Court Declares Section of Law Criminalizing Attempted Suicide Unconstitutional 

The High Court in Nairobi declared a section of the Penal Code that outlawed attempted suicide as being unconstitutional. 

Justice Lawrence Mugambi said section 226 of the penal code shames victims of suicide ideation in the eyes of the community for actions that are beyond their mental control.

He added this is a violation of Article 28 of the Constitution which states that every person has inherent dignity and the right to have that dignity respected and protected.

“A declaration is hereby made that section 226 of the penal code is unconstitutional for violating article 27, 28 and 43 of the constitution,” he ruled.

Section 226 of the Penal Code criminalized attempted suicide and provided punishment of two years imprisonment, a fine or both once found guilty.

A case was filed in court by the Kenya National Commission on Human Rights, Charity Muturi and the Kenya Psychiatric Association.

They asked the court to intervene and determine whether suicide is a mental issue or a crime.

They argued that the drive for a person to die by suicide or attempt suicide is undiagnosed and untreated mental health conditions as well as mental disability and not a criminal thought.

According to their papers they argued that survivors ought to be placed under mental care and not jail.

“The petitioners contend that persons who have suicidal thoughts or who attempt suicide require medical support or assistance and not criminalisation or punishment,” said court papers read in part.

The petitioners also argued criminalising attempted suicide is tantamount to punishing persons with mental conditions.

“It is the petitioners’ contention that Section 226 of the Penal Code is highly discriminatory against persons with mental health conditions and is tantamount to degrading treatment owing to the reason that prosecutions and convictions are akin to punishing the symptom of mental health condition,” they argue.

President Uhuru Kenyatta, in his 2019 Madaraka Day address, said the country was facing a mental health crisis.

He directed the Health ministry to implement programmes and policies to address the problem.

Following the directive, the ministry on December 11, 2019, constituted a task force which a year later presented a report titled Mental Health and Wellbeing; Towards Happiness and National Prosperity 2020.

The task force’s recommendation was that Section 226 should be repealed in order to enable persons with depression to seek early treatment and improve the accuracy of data on suicide.

The court was told that decriminalising attempted suicide will increase attempts to seek help and reduce stigma.

“Continued criminalisation of attempted suicide exacerbates social stigma thus discouraging persons with mental health conditions from seeking requisite healthcare services.”