Attempted suicide no longer a crime in Kenya, court rules

The High Court has declared that Section 226 of the Penal Code, which criminalised attempted suicide, is unconstitutional.

Justice Mugambi ruled on Thursday, that the provision violated Articles 27, 28, and 43 of the Constitution of Kenya.

The case was initiated by the Kenya National Commission on Human Rights, Charity Muturi, and the Kenya Psychiatric Association against the Attorney General and the Director of Public Prosecutions.

Several interested parties, including the Cabinet Secretary for Health, the National Council for Persons with Disabilities, and the Coalition Action for Preventive Mental Health Kenya, were also involved.

The Law Society of Kenya also participated as amicus curiae.

The petitioners argued that the criminalisation of attempted suicide disproportionately affected individuals suffering from mental health issues, such as depression, anxiety, and other conditions that lead to suicidal ideation.

They contended that punishing survivors of attempted suicide amounted to discriminating against persons with mental disabilities, violating both the Constitution and the Persons with Disabilities Act.

Justice Mugambi agreed, stating that Section 226 of the Penal Code was unconstitutional for endorsing discrimination based on health.

“It is my finding that applying the purpose and effect principle of constitutional interpretation, Section 226 of the Penal Code offends Article 27 of the Constitution by criminalising a mental health issue, thereby endorsing discrimination on the basis of health, which is unconstitutional,” he ruled.

The judge further noted that criminalising attempted suicide undermined the dignity of survivors and exposed them to societal shame for actions driven by factors beyond their control.

“It also indignifies and disgraces victims of suicide ideation in the eyes of the community for actions that are beyond their mental control, which is a violation of Article 28,” he said.

Additionally, the court found that the provision eroded the right to the highest attainable standard of health guaranteed under Article 43(1) of the Constitution.

“The existence of Section 226 exposes the survivors of suicide and potential victims with suicide ideation to possible reprisals, thereby eroding the right to have the highest attainable standard of health," Justice Mugambi ruled.

The court declared Section 226 unconstitutional and ordered that no further punishments be meted out under its provisions.

However, each party was directed to bear its own costs in the matter, given the public interest nature of the case.