Suicide attempts: MPs move to stop jailing survivors
The National Assembly’s Justice and Legal Affairs Committee has approved the Penal Code (Amendment) Bill, 2024, which seeks to repeal Section 226 of the Penal Code; the provision that currently criminalises attempted suicide.
What you need to know:
- The proposed law change, supported by legal and human rights bodies, aims to replace stigma and punishment with dignity and treatment for individuals battling mental health crises.
Individuals who attempt suicide will no longer face a jail term of up to two years if a new Bill is enacted into law.
The National Assembly’s Justice and Legal Affairs Committee has approved the Penal Code (Amendment) Bill, 2024, which seeks to repeal Section 226 of the Penal Code; the provision that currently criminalises attempted suicide.
“Section 226 as read with section 36 of the Penal Code provides that any person who attempts to kill himself is guilty of a misdemeanour, which is punishable with imprisonment for a term exceeding two years or a fine or both,” Gitonga Murugara, who chairs the committee said in a report to the House.
Mr Murugara said the committee only received four submissions from members of the public who supported the proposed Bill.
Those who sent memoranda to the committee include Anjarwalla and Khanna LLP (ALN), Law Society of Kenya (LSK), National Gender and Equality Commission (NGEC), and Outreach for Action Kenya.
The ALN, LSK and Outreach for Action Kenya supported the Bill with additional recommendations.
The ALN said section 226 of the Penal Code, Cap, 63 was declared unconstitutional by the High Court in the case brought by the Kenya National Commission on Human Rights and two others versus the Attorney General, the Directorate of Public Prosecutions and LSK as an amicus curia, since it violates Articles 27, 28 and 43 of the Constitution of Kenya.
Diagnosed
The petitioners argued that Section 2 of the Mental Health Act defines a ‘person with mental illness’ to include a person diagnosed with suicidal ideation or behaviour.
“By virtue of this section, therefore, the law recognises persons with suicidal behaviour as persons suffering from mental illness; hence its criminalisation is unconstitutional.”
“Section 226 of the Penal Code, Cap 63 indignifies and disgraces victims of suicide ideation in the eyes of the community for actions beyond their control, a violation of Article 28 of the Constitution.”
The report indicates that the section exposes survivors of suicide and persons with suicidal tendencies to criminal action instead of healthcare; thereby eroding the right to have the highest attainable standard of health as envisaged in Article 43(1) of the Constitution.
In their submissions, LSK and Outreach for Action Kenya supported the Bill on the grounds that it adopts a mental health-based approach. They noted that individuals who attempt suicide are often in serious psychological distress, suffering from depression, trauma, or hopelessness, and that criminal sanctions penalise suffering rather than addressing its root causes.
“The committee agreed with the submissions of ALN, LSK and Outreach Kenya in support of the Bill,” the report indicates.
The National Gender and Equality Commission (NGEC) supported the Bill in its entirety, arguing that the High Court had already declared section 226 of the Penal Code, Cap 63 unconstitutional.
Also read: Is suicide now decriminalised in Kenya?
Additionally, the NGEC urged the National Assembly to decriminalise the use of narcotic drugs and psychotropic substances by repealing Sections 5(1)(a) and (b) of the Narcotic Drugs and Psychotropic Substances (Control) Act.
The commission argued that the current penalties are excessive for persons struggling with addiction, who often relapse even after paying fines or serving jail terms.
“Instead, such people, who are mostly youth, need medical intervention, not incarceration,” the report notes.
The NGEC also called on Parliament to fast-track the implementation of the 2020 Report by the Task Force on Mental Health, which recommended amending existing laws to decriminalise suicide as well as substance use and abuse, and to facilitate care instead.
The report also recommended harmonisation of substances-use-related laws including the National Authority for the Campaign Against Alcohol and Drug Abuse Act, Cap 122, Alcoholic Drinks Control Act, Cap 122, Narcotic Drugs and Psychotropic Substance (Control) Act, Cap. 245 and the Tobacco Control Act, Cap, 245A.
“Upon reviewing the Bill and submissions received, the committee observed that it is progressive, humane, and constitutionally aligned reform.”
It adds: “To ensure decriminalisation translates into meaningful prevention and care outcomes, Section 2C of the Mental Health Act obligates the national government, in collaboration with county governments, to develop the necessary physical and technological infrastructure for the care, rehabilitation, and provision of health services to persons with mental health illness, which includes persons with suicidal ideation or behaviours.”
