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Introduction
Attempted suicide may be defined as an act in which an individual tries to kill themselves but survives. Until recently, this has been criminalized in the laws. This is all about to change after the decision recently rendered by Justice Mugambi. The Penal Code CAP 63 Laws of Kenya under section 226 states as follows,
``Any person who attempts to kill himself is guilty of a misdemeanor.’’
Attempted suicide was punishable by up to a maximum of two years` imprisonment under section 36 of the Penal Code.
Background of the case
The petition was filed by several petitioners including the Kenya National Commission on Human Rights, Kenya Psychiatric Association and Charity Muturi. The petitioners brought the petition seeking several orders key among them being that section 226 of the Penal Code be declared unconstitutional therefore null and void. They therefore argued that Section 226 of the Penal Code violates the following rights under the Constitution:
a. The right to the highest attainable standard of health, which includes mental health, under Article 43 of the Constitution;
b. The right to equality before the law and non-discrimination on the basis of health status and disability under Article 27 of the Constitution;
c. The right to human dignity protected in Article 28 of the Constitution;
d. The rights of persons with disabilities as protected in Article 54 of the Constitution;
e. The protection of the Best Interest of the Child as well as the rights of the child recognized in Article 55 of the Constitution.
The Petitioners contended that the main driving factors for attempted suicide in Kenya and globally are various undiagnosed and untreated mental health conditions as well as mental disabilities which result in suicidal thoughts that may lead to attempted suicide by persons affected. They thus contended that criminalisation of attempted suicide amounts to punishment of persons with mental disabilities contrary to the provisions of Section 2 of the Persons with Disabilities Act and Articles 27 and 260 of the Constitution. Furthermore, the continued criminalisation of attempted suicide escalates stigma which in turn disincentives persons with mental health disorders and struggling with suicidal ideation and thoughts from seeking help they so desperately need.
The Ministry of Health, an interested party to the petition, argued that it was a point of concern to the Ministry that suicide is among the leading causes of death among young people in Kenya yet suicidal attempts are punishable by law. That following the cabinet resolved to form a Taskforce on Mental Health in Kenya and in its 2020 report, it was noted that for every adult who died by suicide more than 20 have been attempted suicide while a 2018 Kenya National Bureau of Statistics Report confirms that 421 Kenyans die by suicide every year. After the report, there were discussions between the Ministry of Health officials and the Parliamentary Committee for Health where submissions were given for the repeal of Section 226 of the Penal Code. This proposal was however rejected by the Committee.
The respondent and other interested parties urged the court to strike out the petition on the several grounds. They argued that the main reason for criminalization of suicide in Kenya and other African countries is that the punishment given acts as a deterrence of more people attempting to commit suicide, nevertheless, not ignoring the rising need to address mental health issues.
Analysis and Determination
The Court commenced by stating that the Constitution must be interpreted in a liberal, purposive and progressive manner, in order to give effect to its principles and values. It relied on Article 259 of the Constitution which states that,
This Constitution shall be interpreted in a manner that—
(i). Promotes its purposes, values and principles;
(ii). advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
(iii). permits the development of the law; and
(iv). contributes to good governance.
The Court went on to recognize the report by the Taskforce on Mental Health in Kenya which recommended the decriminalisation of suicide. It recommended that this would help to reduce stigma and discrimination and in turn encourage early identification, management and follow-up of people at risk of suicide. The Taskforce also recommended educating the media on responsible reporting of suicide; implementing programmes among young people to build life skills that enable them to cope with the stresses of life.
The Court relied on the definition of a person with mental illness as defined under section 2 of The Mental Health (Amendment) Act No. 27 0f 2022 which states that,
``person with mental illness” means a person diagnosed by a qualified mental health practitioner to be suffering from mental illness, and includes—
(a). a person diagnosed with alcohol or substance use disorder; and
(b). a person with suicidal ideation or behavior.
The Court also relied in the case of Maruti Shripati Dubal Vs. State of Maharashtra on 25 September, 1986, 1987(1) BOMCR499, (1986)88BOMLR589 where the court stated that,
``Those who make the suicide attempt on account of the mental disorders require psychiatric treatment and not confinement in the person cells where their condition is bound to worsen leading to further mental derangement. Those on the other hand who make the suicide attempt on account of acute physical ailments, incurable diseases, torture or decrepit physical state induced by old age or disablement need nursing homes and not prisons to prevent them from making the attempts again.’’
It relied on another case of P. Rathinam Vs. Union of India on 26 April, 1994 1994 AIR 1844, 1994 SCC (3) 394 where the court held that:
``Suicide, as has already been noted, is a psychiatric problem and not a manifestation of criminal instinct. We are in agreement that suicide is really a "call for help" to which we shall add that there is no "call for punishment" in it.’’
The Court therefore determined that persons who attempt suicide are in fact victims of mental illness and not criminals who possess the requisite mens rea to commit this offence. It concluded that 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.
Conclusion
The decision rendered by the Court is a clear demonstration of the progressive nature of the Constitution of Kenya 2010 in its entirety. It also demonstrates the clear mandate of the Judiciary which is to interpret the law in a manner that safeguards the rights and fundamental freedoms of the people. It also illustrates the recourse that the people may take in the event that the legislative arm of government becomes lethargic in carrying out its constitutional mandate of making law and amending the current legislation in the face of draconian legal provisions.
