Attempted suicide not a crime, says High Court
Justice Lawrence Mugambi. He has rules that attempted suicide is not a crime.
The High Court on Thursday (January 9) declared Section 226 of the Penal Code, which criminalises attempted suicide, unconstitutional.
Justice Lawrence Mugambi said the section offends Article 27 of the Constitution by criminalising a mental health issue.
“It is my finding that applying the purpose and effect principle of constitutional interpretation, Section 226 of the Penal Code offends Article 27 of the Constitution by criminalising a mental health issue, thereby endorsing discrimination on the basis of health, which is unconstitutional,” said the judge.
He further said the section humiliates and “disgraces victims of suicide ideation” in the eyes of the community for actions that are beyond their mental control, which is a violation of Article 28 of the constitution.
“The existence of Section 226 exposes the survivors of suicide and potential victims with suicide ideation to possible reprisals, thereby eroding the right to have the highest attainable standard of health envisaged in Article 43 (1) of the Constitution,” said the judge.
The petition was filed by the Kenya National Commission on Human Rights (KNCHR) and Kenya Psychiatric Association among other organisations, arguing that the section was unconstitutional.
Penal Code
Section 226 of the Penal Code states: “Any person who attempts to kill himself is guilty of a misdemeanour.” Anyone arrested and convicted for attempted suicide is liable to two years imprisonment, a fine or both.
KNCHR pointed out that despite ratifying the UN Convention on the Rights of Persons with Disabilities in May 2008, which places an obligation on Kenya to take all appropriate measures including legislation to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities, Kenya still retained the law.
According to the commission, the World Health Organization ranked Kenya the sixth African country with the highest levels of depression, with at least 1.9 million diagnosed Kenyans afflicted.
KNCHR said the continued criminalisation of attempted suicide increases stigma and trauma, which ends up denying vulnerable persons much-needed healthcare as well as psychological, family and community support.
Tunawiri, a community-based organisation, added its voice saying the criminalisation of attempted suicide increases stigma, which in turn discourages persons with mental health disorders and struggling with suicidal ideation and thoughts from seeking help.
The lobby said through familial and systemic support, many deaths by suicide are preventable as persons with mental health conditions are able to access and receive the mental health care they need.
The petitioners faulted the government for failing in its mandate, which includes the protection of the rights of its citizens and ensure their freedom from discrimination, and the protection of persons with disabilities.
The petitioners contended that the main driving factors for attempted suicide in Kenya and globally are undiagnosed and untreated mental health conditions as well as mental disabilities, which result in suicidal thoughts.
Attempted suicide
They said that criminalisation of attempted suicide amounts to punishment of persons with mental disabilities contrary to the provisions of Section 2 of the Persons with Disabilities Act and Articles 27 and 260 of the Constitution.
The Ministry of Health acknowledged the growing epidemic of suicide and attempted suicide and stated that it had made considerable efforts towards de-criminalisation of suicide.
It stated that the decriminalisation of suicide can be done by Parliament as the duty to legislate can only be carried out by it.
Further, the ministry added that former President Uhuru Kenyatta had formed a Taskforce on Mental Health in Kenya, which was commissioned in December 2019 and a report presented the following year.
The report noted that for every adult who died by suicide, more than 20 have attempted suicide. In 2018, the Kenya National Bureau of Statistics Report confirmed that 421 Kenyans die by suicide every year.
The taskforce noted that there is a need for an amendment or repeal of specific legal provisions that offend the Constitution, like Section 226 of the Penal Code.
A proposal to amend the penal code to decriminalise attempted suicide, according to the Health Ministry, was rejected by Parliament.
