The Supreme Court on November 27 dismissed a petition that was filed by Certa Law, a Kigali-based law firm against article 108 of the penal code that prescribes a 5 to a 7-year jail term for women who get convicted for unintentionally killing their infants due to postpartum mental health issues.

The petition was filed last month and in it, the lawyers say the article in question has two main weaknesses, one of which is that it is discriminatory since it only accounts for mothers, and leaves out fathers, yet both can do such acts.

The background

The petition, filed by prominent city lawyer Florida Kabasinga indicated that this may mean that a father who does the same may be treated with unfair favour, because they will instead be charged with involuntary manslaughter. This charge attracts a jail term that can be as short as six months.

A lawyer with her firm Fiston Rwagitare told The New Times in a telephone interview that not only is this article a contradiction of Articles 15 and 16 of the Constitution that prohibits discrimination, it is also against the Maputo agreement of 2003 that requires countries to change laws that are discriminatory.

"There is discrimination there. It is not fair that a man who is convicted of involuntary manslaughter is punished with a jail term of six months, yet a woman who does a similar thing is jailed for up to seven years,” he said. 

The second thing that Certa Law challenged in article 108 is that the law itself recognises that women who commit such crimes are not in the right mental health state after giving birth, but it still punishes them as if they did it intentionally.

"When you say that a person who does such acts is not in her mind, and it is evident that her brain was not working properly during the time of doing it, then you should not call her a criminal, and punish her,” Rwagitare said.

The ruling

However, the four-judge panel that delivered the final ruling does not fully agree. 

The panel said that while mental health issues are common with new mothers, there are particular illnesses that cannot be used as an excuse.

"Mental health experts agree that mental health problems are common with new mothers but there is a difference between a mother with postpartum psychosis and the one with postpartum depression. The former is completely unaware of her actions while the latter can tell the difference between good and bad,” the panel indicated.

The panel also indicated that although the person dealing with postpartum depression must be tried in the courts of law should they kill their infant, the judge is usually expected to consider her mental illness in consideration when making his or her decisions.

The court also requested that the wording of the article must be changes so that it is clearer so that such misinterpretation is not repeated.

The panel reminded that being lenient with mothers with postnatal psychosis but holding those with depression accountable is not unique to Rwanda but is the same in other countries like Canada and the United Kingdom.

Mental health expert weighs in

Joy Ruhigisha Gihana, a mental health and family therapist told The New Times that it is not uncommon for women to experience mood and emotional changes after given birth pointing out that research indicates that they are in fact more likely to experience mental health challenges after childbirth than at any other time in their lives. 

However, she agrees that there is a distinct difference between postpartum depression and postpartum psychosis.

She explains that patients going through postpartum depression exhibit symptoms like lack of interest in daily activities, feelings of guilt and worthlessness, loss of self-confidence, sadness, insomnia among others. On rare occasions, women facing depression will consider suicide.

However, she says that postpartum psychosis and even when it manifests itself, it is mostly experienced by women who have a history of bipolar disorder and other severe mental illnesses. 

She reminds that this does not mean that had these challenges before cannot experience it.

"When it comes to psychosis, these women lose touch with reality. They may start to see or hear things that are not there. The mother will start thinking that the baby is not safe. She will have hallucinations, be unawareness of her surroundings, feel suicidal or get violent and can very easily hurt the baby,” she said.