Decriminalisation of suicide: Calls for change in law that punishes people with mental illness

A middle-aged man during a counselling session with a Psychiatrist. [Getty Images]

Imagine being ill and instead of being treated in order to get better, you are forced to go through a judicial process.

Suicide is one of the frowned-upon symptoms of mental illness but the law in Kenya views it as a criminal offence. In a country where people with mental illness have almost no options, should the victims be blamed? And what are their options?

Suicide remains one of the most controversial topics in Kenyan and African societies. Also known as self-murder, suicide is described as death caused by injuring oneself with the sole intention of dying.

A suicide attempt is when someone harms him or herself with any intent to end his or her life, only that he or she does not die as a result of their actions. In Kenya, those who attempt death by suicide face criminal charges.

In many African cultures, suicide is considered a moral issue and an abomination if not a curse. Kenya's penal code, Section 226 states that any person who tries to kill him or herself is guilty of a misdemeanour, and is liable to either imprisonment of up to two years, a fine or both. The minimum age of prosecution is 8 years old.

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Julian Onyango, a 37-year-old suicide survivor says the law can push people with mental illness to the edge.

"If I have a mental health problem that's pushing me to complete my suicide ideation and instead of helping me, you are taking me to jail. I will automatically complete the suicide there. I'll not come out for help since it's criminal, especially we men," he says.

Julian represents many Kenyans are battling with mental illness.

"Unfortunately, many view it as looking for attention, while we are in need of help," he says.

According to the World Health Organisation, about 700,000 persons die by suicide every year, making it the second leading cause of death among persons aged 15-29 years. It is also among the top ten leading causes of death among all age groups.

In Kenya, at least four Kenyans die by suicide every day, with an average of 20 times as many attempting suicide. These are conservative figures given that suicide is both a taboo subject and an offence hence rarely discussed in public.

Traumatic experiences, coupled with stigma push some to attempt or even complete suicide. For 31-year-old James Karanja who was born intersex, these two factors were responsible for his three attempts to die by suicide.

James lived as a female named Mary Waithera for the first 18 years of his life.

"When I was born, it came as a shock. I was born at home since I didn't lie under the known female/male gender. They took me to a traditionalist and they were given two ultimatums, to kill me or chop off what they considered not of value -- they felt they had to correct me. Thankfully, my grandma decided to raise me," narrates Karanja

Karanja was constantly stigmatised and ostracised. "My grandma restricted my engagements with other children, she was afraid whatever she had hidden for so long would be brought into the light. I grew up a loner," he adds.

Karanja would later join Molo Girls Secondary School. Having been raised as a girl, he got caught in a gender identity crisis when he met other girls.

"The first time I noticed I was different, was when I woke up to shower and realised I didn't have breasts like the other girls. It is when I started withdrawing from other students," says Karanja.

The students were afraid to confront him about his differences as he was chosen to be an assistant head girl who later became the head girl. But the challenges were not completely erased.

"Girls got attracted to me and the school thought I was trying to promote lesbianism so they sent me out of school. Though they called me back and I was able to complete high school, I thought life would then get easier considering it was the teachers who used to ridicule me because I looked different," adds Karanja.

Karanja moved to another town in Nyandarua to start a new life but his hopes were shattered once again since most locals knew him from his earlier days as a female.

"They undressed me to find out why I was presenting myself as a man, when in fact they knew me as a woman. After undressing me, they ran, shocked by what they saw. I have never understood the rationale behind it," says Karanja.

"It was then that I started having suicidal thoughts. I couldn't find a job since I was an outcast and some believed I was a bad omen. I could never walk in peace without people pointing fingers at me," adds Karanja.

Karanja, overwhelmed by the societal stigma and self-loath, attempted suicide thrice. It was in his last attempt that he started taking his mental health seriously.

"I had just attempted suicide. I clocked out of the house. I saw two people laughing while having a conversation. Like a revelation, it dawned on me, that even if I had completed the suicide, the two people would still be laughing. I had to accept myself and start living a positive life," says Karanja.

"I didn't want to kill myself because I didn't want to live, it was just because I wanted to end the pain," adds Karanja

"It is key to indicate that no one is advocating for suicide ideation, attempts or even completion. It is just that death by suicide happens, therefore there is a need to address it," says Petronella Mukaindo, deputy director at Kenya National Commission on Human Rights and a research specialist in policy and legal matters.

By criminalising suicide, some argue that the law is discouraging people suffering from mental health conditions from seeking treatment thus promoting the completion of suicide to avoid serving time in prison.

"I cannot imagine calling the police on my patients while they are seeking treatment. I wouldn't be helping them," says Dr Chitayi Murabula, a Psychiatrist and the president of the Kenya Psychiatrist Association (KPA).

Sixty years since Kenya gained her independence, there are those who feel like the criminalisation of suicide is a colonial relic.

"You have to realise that it is a colonial law from the British colony. Most British colonies still carry out this colonial law, even though the British decriminalised suicide in 1961 way before Kenya's independence. Surprisingly Kenya is still grasping onto it," says Ms Mukaindo.

According to Dr Chitayi, a Psychiatrist and the Head of the Mental Health Department at Kenyatta National Hospital, up to 25 per cent of people visiting the outpatient section in hospitals suffer from mental disorders. And up to 40 per cent of those coming to inpatient sections also fall in the same bracket. Yet about 22 counties in Kenya do not have facilities that can handle these conditions.

"It is costly to be mentally ill in most counties. Patients are forced to travel to receive treatment, and almost all of them get referred to Mathare, leaving Mathare overburdened," says Dr Chitayi.

"Problematic health systems predispose many of our people to suffer from chronic mental health conditions," adds Dr Chitayi

Mental illness is no longer a silent pandemic

This is despite The Mental Health Act section 3 providing a framework to promote mental health and well-being of all persons, including reducing the incidences of mental illness. It also promotes the provision of mental health services in primary health facilities and pushes for the recovery, enhancement, rehabilitation and integration of persons with mental illness into the community.

All these policies are yet to be fulfilled.

According to the 2021-2026 Suicide Prevention Strategy goal, Kenya is seeking to attain a 10 per cent reduction in suicide mortality by the year 2026. Currently, Kenya is facing an increasing burden of mental health illnesses.

Despite the dire situation, the Kenyan Government's total expenditure on mental health is around 0.01 per cent of the total health budget. This underfunding has made mental health care inaccessible to many.

They say children are like a sponge. They observe, absorb and imitate. 37 year old Guyana Onyango Julian is a mental Health Advocate. Julian struggled with Alcoholism for more than 17 years. He says his first interaction with alcohol was when he was only just 8 years old.

"My dad never had a good relationship with alcohol. We all picked it up in my family. Right now I am the only sober one. We lost both my dad and brother to alcohol complications, the toxic cycle made me attempt suicide three times," narrates Julian.

"It started around 2010, I was a young man with a good job,I got suicide ideation and I attempted," recalls Julian.

Julian would later be diagnosed with Bipolar Disorder, a mental condition that is characterised by extreme mood swings. Classified both as a mood disorder and a mental health condition.

His turning point was the year 2019 when he attempted suicide and police were called.

"I was drunk when the police were called to pick me up. Luckily someone offered help in a different way, he said we need to look deeper. It was then that I was taken to Mathare hospital by the same police car that was to take me to prison," says Julian.

"I am sure that if I had not received medical attention and that I was jailed, I would have completed the suicide there," states Julian with a shaky voice.

In June 2019, the fourth President of Kenya Uhuru Kenyatta, in his Madaraka Day speech said, "Depression has today become a common phenomenon and it affects persons from all walks of life and ages."

Following these remarks, a mental health task force was formed. One of its key recommendations was the declaration of mental illness as a national emergency of epidemic proportions.

On World Suicide Prevention Day 2020, the Kenya National Commission on Human Rights called upon the legislature to decriminalise attempted suicide through the repealing of section 226 of the Penal Code.

In 2021, the Penal Code Amendment bill was presented to parliament, In a bid to repeal several articles. Including section 226 of attempted suicide, and I quote,

"The Bill decriminalises attempted suicide to ensure that victims are provided with the necessary assistance in line with the Mental Health Act. Attempted suicide is a mental health issue which should not be subject to a criminal process."

In 2022 the Kenya National Commission on Human Rights (KCHR) filed a constitutional petition to strike out the section as unconstitutional. Charity Muturi, a person living with mental illness, and Kenya Psychiatric Association were co-petitioners. The appeal says the law in its current state violates the rights of people living with mental health conditions. The case was mentioned on May 18, 2023, before Judge Mugure Thande.

This paints a complete picture of the sad state of mental health in Kenya. A sad state that goes against the constitution of Kenya among other enshrined international human rights and laws.

Article 43 (1 )(a) of the Constitution, clearly states that every Kenyan has a right "to the highest attainable standard of health, which includes the right to health care services, including reproductive health care".