the Man Who became Pope John Paul” (Grands Rapids, MI Eerdmans Publishing Company 1997).

[151]McInerney Ralph, “Ethica Thomistica: The Moral Philosophy of St. Thomas Aquinas” (Washington DC: CUA Press 1997).

[152]KupczakJaroslaw, “Destined for Liberty: The Human Person in the Philosophy of Karol Wojtyla/Pope John Paul II”(Washington DC Catholic University of America Press 2000).

[153]https://www.lifesitenews.com/news/pope-francis-condemns-abortion-euthanasia-same-sex-marriage-in-exhortation (Accessed July 16, 2017): See also https://www.usatoday.com/story/news/world/2015/09/01/pope-francis-social-issues-abortion-gay-rights-climate-change/71520372/ (Accessed July 16, 2017).

[154] Ibid.

[155]http://socialissues.org.au/euthanasia/anglican_church/ (Accessed July 16, 2017).

[156]http://www.bbc.com/news/world-africa-37587290 (Accessed July 16, 2017).

[157]Ibid.

[158]Ibid.

[159] Ibid

[160]https://www.theguardian.com/world/2016/may/24/desmond-tutus-daughter-leaves-clergy-after-marrying-female-partner (Accessed July 16, 2017).

[161]Markwell Hazel. “End of Life: A Catholic View,” Lancet, Vol. 366: September 24, 2005: 1132 – 1135; McInerney Ralph, Ethica Thomistica: “The Moral Philosophy of St. Thomas Aquinas.” (Washington D.C: CUA Press)1997.

[162] Ibid.

[163] Mahmud Adesina Ayuba, “Euthanasia; A Muslim perspective.” Scriptura 115(2016:1), pp. 1-13

[164] Ibid.

[165] Romans 5:5.

[166]A.M. Ebraim, “Islamic Perspective Euthanasia (Qatl-al-rahma)”. JIMA, Volume 39, 2007: 173.

[167]Ibid .

[168] Ibid.

[169] Malik, Euthanasia, A Muslim Perspective, 230.

[170] Ibid.

[171] Majama, “Fiqhul Islami, Life Supportive Syatem” MajallatMajma Al-Fiqh 23:807.

[172]Majama, “Fiqhul Islami, Life Supportive Syatem” MajallatMajma Al-Fiqh 23:807.

[173] Ibid.

[174]Ibid.

[175] Ibid.

[176] Ibid.

[177]Al-Qaradawi, Islam Stance.

[178] Ibid.

[179]A Professor of South Asian Religions and Philosophy at Case Western Reserve University in Cleveland.

[180]NamitaNimbalkar, “Euthanasia: The Hindu Perspective” (National Seminar on BIO ETHICS - 24th& 25^th Jan. 2007).

[181] Harold Coward, Julius Katherine, Hindu ethics: Purity, Abortion and Euthanasia (State University of New York Press, 1989).

[182]Ibid.

[183]Ibid.

[184] A Professor of South Asian Religions and Philosophy at Case Western Reserve University in Cleveland

[185] BBC Religion & Ethics. “Euthanasia and Suicide: The Hindu View.”

[186] Hindu Website. Hinduism FAQ: “Hinduism and Suicide.”

[187]Ibid.

[188]http://euthanasia.procon.org/view.answers.php?questionID=000157 (Accessed July 16, 2017).

[189] Ibid.

[190]Norman Geisler, “The Life and Death Debate: The Moral Issues of our Time” (Praeger 1990).

[191]Rev. Jame Newcome, Intrinsic Value of Human life (Bishop of Carlisle, Lead Bishop of Health Care issues, January 2012).

[192]Ian Harris, Ethics and euthanasia: Natural Law Philosophy and Latent Utilitarianism (Australian Association for Professional and Applied Ethics 12^th Annual Conference 20-30 September 2005, Adelaide).

[193]Stephen Gottliebb, “Jurisprudence: Cases and Materials, the threats of rights and Manipulability of law (Contemporary Legal Education Series 1993) p.g 11.

[194]www.christianitytoday.com/history/people/theologians/thomas-aquinas.html. (Accessed 2^nd September 2017).

[195]https://stpeterslist.com/aquinas-on-suicide-3-reasons-it-is-unlawful-to-kill-oneself (Accessed 5th August 2017).

[196] Ibid.

[197]Ibid.

[198] Deuteronomy 32:39.

[199]Ibid.

[200]Ian Harriss, “Ethics and Euthanasia: Natural Law Philosophy and Latent Utilitarianism.” (Adelaide September 2005).

[201] Wesley Smith, The Culture of death: the assault on Medical Ethics in America (Encounter Books,San Francisco 2000); also see Wesley Smith, Forced Exit: the slippery forced from assisted suicide to legalize murder (Random House, New York, 1997).

[202]Joseph Boyle, “Who is entitled to Double Effect?” Journal of Medicine and Philosophy.” Vol 16, 1991, pp. 475 - 494.

[203] Ibid.

[204]Elizabeth Rosenthal, “In Matters of Life and Death, the Dying Take Control,” The New York Times, August 18, 1991, D1.

[205]Tamar Lewin, “Man is Allowed to Let Daughter Die,” The New York Times, January 27, 1993; See also, Brian McCormick, “Case looks at parental rights in Medical decisions,” American Medical News, October 21, 1991, D1.

[206]Ronald Dworkin, “Life’ Dominion, An Argument About Abortion, Euthanasia and Individual Freedom”

[207]Ibid.

[208] Ibid.

[209]Ronald Dworkin, “Freedom’s Law: The Moral Reading of the American Constitution.” (Harvard University Press) P.g 137.

[211] Ronald Dworkin, “Life’s Dominion: Argument about Abortion Euthanasia and Individual Freedom (Network Times Review) p.g 179.

[212]Nancy Cruzan v Director, Missouri Department of Health Department, 497, U.S 261.

[213]Ibid.

[214]Ibid.

[215]Ibid.

[216]Ibid.

[217]Immanuel Kant, Groundwork of Metaphysics of Morals.

[218]Essay on Kant’s Deontology and Euthanasia See Also https://www.bartleby.com/essay/Kants-Theory-of-Deontology-and-Euthanasia-PK6EJYYVC (Accessed 7th August 2017).

[219]https://www.bartleby.com/essay/Kants-Theory-of-Deontology-and-Euthanasia-PK6EJYYVC (Accessed 7th August 2017).

[220]http://www.inquiriesjournal.com/articles/1183/kant-and-mill-on-physician-assisted-suicide (Accessed 5th August 2017).

[221]Anna Kozlova, “Kant and Mill on Physician Assisted Suicide” (2015, Vol. 7 No. 09)

[222]Ibid.

[223]Ibid.

[224]http://www.inquiriesjournal.com/articles/1183/kant-and-mill-on-physician-assisted-suicide (Accessed 5th August 2017).

[225]http://www.inquiriesjournal.com/articles/1183/kant-and-mill-on-physician-assisted-suicide Accessed 5th August 2017).

[226] Ibid.

[227]Ronald Dworkin, “An Argument about Abortion, Euthanasia and Individual Freedom.” (New York Times Book Review).

[228] Jules Coleman, Scott Shapiro, The Oxford Handbook of Jurisprudence and philosophy of Law (Oxford University Press) p.84.

[229]http://www.aquinasonline.com/Questions/euthanasia.html (Accessed 5th August 2017).

[230] Jules Coleman, Scott Shapiro, The Oxford Handbook of Jurisprudence and philosophy of Law (Oxford University Press) p.84.

[231]Elizabeth Tefler, “Philosophical Approaches to the Dilemma of Death with Dignity” (VESS AGM, Aberdeen 29^th June 2016).

[232]Ibid

[233]http://www.bbc.co.uk/ethics/euthanasia/infavour/infavour_1.shtml (Accessed 2^nd September 2017)

[234]Ian Harris, “The Moral Landscape,” (2010 Bantam Press) p.g 63

[235]Carter vs Canada (Attorney General of British Columbia); See also The Dutch Termination of Life on Request and Assisted Suicide Act, 2002.

[236]Pyali Chatterjee, “Right to Life with Dignity: Time to Amend Article 21 of the Indian Constitution and Law of Euthanasia (2005 IJSRST Vol 1 Issue 5).

[237]Ibid.

[238]S v Makwanyane 1995 (3) SA (CC) para 329.

[239]Ibid

[240]Ibid

[241]Canadian Senate Report 86 as Quoted in the Senate Legal and Constitutional Legislation Committee Consideration of legislation Referred to the Committee: Euthanasia Laws Bill, 1996, March 1997 on 95.

[242](1994) 85 CCC (3^rd) 15 (SCC)

[243]ibid

[244] 2015 SCC 5.

[245]Carter v Canada (Attorney General of British Columbia) 2015 SCC 5.

[246]Canadian Charter of Rights.

[247]Ibid.

[248]https://impactethics.ca/2015/02/11/in-a-nutshell-the-supreme-court-of-canada-decision-in-carter-v-canada-attorney-general/. (Accessed 27^th August 2017).

[249]https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14637/index.do.

[250] Section 1, Canadian Charter of Rights.

[251]Lee Carter v Canada (Attorney General of British Columbia) supra.

[252]https://impactethics.ca/2015/02/11/in-a-nutshell-the-supreme-court-of-canada-decision-in-carter-v-canada-attorney-general/. (Accessed 27^th August 2017).

[253]Ibid.

[254]http://www.patientsrightscouncil.org/site/holland-background/ (Accessed 17/08/2017)

[255] Royal Dutch Medical Association Guidelines, 1988.

[256]Ibid.

[257]Ibid.

[258]Leen H J J, “Dying with Dignity: Developments in the field of Euthanasia in the Netherlands” 1989 Med Law 517.

[259] H. Jochemsen, “Report of the Royal Dutch Society o Medicine on Life – Terminating Actions with Incompetent Patients.” Part 1: Severely Handicapped Newborns.” Issues in Law & Medicine, vol. 7, no. 3 (1991), p. 366.

[260] Carlos Gomez, “Regulating Death.” (New York: Free Press, 1991), p. 32.

[261]Leen H J J, “Dying with Dignity: Developments in the field of Euthanasia in the Netherlands” 1989 Med Law 517.

[262]Alkmaar Case (NJ) (1985) No. 106, 451.

[263]Borst-Eilers, “The status of Physician administered active euthanasia in Netherlands “(Second International Conference on Health Law and Ethics, London, July, 1989).

[264]Act No. 19 of 1973.

[265]Weinfeld J. “Active Euthanasia - should be legalized” 1985 Med Law 101 at 108.

[266]Robert James Stransham - Ford -vs- Minister for Correctional Services & 3 others 2015 (15) SA 2740

[267]Section 10, Constitution of the Republic of South Africa, 1995.

[268]Section 7, Constitution of the Republic of South Africa, 1995.

[269]Section 12, Constitution of the Republic of South Africa, 1995.

[270]Le Roux -vs- Day (2011) 3 SA 274 para 138.

[271]Bernstein & Others vs Bester & others N.N.O. 1996 (2) SA 751 CC para. 67 -68.

[272]Johan de Waal, “The Bill of Rights Handbook,” (6^th Edition Juta & C0.) p. 250.

[273]Ibid.

[274]Advance Mining Hydraulics (Pty) Ltd & Others -vs- Botes N.O & Others (2000) (1) SA 815 TPD p.g 823.

[275]Ibid

[276]S v De Bruyn en ‘n Ander 1968 (4) 498 (A) at 510; See also S –vs- Maarohanye 2015 (1) SACR 337; G - H, S -vs- Makgotho 2013 (2) SACR 13 (SCA).

[277]2015 (15) SA 2740.

[278]Section10, South African Constitution, 1995.

[279]Section 12 (2) (b), South African Constitution, 1995.

[280] Rattan Singh, “Right to Life and personal Liberty.” Journal legal studies.

[281]Ibid

[282]Article 21 of the Indian Constitution provides for the Right to life and that that no one is to be deprived of life intentionally except according to the procedures established by law.

[283] The Right to life under Article 26, Constitution of Kenya, 2010.

[284] Ibid.

[285]1987 Cri LJ 743.

[286]Ibid.

[287] Indian Penal Code, 1860

[288] 1996)2 SCC 648

[289]Ibid

[290] (2011) 4 SCC 454

[291]https://www.washingtonpost.com/world/asia_pacific/tragic-case-prompts-india-to-adopt-a-law-permitting-passive-euthanasia/2015/01/03/5e33beb3-caf4-4e2a-bbc6-abfd29a17c9f_story.html?utm_term=.522a83fd3444 (Accessed August 27, 2017)

[292]Ibid

[293]https://www.lawctopus.com/academike/aruna-ramchandra-shanbaug-v-union-of-india-case-analysis/. (Accessed August 27, 2017).

[294] Ibid.

[295] Ibid.

[296]http://allafrica.com/stories/200704120103.html (Accessed 14th August 2017).

[297] Ibid.

[298] Ibid.

[299]Nicholas Orago, A Gender Perspective of Socio - Economic Rights under the 2010 Constitution of Kenya: A Mirage or a Path towards Women Empowerment ( Judiciary Watch report Vol. 10); See also Judiciary Watch Report, Judicial Enforcement of Socio-Economic Rights Under the New Constitution of Kenya 2010: Challenges and Opportunities for Kenya (The Kenyan Section of the International Commission of Jurists, 2011).

[300]Godfrey Musila, Testing Two Standards of Compliance: A Modest Proposal on the Adjudication of Positive Socio-Economic Rights under the New Constitution (Judiciary Watch Vol. 10) See also Judiciary Watch Report, Judicial Enforcement of Socio-Economic Rights under the New Constitution of Kenya 2010: Challenges and Opportunities for Kenya (The Kenyan Section of the International Commission of Jurists, 2011).

[301]Constitution of Kenya, 2010.

[302] See Section 63, 203, 226 Penal Code, Chapter 63 Laws of Kenya.

[303]Chapter 63, Laws of Kenya.

[304]Sussy Nyamosy, Kipkemoi Sang, International Jurisprudence: South African Court Rules on the Right to Die with Dignity (Bench Bulletin Issue 30 Kenya Law, 2015).

[305]Michael Mbugua Mburu, “Reconciling individual and collective Interests in Kenya: An Ethical Conceptual Framework.” (C50/13372/2009).

[306]Ibid.

[307] Ibid.

[308]https://www.standardmedia.co.ke/article/2000175109/african-octors-oppose-euthanasia-call-for-better-palliative-care (Accessed 14th August 2017).

[309]Kenya National Patients’ Rights Charter, (Issued by the Ministry of Health, 2013).

[310]Section 226, Penal Code Cap 63.

[311]Cap. 63 Laws of Kenya.

[312]Section 226, Penal Code, Cap. 63.

[313]Robert James Stransham - Ford -vs- Minister for Correctional Services & 3 others 2015 (15) SA 2740.

[314] Canadian Senate Report 86 as Quoted in the Senate Legal and Constitutional Legislation Committee Consideration of legislation Referred to the Committee: Euthanasia Laws Bill, 1996, March 1997 on 95

[315] Royal Dutch Medical Association Guidelines, 1988.

^{^[316]}International Task Force on Euthanasia and Assisted Suicide, Frequently Asked Questions: www.internationaltaskforce.e.org.

[317]Lourens Botha Grové, Framework for the Implementation of Euthanasia in South Africa (LLM thesis, University of Pretoria 2007).

^{^[318]}Robert James Stransham – Ford v Minister for Correctional Services & others (Case No. 27401/15).

^{^[319]} Ibid.

^{^[320]}Article 26, Constitution of Kenya, 2010.

^{^[321]} Article 25, Constitution of Kenya, 2010; See also Republic v Dickson Mwangi Munene& another [2011] eKLR

^{^[322]}Republic –vs- Dickson Mwangi Munene & another [2011] eKLR

[323]Ronald Dworkin, “Life’s Dominion, An Argument About Abortion Euthanasia and Individual Freedom” (New York Review of Books) ISBN 0-679-73319-1.

[324] Ibid.

^{^[325]} Ibid.

^{^[326]}Sam Harris, “The Science of Values; The Moral Landscape.” (Bantam Press 2010) at p. 63.

^{^[327]}The New York Review Books, Assisted Suicide: The Philosopher’s Brief (March 27, 1997).

^{^[328]}L. Ackermann, Human Dignity for Equality in South Africa (1^stednJuta 2012).

^{^[329]}Forum of Conscience v Sierra Leone (2000) AHRLR 293.

^{^[330]} Article 28, Constitution of Kenya, 2010.

^{^[331]}Sam Harris, “The Science of Values; The Moral Landscape” (Bantam Press 2010) at p. 63

^{^[332]} Chapter 4; Bill of Rights under Constitution of Kenya, 2010.

[333]Chapter 4, Constitution of Kenya, 2010.

[334]Crisp, “A good Death: Who best to Bring It? (1 Bioethics ISSN0269-9702 74).

[335]Crisp, A good Death: Who best to Bring It? (1 Bioethics ISSN0269-9702 74).

Monday 8 January 2018

A Dignified Exit: A Critical Evaluation of the Place of Euthanasia under Kenyan Law

1.1 Background

1.7 Objectives of the research

DYING AND LIVING: THEORETICAL AND CONCEPTUAL UNDERPININGS

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