Lawmakers approve suicide attempt decriminalization bill

Members of Parliament have approved a proposed amendment to the Penal Code that seeks to decriminalize attempted suicide. The focus would shift from punishment to providing mental health care for individuals who attempt suicide.

The Penal Code (Amendment) Bill, 2024, was approved by the National Assembly’s Justice and Legal Affairs Committee and aims to repeal Section 226 of the existing law, which currently prescribes a jail term of up to two years, a fine, or both for attempted suicide. If enacted, the Bill would replace criminal sanctions with a framework that treats suicide as a mental health issue.

Implications of Existing Law

Section 226 of the Penal Code, as read with section 36, provides that any person who attempts to kill themselves is guilty of a misdemeanour, punishable with imprisonment for a term exceeding two years or a fine or both. The Justice and Legal Affairs Committee chairperson, Gitonga Murugara, outlined these implications and the proposed changes in a report tabled before the House. The committee received four public submissions supporting the amendment, from Anjarwalla and Khanna LLP (ALN), the Law Society of Kenya (LSK), the National Gender and Equality Commission (NGEC), and Outreach for Action Kenya.

Additional Recommendations

Several organizations offered additional recommendations alongside their support for the Bill. ALN, LSK, and Outreach for Action Kenya highlighted that Section 226 of the Penal Code had already been declared unconstitutional by the High Court in a case involving the Kenya National Commission on Human Rights. They argued that the provision violates Articles 27, 28, and 43 of the Constitution of Kenya.

These petitioners also pointed to the Mental Health Act, which defines a ‘person with mental illness’ to include an individual diagnosed with suicidal ideation or behaviour. They asserted that criminalizing attempted suicide is unconstitutional, as it punishes suffering rather than offering solutions and violates human dignity.

Medical Care

The committee’s report notes that criminalizing attempted suicide exposes survivors and individuals with suicidal tendencies to arrest and prosecution instead of medical care. This approach undermines the right to health by pushing people into the criminal justice system rather than facilitating access to treatment. LSK and Outreach for Action Kenya argued that individuals attempting suicide often experience severe psychological distress and that criminal punishment fails to address these underlying causes.

Section 226 Unconstitutional

The National Gender and Equality Commission (NGEC) fully supported the Bill, stating that the High Court had already declared Section 226 of the Penal Code unconstitutional. Beyond suicide, the NGEC urged Parliament to pursue broader reforms on substance use and addiction, including the decriminalization of the use of narcotic drugs and psychotropic substances. They argued that existing penalties for substance use are excessive and that individuals struggling with addiction need medical intervention, not incarceration.

Amendments to Existing Laws

The NGEC also proposed fast-tracking the implementation of the 2020 Report by the Task Force on Mental Health, which recommended amendments to existing laws to decriminalize suicide and substance use. They further suggested harmonizing laws governing substance use, including several acts related to alcohol, narcotics, and tobacco.

Amendment Meets Human Rights Standards

The Justice and Legal Affairs Committee concluded that the proposed amendment meets constitutional and human rights standards. The committee observed that the Bill is progressive, humane, and constitutionally aligned. However, the report cautioned that decriminalization must be accompanied by sustained investment in mental health services to achieve meaningful outcomes. The Mental Health Act obligates the national and county governments to develop the necessary infrastructure for the care, rehabilitation, and provision of health services to persons with mental health illnesses, including those with suicidal ideation or behaviours.