Opinion split on lobby's push to decriminalise attempted suicide

Senators and Members of Parliament have backed the Attorney General in opposing a court case seeking to decriminalise attempted suicide.

Under the Penal Code, Section 226 states that any person attempting to take their own life is guilty of a misdemeanour and subject to imprisonment of up to two years, a fine or both. But the lawmakers, in their separate submission before Justice Lawrence Mugambi, argue that the rationale behind Section 226 is to protect life and deter other persons from committing suicide.

National Assembly’s lawyer Josphat Kuyoni said the Constitution gives Kenyans a premium right to life, therefore, one is not allowed to either self-harm or commit murder. “It is therefore our submission that while our Constitution puts a premium on the value of freedom, it has not inscribed liberty of death as a fundamental right in our Bill of Rights neither has it inscribed the freedom to inflict harm on one’s self,” said Kuyoni.

Kuyoni said jailing a person who has tried to commit suicide makes it unappealing to others to try the same. He claimed Gambia, Ghana, Malawi, Nigeria, and Kenya’s neighbours Tanzania and Uganda have also retained the colonial law in their statute books.

The Senate on the other hand told the court that it is the will of Kenyans to punish those who attempt to end their lives. It claimed Kenyans take legislative stands through MPs, hence, it should be presumed that Kenyans wanted to protect sanctity of life by punishment.

Although National Assembly and Senate’s position on attempted suicide is different from that of the AG, they urged the court to dismiss the case filed by Kenya Psychiatrists Association (KPA), Kenya National Commission on Human Rights (KNHRC) and Charity Muturi.

The AG, government’s principal legal advisor, urged the court to find that the case does not demonstrate a violation of any rights. At the same time, the AG argues he is not responsible for legislation.

“The respondent has not at any time violated the rights of the petitioners or the class represented by the petitioner. Judicial intervention should be limited to acts manifestly in breach of the law or where the court is satisfied that the decision-maker reached a wrong decision influenced by other considerations other than the law, evidence, and the duty to serve the interest of justice,” states the AG.

On the other hand, the Ministry of Health took a different stand by backing the psychiatrist’s case. The ministry argued that it in fact took a report to Parliament hoping MPs would repeal the current law but they rejected it.

Acting Director General of Health Dr Patrick Amoth told the court that the number of Kenyans dying by suicide and those who have attempted to kill themselves has grown to epidemic levels. He was of the view that such persons need to be treated in hospital and not punishment in jail.

In Kenya, the law prohibits aiding and attempting to commit suicide. Further, the law provides that any person who aids another in committing suicide is guilty of a felony and liable to imprisonment for life.

The Law Society of Kenya (LSK) sided with Amoth and psychiatrists in asking Justice Mugambi to declare Section 226 unconstitutional. In its submissions, LSK stated that suicidal behaviour is caused and contributed by either biological, sociological, demographic, economic and environmental factors, and which are beyond control of the victims.

It averred that only 20 countries worldwide, including Kenya have sustained laws criminalising attempted suicide.

Further, LSK observed that reports by the World Health Organisation estimated that globally, over 800,000 people die by suicide every year making suicide the fourth leading cause of death.

In Kenya, the court heard that data estimates that at least 408 people die by suicide yearly. It emerged that number of suicide cases reported in Kenya had risen by 58 per cent between 2008 and 2017 to reach 421 cases. In 2019, former President Uhuru Kenyatta said the country was facing a mental health crisis. He directed the Health ministry to implement programmes and policies to address the problem.

On December 11, 2019, the ministry constituted a task force that a year later presented a report titled ‘Mental Health and Well-being; Towards Happiness and National Prosperity 2020’. The task force’s recommendation was that Section 226 should be repealed to enable persons with depression to seek early treatment and improve the accuracy of data on suicide.

Psychiatrists told court that in every completed suicide, the victim had unsuccessfully tried at least 20 times to kill themselves. PSA argued that jailing a suicide survivor is counterproductive as it instead deters then from seeking help.

“The criminalisation of attempted suicide deters patients from seeking help, does not provide a conducive legal environment for care givers to openly discuss suicide attempts, reinforces societal stigma on suicide and thus hinders the State from establishing sufficient mechanisms backed up by resources to prevent successive attempts,” Justice Mugambi heard.

Muturi, PSA and KNHRC urged the court to intervene and have the section expunged from Kenya’s law books. They argued that the drive for a person to commit or attempt suicide is undiagnosed and untreated mental health condition as well as mental disability and not a criminal thought. “The petitioners contend that persons who have suicidal thoughts or who attempt suicide require medical support or assistance and not criminalisation or punishment,” the judge heard.

They also argued that criminalising attempted suicide is tantamount to punishing persons with mental conditions. 

KNHRC told the court that the numbers could be higher as not all persons who have attempted suicide come out to report the same or seek help out of fear that they would be arrested. The human rights watchdog stated that suicide is the second leading cause of death among youths aged between 15 to 29 years globally.