The baby has refused to suck. These six words plus some absurd behavior of moving out at wee hours of the night with a days old infant were early signs that a woman codenamed CWM was suffering from post-partum depression.
CWM’s aunt was concerned about the infant’s health owing to the cold weather that the mother housed her.
However, the unfortunate happened. The young mother killed two children belonging to her aunt’s neighbour. CMW did not know what she did and why. And today, she is in jail, held under the president’s pleasure.
Although the High Court declared the law that gave the president powers to determine how long a person found guilty but insane can be behind bars, she just lost a constitutional case seeking to set aside the orders.
It is now seven years without her taking mental illness medicine. She, however, does not know when her sentence can be reviewed or even released by the court.
Justice Grace Nzioka ruled that she needed to appeal the decision of the 2018 judgment that found her guilty but insane as the court had already passed its judgment and thus had no powers to revisit her case.
“This court became “functus officio” when the final decision in the murder case was rendered and the petitioner ordered to be detained at the president’s pleasure. As such, this court has no power to review its own decision and the matter can only be a subject of appeal to the Court of Appeal,” said Justice Nzioka.
Earlier in 2018, when Justice Jessie Lesiit (currently a Court of Appeal judge) was handing the sentence, she said it was unfortunate that the country has no law to deal with the situation.
She stated that the conundrum is a gender specific one and needed the government to help mothers who fall victim to post-partum depression.
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Gone just like that
The case agonised Justice Lesiit. On one hand, she said, a family had lost two children in one morning. On the other hand, the judge was left to determine the fate of a woman who was a victim of an illness that had nothing to do with anything she did or took.
She said the current criminal law is discriminatory against women. Section 2010 of the Penal Code stipulates that where a woman by any act or omission causes death of her child under the age of 12 months, but during this time her mind is disturbed from the effect of not having fully recovered from child birth, amounts to infanticide.
The section continues that it should be treated as manslaughter of the child. On the other hand, Section 166 (i) of the Criminal Procedure Code allows a court to find a person guilty of an offence but guilty. The accused is then left at the president’s mercy.
Nevertheless, CMW’s case was unique as she killed other children. The judge said that all indicators showed that she was not herself. She killed the two minors, agreed to go to a police station. Before she was tried, she was taken to the Mama Lucy Hospital as she had injuries on her face and to Mathare Mental Hospital.
She was treated until when she was found fit to stand trial. CMW in her defence stated that she remembers having delivered a baby and being discharged from hospital. After that she did not know what happened. She said that she found herself at Mathare Hospital. She said that during the time in question, she was not in her right senses what she was accused of was not planned.
“It is an illness. Women will only suffer it, as they are the only ones who can suffer such imbalances. My conscience tells me that there is inherent in the treatment of women with this condition under the law a lack of parity and equality. It is discriminative. It flies in the face of constitutional provisions on right to equal treatment before the law; right to equal enjoyment of rights under the law and general discrimination by virtue of the fact only the women gender will ever suffer from such a condition,” Justice Lesiit said.
The state in the case asked for a special sentence. The judge compared the Kenyan law and that of Nigeria. She said Parliament has made it mandatory for judges to order that an accused person be admitted in a hospital for proper medical care and treatment if found to be suffering from Post-partum psychosis. The judge was of the view that time is now ripe for Kenya to build a ‘mental asylum’ and a review of the current penal law to ensure that women who are victims of post-partum depression were cared for instead of being sent to languish in jail.
In America, courts have taken postpartum depression as a defense because is not premeditated or willful. Some courts have therefore overturned jury verdicts that did not recognise mental state as a mitigating factor in cases of infanticide.
An example is a case in California in 1990 where Sheryl Massip was charged with murdering her six-week-old son by intentionally running over him with her car and placing him in a trashcan, after which she reported him kidnapped.
Psychiatrists testified that, at the time of the crime, she had been experiencing suicidal ideation and auditory hallucinations that her son was the devil. She was found guilty of second-degree murder and incarcerated.
Two months later, however, a judge set aside the jury guilty verdict, and acquitted her on insanity grounds. She was sentenced to one year of outpatient treatment. The decision was affirmed on appeal.
Put on probation
Law professor Daniel Maier Katkin in America conducted research that revealed that amongst 24 women who relied on postpartum psychosis as a legal defense, eight women were acquitted, four were put on probation, 10 were sentenced to between three - twenty years imprisonment while the last two were sentenced to life imprisonment. According to Justice Lesiit, CMW’s case was a classic example that the country treats the disease casually and too late. She asserted that court and subsequent jailing are indicators that the state comes into the picture and too late when harm has already happened.
“The law is binding on this court and I appreciate that. However I must give a recommendation concerning cases of Post-partum psychosis… This case has caused me agony. On the one hand a family lost both their children in one morning. PW3 the mother had herself just given birth to her second child. On the other hand the accused was suffering from an illness, not contributed by anything she did or took. It is however clear that we do not treat mothers who fall victim of this kind of mental illness appropriately or timeously,” she daid. The disease affects the mind and is caused by hormonal imbalances especially to women after giving birth or while lactating.
By definition, postpartum depression refers to a non-psychotic mood disorder that can affect women during perinatal period to one year after childbirth. There are two categories of this kind of mood disorder. One can either have antepartum depression which occurs before birth or postpartum which occurs after birth. A research study conducted in Nakuru Level 5 Hospital indicated that most women who are affected suffer because of barriers to early diagnosis and treatment.
The study stated that mothers required psychosocial support during the perinatal period and that such support should target victims of Gender Based Violence and offer family support.
It also indicated that a mother’s mental health before giving birth was a strong determinant of post-partum depression. Some of the triggers indicated are history of depression, presence of antepartum depression, experiencing stressful events during pregnancy and low perceived social support.
Others are low-income backgrounds and single motherhood status. Another study showed that in Kenya, post-partum depression was prevalent among HIV positive and mothers at 48 per cent, pregnant adolescents at 58 per cent mothers with malnourished babies at 66 per cent.
Loss of job, multiple births, difficulty breastfeeding and pregnancy complications are also cited as other triggers of the disease.
Post-partum depression if untreated may recur amongst mothers in subsequent pregnancies. Cleverland Clinic in its website indicates that there is a 30 to 50 percent chance that it will happen again after future childbirths.
It may lead to a more severe form of the disorder known as Postpartum psychosis or puerperal psychosis. Postpartum psychosis has been defined as delirium associated with puerperal sepsis (i.e. infections and fever arising from complications following childbirth).
It is a mental condition characterized by agitation, delirium and attacks of mania which result from suppressed lochia discharge that is transported to the brain.
The resultant adverse symptoms include: confusion and disorientation, obsessive thoughts about the baby, hallucinations and delusions, sleep disturbances, excessive energy and agitation, paranoia; and attempts to harm yourself or your baby (suicide and infanticide).
According to Prof Walker Ladd, it is also considered a severe disorder and a rare condition that typically presents as bipolar disorder or psychotic depression. Other studies show that the consequences of allowing maternal depression to go undiagnosed hence untreated are detrimental to the health of the mother, her infant and other family members. It affects one to two in every 1000 women.
Another study documented numerous clinical diagnosis which demonstrates that two thirds of women who kill their children in the wake of childbirth suffer from postpartum psychosis. It further demonstrate that the risk of psychosis necessitating psychiatric hospitalization is the highest during the first month following childbirth and continues to be a significant risk through the second postpartum year. Additionally, such women do remain at high risk of the same recurring in future if pregnancy occurs within two years.
Justice Lagat Korir shared Justice Lesiit’s sentiments on the current legal regime in a separate appeal against codenamed NC. According to Justice Korir, it does not help to jail a mother suffering from the disease at it does not teach a lesson as the law intends.
“A stiff sentence would teach her nothing and it would be no deterrent if she was mentally ill or susceptible to post-partum depression. What the appellant needed then, and even now, was medical treatment and psychosocial support,” said Justice Korir.