Kenya's Supreme Court in a landmark ruling that criminalizing attempted suicide is unconstitutional

NAIROBI - A Kenyan judge has declared unconstitutional parts of laws that criminalise attempted suicide. In a landmark ruling Thursday, Justice Lawrence Mugambi of Kenya's Supreme Court said Section 226 of the Penal Code is unconstitutional because it punishes people with mental problems over which they may have little or no control.

While Article 43 of the Constitution states that a person has the right to "the highest attainable standard of health", the Criminal Code states that "anyone who attempts suicide is guilty of a misdemeanour and is liable to imprisonment for up to two years, a fine or both", with the minimum age for prosecution of this offence set at eight years.

"My conclusion is that, applying the principle of purpose and effect of constitutional interpretation, Section 226 of the Penal Code is inconsistent with Article 27 of the Constitution because it criminalizes the problem of mental health, thereby sanctioning discrimination on the basis of medical condition, which is unconstitutional. It also denigrates and dehumanizes the victims of suicidal ideation in the eyes of the society for acting beyond their mental control," Mugambi ruled.

The judgment was issued following a court petition filed by the Kenya National Commission on Human Rights (KNCHR) and the Kenya Psychiatric Association, among others, which argued that the main factors that increase the number of suicide cases include "undiagnosed and untreated mental disorders as well as mental disabilities that lead to suicidal ideation which may lead to suicide attempts by those affected."

"Today's judgment is a call for an open and honest conversation between individuals, communities, organisations and government and is a far-reaching step towards raising awareness, fighting stigma and discrimination," KNCHR said in a statement, calling on communities and families to provide "a safe space where people affected by mental health problems can share their experiences and seek support without fear of stigma or discrimination".

In the past, human rights groups and doctors in Kenya have failed in a bid to decriminalise attempted suicide, arguing that such people require specialised medical care.

In March 2024, representatives of Kenya's leading psychiatric hospital called on parliament to consider repealing the incriminated law to change perceptions and stigma.

The Kenyan Ministry of Health, in its 2021-2026 suicide prevention strategy, acknowledges that suicide data will not be available due to "fragmented reporting systems" difficult to obtain, but states that the country is "an age-standardized suicide rate of 11.0 per 100,000 population, which translates to approximately four deaths by suicide per day".

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