In a landmark ruling, the High Court of Kenya has declared Section 226 of the Penal Code, which criminalized attempted suicide, unconstitutional. The decision, delivered by Justice Lawrence Mugambi on Thursday, January 9, 2025, marks a significant shift in addressing mental health issues in the country.
Justice Mugambi ruled that the section violated Articles 27, 28, and 43 of the Constitution, which protect equality, human dignity, and the right to the highest attainable standard of health. He noted that criminalizing attempted suicide perpetuates stigma and discrimination against individuals grappling with mental health challenges.
“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,” the judge stated. “It also indignifies and disgraces victims of suicide ideation in the eyes of the community for actions beyond their mental control, violating Article 28.”
Justice Mugambi further emphasized that the existence of Section 226 exposed survivors of suicide attempts and individuals with suicidal ideation to potential reprisals, undermining their right to access healthcare as outlined in Article 43(1) of the Constitution.
A Long Road to Justice
The ruling comes after years of advocacy by mental health activists, lawyers, and human rights groups. One of the key milestones in this journey was a petition submitted to the National Assembly on August 13, 2024, by Lukoye Atwoli, son of COTU Secretary General Francis Atwoli.
The petition called for the repeal of Section 226, arguing that penalizing suicide attempts failed to address the underlying mental health issues while perpetuating stigma. Lukoye highlighted that the criminalization hindered accurate data collection and effective suicide prevention efforts.
Before this historic ruling, Section 226 of Kenya’s Penal Code categorized attempted suicide as a misdemeanor punishable by up to two years’ imprisonment, a fine, or both. Alarmingly, the law allowed for the prosecution of individuals as young as eight years old.
Opposing Views and Wider Implications
The decriminalization of attempted suicide has sparked mixed reactions. While advocates see the ruling as a step toward destigmatizing mental health and improving access to care, critics argue that not all suicide attempts stem from mental illness, with some being linked to criminal acts.
Nonetheless, medical professionals, counsellors, and psychologists have praised the ruling, urging individuals experiencing mental health challenges to seek support.
“Decriminalizing suicide will encourage more people to come forward and seek the help they need without fear of legal repercussions,” noted a representative from the Kenya Red Cross.
For immediate mental health support, the Kenya Red Cross toll-free hotline 1199 is available to anyone in need.
