Mental Health and the Law: Kenya’s High Court Declares Criminalizing Attempted Suicide Unconstitutional
Constitutional Petition No. E045 of 2022 – Kenya National Commission on Human Rights & 2 Others vs. The Honourable Attorney General & 4 Others (Cabinet Secretary for Health, National Council for Persons with Disabilities, Coalition Action for Preventive Mental Health Kenya) and the Law Society of Kenya (Amicus Curiae)
This case arose from a Petition challenging the constitutionality of Section 226 of the Penal Code, Cap 63, Laws of Kenya, which criminalized attempted suicide and prescribed punishment of up to two years imprisonment, a fine, or both, under Section 36 of the Penal Code. The Petitioners, including the Kenya National Commission on Human Rights, Charity Muturi, and the Kenya Psychiatric Association, argued that this law violated several fundamental rights enshrined in the Constitution of Kenya, particularly concerning persons with mental health conditions and disabilities. They contended that attempted suicide is primarily driven by undiagnosed and untreated mental health issues and disabilities.
Key Legal Issues
The court was tasked with determining two primary issues:
- Whether it had the jurisdiction to hear the Petition, considering arguments related to the doctrine of exhaustion of remedies (petitioning Parliament under Article 119(1)) and the doctrine of separation of powers (regarding policy decisions).
- Whether Section 226 of the Penal Code, as read with Section 36, was inconsistent with the Constitution.
Judgment Analysis
The court first addressed the jurisdictional challenges raised by the Respondent, the 5th Interested Party, and the 6th Interested Party.
Regarding the argument that the court should not interfere with policy decisions made by Parliament and the Government, the court acknowledged that judicial intervention should generally be limited in such areas. However, it held that this deference does not apply if the policies are inconsistent with constitutional principles and values, particularly those in Article 10, which bind all State Organs and officers when enacting, applying, or interpreting any law or making public policy decisions. The court referenced the South African case of Minister of Health and Others vs. Treatment Action Campaign and Others, which underscored the judiciary’s primary duty to the Constitution and its obligation to find state policy inconsistent if it fails constitutional obligations. The court concluded that a policy or law conflicting with the Constitution cannot escape judicial scrutiny.
On the argument that the Petitioners failed to exhaust the remedy of petitioning Parliament under Article 119(1) before coming to court, the court found this contention “not forthright”. It noted the evidence presented by Dr. Patrick Amoth on behalf of the Cabinet Secretary for Health (2nd Interested Party) that a Taskforce on Mental Health had already recommended the repeal of Section 226, and the Ministry of Health had engaged the Parliamentary Committee on Health, which rejected the proposal. Furthermore, the court cited Council of Governors & 3 others v Senate & 53 others, which held that Article 119(1) does not preclude the High Court’s jurisdiction under Articles 22, 258, and 165(3)(d) to determine the constitutionality of legislation. The court affirmed its constitutional mandate as the “final custodian of the Constitution” to invalidate laws inconsistent with the Constitution. Thus, the court rejected the jurisdictional objections.
Turning to the constitutionality of Section 226, the court set out the principles of constitutional interpretation, emphasizing a liberal, purposive, and progressive approach that promotes the Constitution’s values and principles, advances human rights, and permits the development of the law, as guided by Article 259. It also noted the presumption of constitutionality for statutes but stressed that the burden of proof lies on the challenger. A critical principle highlighted was the need to examine both the purpose and effect of the impugned statute. Citing R vs Big M Drug Mart Ltd and Olum and another vs Attorney General, the court stated that either an unconstitutional purpose or an unconstitutional effect is sufficient to invalidate legislation.
The court acknowledged the Petitioners’ argument that attempted suicide is a manifestation of mental illness, a position supported by the 4th Interested Party. Crucially, the court referenced the Mental Health (Amendment) Act No. 27 of 2022, which explicitly defines “person with mental illness” to include a person with suicidal ideation or behaviour. This statutory definition validated the Petitioners’ contention that attempted suicide is a health issue. The court also noted that the Kenya Mental Health Policy 2015 – 2030 recognizes persons with mental illnesses as persons living with disabilities.
The court found that criminalizing attempted suicide, given its classification as a mental health issue/disability, offends the constitutional right to non-discrimination on the basis of health status and disability under Article 27(4). It further held that this criminalization indignifies and disgraces victims, violating the right to human dignity under Article 28. By creating stigma and deterring individuals from seeking help, Section 226 impedes the right to the highest attainable standard of health, including mental health, as guaranteed by Article 43(1)(a).
The court considered the Respondent’s argument that Section 226 serves the purpose of protecting the sanctity of life and deterring self-destructive behaviour. However, it found this argument flawed, stating that suicide ideation is a mental health issue and not a “willed act” of a person of sound mind. To bolster this point, the court drew on persuasive authorities from India and the United States. It cited the Bombay High Court case of MARUTI SHRIPATI DUBAL VS. STATE OF MAHARASHTRA, which found that punishing attempted suicide was arbitrary and failed as a deterrent, arguing that those who attempt suicide due to mental disorders or physical ailments require treatment, not prison. It also referenced the Supreme Court of India case of P. RATHINAM VS. UNION OF INDIA, which similarly held that attempted suicide is a “psychiatric problem,” a “call for help,” and that Section 309 of the Indian Penal Code (criminalizing attempted suicide) was cruel, irrational, violated Article 21 (right to life and personal liberty), and should be effaced from the statute book to humanize penal laws and align with global approaches. The court also included the US case of COMMONWEALTH VS. WRIGHT, where it was held that attempted suicide is a result of disease, not a crime, and such individuals should be taken to a hospital, not prison. The court found these decisions “intrinsically convincing and in tandem” with Kenya’s own legal and policy framework on mental health.
Applying the purpose and effect principle, the court concluded that the effect of Section 226 was to criminalize a symptom of mental illness, thereby endorsing unconstitutional discrimination and violating rights to dignity and health.
Consequently, the court declared Section 226 of the Penal Code unconstitutional for violating Articles 27, 28, and 43 of the Constitution. Given the public interest nature of the Petition, the court ordered that each party bear their own costs.
Implications of the Decision
The judgment in Constitutional Petition No. E045 of 2022 represents a significant shift in the legal and societal approach to attempted suicide in Kenya.
For individuals who attempt suicide, the most direct implication is the removal of the threat of criminal prosecution and imprisonment. They are no longer legally viewed as criminals but are recognized as individuals likely suffering from a mental illness requiring health and social support. This could significantly reduce the stigma associated with seeking help, encouraging individuals to reach out to mental health professionals and support systems without fear of legal repercussions.
For the legal system and law enforcement, the ruling necessitates updating police procedures and potentially reviewing past convictions or ongoing prosecutions related to Section 226. The Penal Code must now be formally amended or repealed to reflect the court’s declaration. This aligns with recommendations made by the government’s own Taskforce on Mental Health. The ruling also sets a precedent for interpreting laws touching upon mental health issues through a human rights and public health lens.
For mental health advocates and service providers, the judgment validates their long-held position that attempted suicide is a health crisis, not a crime. It reinforces the need for comprehensive suicide prevention strategies focused on mental healthcare access, stigma reduction, and supportive environments, rather than punitive measures. Although the court did not explicitly order the provision of specific services or review of past cases in the final reliefs provided in the excerpt, the declaration itself grounds future demands for increased investment in mental healthcare and support systems.
More broadly, this decision signals a maturing constitutional jurisprudence in Kenya, willing to challenge inherited colonial laws that conflict with the transformative values of the 2010 Constitution, particularly concerning human rights, dignity, equality, and health. It underscores the court’s role as a guardian of fundamental rights, capable of intervening when the legislative process fails to address constitutional inconsistencies. The reliance on international human rights standards and comparative jurisprudence from countries like India and the US indicates a move towards aligning Kenyan law with global best practices in treating mental health issues.
While the decriminalization is a crucial step, the judgment implicitly calls for the government and relevant stakeholders to prioritize and implement robust mental health policies and services to provide the necessary support for those vulnerable to suicidal behaviour. The focus must now shift from punishment to prevention, treatment, and support.