Under the Penal Code, individuals attempting to take their own lives are guilty of a misdemeanour, punishable by up to two years in prison, a fine, or both, with the minimum age of prosecution set at eight years. However, the court found this provision to be at odds with the Mental Health Amendment Act and Ministry of Health policies, which recognize suicide attempts as symptoms of mental illness rather than criminal acts
In a landmark ruling, Justice Lawrence Mugambi declared Section 226 of the Penal Code, which criminalizes attempted suicide, unconstitutional for violating Articles 27, 28, and 43 of the Constitution.
“Applying the purpose and effect principle of constitutional interpretation, Section 226 of the Penal Code offends Article 27 by criminalizing a mental health issue, thereby endorsing discrimination based on health, which is unconstitutional,” ruled Justice Mugambi in Constitutional Petition E045 of 2022.
He further noted that criminalizing such attempts indignifies and disgraces victims of suicidal ideation in the eyes of the community, violating their right to dignity under Article 28 of the Constitution. Penal Code’s Provisions and Mental Health Realities Under the Penal Code, individuals attempting to take their own lives are guilty of a misdemeanour, punishable by up to two years in prison, a fine, or both, with the minimum age of prosecution set at eight years. However, the court found this provision to be at odds with the Mental Health Amendment Act and Ministry of Health policies, which recognize suicide attempts as symptoms of mental illness rather than criminal acts.
“Section 226 exposes survivors of suicide and potential victims of suicidal ideation to reprisals, eroding their right to the highest attainable standard of health as envisioned in Article 43(1) of the Constitution,” Justice Mugambi added.
Expert Testimonies and Advocacy
Petitioners, including mental health advocates and medical professionals, argued that undiagnosed and untreated mental health conditions drive most suicide attempts. Dr Bernard Mogesa, representing the Kenya National Commission on Human Rights (KNCHR), highlighted that Kenya ranks sixth in Africa for depression, with at least 1.9 million citizens diagnosed.
Dr. Boniface Chitayi, a psychiatrist, testified that suicide attempts stem from severe psychological distress, not criminal intent. “To criminalize these attempts is to punish individuals for their illnesses,” he stated. Charity Muturi, a petitioner and mental health advocate, shared her struggles with bipolar disorder and suicidal ideation. “The stigma and fear of legal consequences keep many from seeking help. The law should focus on care, not punishment,” she said.
Global Context and Comparative Rulings
The court referenced international perspectives, including a 1994 Supreme Court of India ruling that classified suicide as a psychiatric issue, describing it as “a call for help” rather than a criminal act. Globally, the World Health Organization reports approximately 700,000 suicides annually, with suicide being the second leading cause of death among individuals aged 15-29 years.
Government and Policy Recommendations
The Ministry of Health supported the petition, emphasizing that suicide is a preventable public health issue influenced by psychological, social, biological, and environmental factors. Dr Patrick Amoth, Chief Technical Advisor at the Ministry, noted that a Cabinet Taskforce on Mental Health recommended repealing Section 226 as early as 2019. Despite these recommendations, legislative attempts to repeal the section were previously rejected by the Parliamentary Committee for Health.
To address suicide prevention, the Ministry developed the Suicide Prevention Strategy 2021-2026, targeting a 10% reduction in suicide mortality by 2026. However, the continued criminalization of suicide attempts has hindered progress, increasing stigma and preventing access to essential care and support systems.
Impact of the Ruling
Justice Mugambi’s ruling not only repeals Section 226 but also signals a paradigm shift in addressing mental health issues in Kenya. The decision underscores the importance of treating suicide attempts as a public health issue, ensuring that survivors receive care and support rather than punishment. This landmark judgment is expected to pave the way for more progressive mental health policies and a greater societal understanding of mental health challenges.
