The High Court of Kenya on Thursday delivered a landmark judgment declaring the criminalization of suicide unconstitutional.

In its decision, the court agreed with the petitioners that the criminalization of attempted suicide is unacceptable from a constitutional view and that such individuals need care and assistance rather than punishment. Justice LN Mugambi, delivering the judgment of the court, stated:

[Certain interested parties] justified the existence and retention of Section 226 of the Penal Code insisting that it in consonance with protecting the right to life by deterring and preventing self-destructive behaviour. In my view, such an argument flies in the face in view of the very evidence that suicide ideation is mental health issue hence it is not a ‘willed act’ by made by human being of sound mind. In fact, the Ministry of Health has classified it as a disability … It is my finding that applying the purpose and effect principle of constitutional interpretation, Section 226 of the Penal Code offends Article 27 of the Constitution by criminalising a mental health issue thereby endorsing discrimination on the basis of health which is unconstitutional.

The constitutional petition was filed before the court in 2022 by the Kenya National Commission on Human Rights, Charity Muturi (now deceased), and the Kenya Psychiatric Association.

The petition challenged Section 226 of Kenya’s Penal Code, which classified attempting suicide as a misdemeanor punishable by two years of imprisonment, a fine, or both, according to Section 36 of the code. The petitioners contended that the criminalization of attempted suicide is a failure of the Kenyan government to uphold the constitutional mandate, which prohibits discrimination. They pointed out that attempted suicide is underwritten by untreated mental health conditions, and that punishing it amounts to discrimination against the affected individuals.

The petitioners argued that Section 226 only further stigmatized those already suffering from mental health conditions. Specifically, they claimed the provision violated Articles 43, 27, 28, and 54 of the Kenyan Constitution. These articles provide the right to the highest attainable standard of health, the right to equality and freedom from discrimination based on health status and disability, the right to human dignity, and the rights of persons with disabilities, respectively. The Coalition Action for Preventive Mental Health Kenya, an interested party in the case, pointed out that the law is a carry-over from Kenya’s colonial era, and that it must be seen in a new and changing context that prioritizes health care as a constitutional matter.

In its decision, the court drew not only from its own constitutional jurisprudence but also from international conventions, notably the Universal Declaration of Human Rights and the Convention on the Rights of Persons with Disabilities. The court also drew from international jurisprudence, such as P. Rathinam Vs. Union of India, which inter alia decriminalized attempted suicide in India.