High Court declare criminalisation of attempted suicide illegal

Justice Mugambi indicated that, “applying the purpose and effect principle of constitution interpretation, Section 26 of the Penal Code offends Article 27 of the constitution by criminalizing mental health issue thereby endorsing discrimination on the basis of health which is unconstitutional.”

He added that the act also indignifies and disgraces victims of suicide ideation in the eyes of the community for actions that are beyond their mental control.

The Kenya National Commission on Human Rights  through Dr. Bernard Mogesa filed a petition seeking the court’s indulgence in declaring Article 26 of the constitution as illegal which according to his affidavit claims that it violates the rights of persons with mental disability.

Being the designated agency in Kenya for monitoring the persons with disabilities, KNCHR indicated that those with mental illness are not excluded under Article 33(2) of the UN convention on the rights of persons with disabilities.

He deponed that the constitution sought to protect and promote and fundamental freedoms including the right to highest attainable stand and of health and access healthcare services as envisaged under Article 43 of the constitution.

“The constitution underscores the principle of equality non-discrimination under Article 27, the right to inherent human dignity at Article 28 protection of the rights of persons with disabilities at Article 54 and protection of the rights of children under Article 53.”

He stated that Kenya was ranked position six by World Health Organization in Africa with the highest levels of depression with at least 1.9 million Kenyans diagnosed suffering depression hence continued criminalization of attempt suicide increases the stigma and trauma which end up denying these vulnerable persons the healthcare needed as well as psychological, family and community support.

The petitioner faulted the Kenyan government for failing in it’s constitutional mandate to uphold the constitutional principles and values which include the protection of the rights of its citizens and ensure their freedom from discrimination and the protection of persons with disabilities.

Section 226 of the constitution criminalizes the attempt suicide by providing a punishment of two years imprisonment, fine or both upon conviction pursuant to section 36 of the Penal Code.

According to Dr Boniface Chitayi a medicine practitioner and second petitioner scientific studies indicate that, suicidal behavior is caused by mental illnesses such as depression, substance use and psychosis which constitute the most relevant risk factors, but also anxiety, personality, eating and trauma related disorder.

He concluded by saying that, “discriminalisation of the attempted suicide will lead to increased access to mental healthcare, reduced stigma and discrimination, reduced fear of seeking help, strengthened social support systems, reduced death by suicide and implementation of suicide prevention strategy based on current scientific evidence.”

The petitioner avers that the principle role of the Attorney General is to is to promote and uphold the rule of law, protecting of the public interest, human rights and democracy as stated by Article 156 of the constitution.

He also submitted that there is need for the court to grant structural interdicts owing to the numbers of individuals who have been convicted and sentenced under section 226 of the Penal Code, declare the need to establish a register of the said persons and to make provisions to rectify the constitutional violations encountered by the said persons.

In addition, Coalition Action for Preventive Mental Health Kenya who appeared as an interested party submitted that, Kenya has eradicated all forms of discrimination and punishment to persons with disabilities, it has retained section 226 of the Penal Code which criminalizes attempted suicide which is a tragic manifestation of mental illness.

This criminalisation limits the fundamental rights and freedoms of those whose mental illnesses have caused to harm themselves.

They expounded that criminalization of attempted suicide has no effect on reducing the number of suicide attempts which has been proved by the studies conducted.

The Law  Society of Kenya LSK further submitted that criminalization of the attempted suicide implies that “people who suffer severe pain inflicted by mental illnesses suffer the additional trauma and stigma of being viewed as criminals.

They concluded by saying that section 226 of the Penal Code is a revictimization of already vulnerable victims while placing those already socially and economically vulnerable at even higher disadvantage.

While delivering the judgement, Justice Mugambi said that the persuasive decisions are intrinsically convincing and in tandem with our own section 2 of the Health Amendment Act and the Ministry of Health Policy that persons who attempt suicide are in fact victims of mental illness and not criminals who possess the requisite mens rea (the guilty mind) to commit this offence.

In conclusion, he said that “for the purpose and effective principle of the constitutional interpretation, Section 226 of the penal code offends Article 27 of the constitution by criminalizing a mental health issue thereby endorsing discrimination on the basis of health on the basis which is unconstitutional.”

In the final orders, justice Mugambi Mugambi indicated that, “Section 226 of the penal code is unconstitutional for violating articles 27,28 and 43 of the constitution