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Kenya's High Court has declared Section 226 of the Penal Code, which criminalizes attempted suicide, unconstitutional.
The decision, led by Judge Lawrence Mugambi, highlights significant violations of constitutional rights, specifically under Articles 27, 28, and 43. Justice Mugambi articulates that criminalizing attempted suicide exacerbates the already existing social stigma faced by individuals grappling with suicidal ideation, a condition he argues is often beyond their control.
“Section 226 of the Penal Code offends Article 27 of the Constitution by criminalizing a mental health issue, thereby endorsing discrimination based on health, which is unconstitutional,” the ruling asserts.
Moreover, the judgment emphasizes that labelling mental health conditions as criminal offences not only undermines individual dignity but also infringes on personal rights as protected under Article 28. The ruling further highlights the risks associated with the retention of Section 226, particularly that it may deter individuals from seeking the mental health care they require due to fears of legal repercussions, violating their right to health as outlined in Article 43(1) of the Constitution.
This ruling follows a petition filed by the Kenya National Commission of Human Rights (KNCHR) and the Kenya Psychiatric Association on February 3, 2022. The joint petition advocates for the repeal of Section 226, which could lead to up to two years of imprisonment or fines for those convicted of attempted suicide. The petitioners criticize the government for neglecting its obligation to uphold constitutional principles and defend the rights of citizens living with mental health challenges.
“The Petitioners fault the Kenyan government for failing in its constitutional mandate to uphold the Constitutional principles and values which include the protection of the rights of its citizens and ensure their freedom from discrimination and the protection of persons with disabilities,” part of the petition read.
According to the petitioners, the primary causes of attempted suicide in Kenya are frequently undiagnosed and untreated mental health issues, highlighting a need for therapeutic support rather than punitive measures. Mental health professionals including counsellors, doctors, and psychologists are encouraging individuals to seek assistance when experiencing mental health difficulties, with resources like the Kenya Red Cross toll-free hotline, 1199, available for support.