The government is torn between abolishing the law that makes it a crime to attempt suicide or leave it as is. In separate responses before the High Court, the Attorney General and the Ministry of Health are reading from different scripts.
On one hand, the AG wants the High Court to dismiss a case filed by Kenya Psychiatrists Association, Kenya National Commission on Human Rights (KNHRC) and Charity Muturi. On the other, the Health ministry has admitted that the country needs to abolish Section 226 of the Penal Code.
The AG, the government’s principal legal advisor, urges the court to find that the case does not demonstrate a violation of any rights. At the same time, he argues that he is not responsible for legislation.
“The respondent has not at any time violated the rights of the petitioners or the class represented by the petitioner. Judicial intervention should be limited to acts manifestly in breach of the law or where the court is satisfied that the decision-maker reached a wrong decision influenced by other considerations other than the law, evidence, and the duty to serve the interest of justice,” the AG argues.
But the ministry narrates its efforts to have the country change its strategy on dealing with attempted suicide.
It says it took a report to Parliament hoping MPs would repeal the current law, but it was rejected.
“While the ministry acknowledges and appreciates the growing epidemic of suicide and attempted suicide, it has made considerate efforts towards decriminalisation of suicide. Ultimately, decriminalisation of suicide can only be done by the legislative arm of government,” the response by acting Director General of Health Dr Patrick Amoth reads in part.
He notes that a task force report in 2020 established that from the number of adults who committed suicide, at least 20 had previously attempted suicide.
According to Section 226 of the Penal Code, anyone who attempts to kill himself or herself is guilty of a misdemeanor. The punishment is two years in prison, a fine or both. The petitioners want the court to intervene and have the section expunged. They argue 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.
The human rights bodies argue 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,” court papers read in part.
They sued Attorney General and roped in the Director of Public Prosecutions, Cabinet Secretary, the National Council for Persons with Disabilities, and Coalition Action for Preventive Mental Health Kenya as interested parties.
The petitioners also argue 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.
In 2019, former President Uhuru Kenyatta said the country was facing a mental health crisis. He directed the Health ministry to implement programmes and policies to address the problem.
On December 11, 2019, the ministry constituted a task force that a year later presented a report titled Mental Health and Wellbeing; Towards Happiness and National Prosperity 2020.
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The task force’s recommendation was that Section 226 should be repealed to enable persons with depression to seek early treatment and improve the accuracy of data on suicide.
The court heard 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,” psychiatrists, KNHRC and Muturi argue.