The discourse surrounding the decriminalization of suicide is comprehensively outlined in Constitution Petition No. 045 of 2022.
An MP has moved the National Assembly to decriminalise suicide and attempted suicide in a proposed law before the House that, if enacted, will require interventions to embrace a compassionate approach for those who attempt suicide rather than charging them in court.
The Penal Code (Amendment) Bill 2024 by Mathare MP Anthony Oluoch proposes to delete section 226 of the Penal Code that slaps criminal liability on individuals who attempt suicide.
The Bill precedes a High Court judgement early this year that decriminalised attempted suicide, and its enactment is critical to delete the section from the country’s Statute book, effectively implementing the court judgment.
“The proposed amendment will decriminalize suicide and enable attempted suicide to be seen as a serious problem requiring mental health interventions and not be treated as a criminal offense,” the Bill reads.
Section 226 of the Penal Code states that any person who attempts to kill himself is guilty of a misdemeanour punishable by up to two years in prison, a fine or both, with the minimum age of prosecution for the offence set at eight years old.
This section of the law not only stigmatises individuals living with mental health crises, who are largely blamed for suicide cases, but also discourages them from seeking mental help.
On January 9, 2025, High Court Judge Lawrence Mugambi declared that the section violates constitutional guarantees of dignity, equality and the right to the highest attainable standard of health.
The judgment drew from Article 43 (1) of the constitution of Kenya, which states that a person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.
“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 criminalizing a mental health issue thereby endorsing discrimination on the basis of health, which is unconstitutional," Justice Mugambi ruled.
The ruling sets a precedent which other nations in the world may follow as a major milestone and victory by mental health advocates, who have long called for changes to the law to recognise suicide as a mental health issue and not a crime.
Read: Let’s talk suicide
According to Noncommunicable Diseases (NCD) Alliance of Kenya, an individual who was a leading petitioner “in this landmark” case, working “closely” with NCD Alliance Kenya argued that decriminalizing suicide “was an important step to ensuring that people living with mental health disorders are able to seek care when it is needed.”
However, two months prior to the ruling, the leading petitioner died by suicide.
The Bill, in its memorandum of objects and reasons, notes that reducing the global suicide rate by one-third by 2030 is a target of both the United Nations (UN) Sustainable Development Goals (SDGs) and the World Health Organization (WHO) global mental health action plan.
“Various countries have committed to taking measures in this direction,” the Bill reads.
The WHO policy brief on decriminalisation of suicide provides that an impediment to meeting this goal is the fact that suicide and suicide attempts remain illegal “in at least 23 countries worldwide.”
“Decriminalisation of suicide and suicide attempts represents one critical step governments can take in their efforts to prevent suicide.
Further, criminalising suicide will not prevent people from acting on suicidal thoughts, it simply stops them from reaching out and seeking help in times of acute crisis,” reads the Bill.
The Kenya National Commission on Human Rights (KNCHR) has previously petitioned parliament to repeal section 226 of the Penal Code Act, noting individuals who attempt to kill themselves have mental issues and deserve medical care instead of being arrested and charged in court.
KNCHR made its case before the Ad hoc committee of the Senate that investigated the Shakahola forest mass killings in Kilifi.
“Science has confirmed that individuals who attempt to end their lives have mental illness,” KNCHR commissioner Prof Mariam Mutugi told the Senate Ad hoc committee that was chaired by Tana River Senator Danson Mungatana.
“The same science has proved that a person of stable mind can never have attempts on their lives. Rather than prosecute, people with suicidal tendencies should be taken to medical care facilities because they need help,” Prof Mutugi added.
