The High Court in Nairobi has declared a section of Kenya’s Penal Code that criminalized attempted suicide unconstitutional.
Justice Lawrence Mugambi, in his Judgement, emphasized that the application of Section 226 of the Penal Code which stipulates that those who attempt suicide could face up to two years in prison, a fine, or both violates fundamental human rights enshrined in the Constitution.
“A declaration is hereby made that section 226 of the Penal Code is unconstitutional for violating Articles 27, 28, and 43 of the Constitution,” he ruled.
He explained that the law “shames victims of suicide ideation” for actions that are beyond their control, making it a violation of their inherent dignity under Article 28 of Kenya’s Constitution.
“The criminalization of attempted suicide is discriminatory,” Justice Mugambi remarked, “It punishes individuals suffering from mental health issues, some of whom are unable to control their impulses, placing them in a worse situation and subjecting them to stigma.”
Justice Mugambi agreed with the petitioners’ argument, stating that Section 226 of the Penal Code punishes individuals suffering from mental health issues and hinders efforts to address the root causes of suicidal behavior.
He emphasized that suicidal ideation often stems from untreated conditions such as depression, substance abuse, and psychosis.
“The continued criminalization of attempted suicide only shames individuals for conditions they cannot control,” the judge stated
Justice Mugambi’s ruling was based on Articles 27 and 28 of Kenya’s Constitution, which guarantee equality before the law and the right to dignity.
The case, which was filed by the Kenya National Commission on Human Rights (KNCHR), the Kenya Psychiatric Association, and mental health advocate Charity Muturi, challenged Section 226 of the Penal Code on several grounds.
The petitioners contended that criminalizing suicide attempts as a legal offense punished those in need of medical care and exacerbated the stigma surrounding mental health issues.
In her affidavit, One of the petitioners Charity Muturi, a mental health advocate who has personally struggled with bipolar disorder, detailed the challenges faced by those who experience suicidal thoughts.
“I have struggled with suicidal ideation for years,” she shared, “and the stigma that surrounds it only deepens the sense of hopelessness. The law should focus on providing care, not punishment.”
Muturi emphasized how societal rejection, including religious practices refusing to bury those who die by suicide, leaves individuals facing mental health crises even more isolated.
She also pointed to the discouraging effect the criminalization of suicide attempts has on those seeking help. “The fear of being reported to the police kept me from seeking help for years,” she recalled. “The law, instead of offering support, pushes people deeper into despair.”
Dr. Bernard Mogesa, who filed an affidavit on behalf of the petitioners, echoed these concerns, stating that Section 226 disproportionately affects individuals suffering from undiagnosed or untreated mental health conditions.
“The real issue behind suicide attempts is mental health,” he asserted. “These are not criminal acts; they are cries for help that demand compassion and care, not jail time.”
Dr. Boniface Chitayi, a psychiatrist with over a decade of experience, also contributed to the case, providing expert testimony on the relationship between mental illness and suicide.
“Suicide attempts are not acts of criminal intent but symptoms of deep psychological distress,” he explained. “To criminalize these attempts is to punish individuals for their illnesses.”
The Ministry of Health, which has been actively involved in the development of mental health policies, also supported the petition.
In his affidavit, Dr. Patrick Amoth, Chief Technical Advisor at the Ministry of Health, highlighted the government’s recognition of suicide as a public health issue. He referenced a 2020 report from the Mental Health Taskforce, which recommended the repeal of Section 226.
“The Ministry of Health acknowledges the growing epidemic of suicide and supports the decriminalization of suicide attempts,” Dr. Amoth stated.
