High Court Throws Out Law Criminalising Attempted Suicide

The High Court of Kenya, in a significant ruling, has declared Section 226 of the Penal Code that criminalises attempted suicide as unconstitutional. 

High Court Judge Lawrence Mugambi on Thursday, January 9 ruled that the section in the Penal Code was unconstitutional for violating Articles 27, 28, and 43 of the Constitution of Kenya.

The judge added that it indignifies and disgraces victims of suicide ideation in the eyes of the community for actions that are beyond their mental control.

“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,” part of the ruling read.

“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.”

Mugambi went on to elaborate that the existence of Section 226 exposed the survivors of suicide and potential victims with suicide ideation to possible reprisals which eroded their right to have the highest attainable standard of health as outlined in Article 43 (1) of the Constitution.

The ruling was celebrated by a section of lawyers and human rights groups, marking an end to a very long battle to decriminalise attempted suicide in the country due to mental health reasons.

On August 13, 2024, Central Organization of Trade Unions (COTU) Secretary General Francis Atwoli's son, Lukoye Atwoli, petitioned the National Assembly to have Section 226 of the Penal Code which imposes among other heavy penalties, imprisonment for those attempting suicide, repealed.

National Assembly Speaker Moses Wetangula revealed to lawmakers that the petition was lodged to his office, in line with Article 119 of the Constitution which accords any person the right to petition Parliament to consider any matter within its authority.

Before today's decision, Section 226 of Kenya's penal code stipulated that any person attempting to take their own life would be guilty of a misdemeanour, subject to imprisonment of up to two years, a fine, or both, with the minimum age of prosecution set at 8 years old.

However, Lukoye expressed issue with the provision, holding that criminalizing suicide attempts not only failed to address underlying mental health issues but also perpetuated stigma and shame surrounding mental illness.

This is despite the provisions of section 2 of the Mental Health Act (Cap 248) which defines includes in its interpretation of a person with mental illness as a person with suicidal ideation or behaviour. Moreover, it inhibits accurate data collection and hinders suicide prevention efforts.

The criminalisation of suicide in Kenya has been a thorny issue that attracted several petitions in the past, a majority of whom classified it as a disease.

A section, however, opposed its decriminalisation arguing that not all cases were mental, some were an escape route after committing a heinous crime.

Counsellors, medics, and psychologists recommend seeking help whenever you experience any mental health issue. Call the Kenya Red Cross toll-free hotline, 1199, for support.