Attempted suicide is no crime, group tells judge


Is suicide a mental issue or a crime? This is the question the court is being asked to determine in a case seeking to declare a section of the Penal Code that outlaws attempted suicide as being unconstitutional.

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 Kenya Psychiatrists Association, Kenya National Commission on Human Rights (KNHRC) and Charity Muturi, however, want the court to intervene and have the section expunged from Kenya’s law books.

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.

According to their papers filed before High Court judge Anthony Mrima, they 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,” said court papers read in part.

They have sued Attorney General Kihara Kariuki and roped in Director of Public Prosecutions Noordin Haji, Cabinet Secretary Mutahi Kagwe, 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.

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The task force’s recommendation was that Section 226 should be repealed in order to enable persons with depression to seek early treatment and improve the accuracy of data on suicide.

Justice Mrima 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,” psychiatrists, KNHRC and Muturi argue.

According to them, the Penal Code section denies persons who have attempted suicide their right to the highest attainable health standards. 

It is alleged1,442 Kenyans were reported to have attempted suicide between 2015 and 2018.