In a groundbreaking judgment, the High Court of Kenya declared Section 226 of the Penal Code, which criminalised attempted suicide, as unconstitutional. This decision represents a significant step in recognising mental health challenges as a public health issue rather than a criminal offence. This blog explores the legal analysis of the judgement, impacts on mental health, and consistency with the constitution and international law.
The court conducted a thorough analysis, guided by the principle of purposive interpretation. It concluded that the purpose and effect of Section 226 was inconsistent with the Constitution. The provision failed to address the root causes of suicide and instead perpetuated stigma, thereby violating fundamental rights. In particular, the provision violated the right to equality and non-discrimination under Article 27, as it disproportionately targeted individuals with mental health conditions, perpetuating stigma and discrimination. It also infringed on the right to human dignity under Article 28 by criminalising individuals experiencing suicidal ideation, treating them as offenders rather than individuals in need of care and support. Further, the provision impeded the right to health under Article 43, as the fear of criminal sanctions discouraged individuals from seeking mental health assistance. Finally, the court found that Section 226 contravened the rights of persons with disabilities under Article 54, recognizing that the Mental Health (Amendment) Act 2022 classifies suicidal ideation as a mental illness, thereby warranting constitutional protection. The judgment emphasised that criminalising suicide fails to address its root causes and exacerbates the challenges faced by affected individuals.
The judgment reiterated Kenya’s commitment to its obligations under international human rights treaties, aligning with global standards. The Court noted that its decision reflects the principles of the Universal Declaration of Human Rights (UDHR), particularly Article 7, which ensures equality before the law without discrimination. Additionally, it upholds the Convention on the Rights of Persons with Disabilities (CRPD) specifically Article 4, which mandates the modification of discriminatory laws. The judgment also aligns with the International Covenant on Economic, Social and Cultural Rights (ICESCR), and particularly Article 12, that recognises the right to the highest attainable standard of mental and physical health. Furthermore, it echoes the African Charter on Human and Peoples’ Rights where Article 16 obligates states to protect the health of their citizens.
The judgement is poised to serve as validation of the transition from punitive to reformative measures to address mental illnesses. Along with the declaration of unconstitutionality of the provision, it gave several other directions to ensure this. The court highlighted the need for comprehensive mental health services, as outlined in the Suicide Prevention Strategy (2021–2026) and the Mental Health Policy (2015–2030). The Court emphasised that these two policies provide vital frameworks for improving mental health care but require full implementation. These policies focus on reducing suicide rates, raising awareness, and expanding equitable access to quality mental health services, which the Court stressed as essential for addressing Kenya’s mental health challenges.
The Court further mandated the state to prioritise mental health care by ensuring accessible and affordable services for individuals with suicidal ideation, while also requiring a review of past convictions under Section 226 to deliver justice to those affected. However, the judgment stops short of explicitly detailing what such a review would entail. Questions arise as to whether this process includes reversing prior convictions, granting early release to those incarcerated under the repealed provision, or offering expungement of criminal records.
The court’s adoption of a human rights-based approach to mental health marks a historic step in recognising mental health struggles as a public health issue. Activists and NGOs have also hailed it as a significant milestone which will help in reducing stigma and encouraging open discussions on mental health. However, much of its impact hinges on the government’s next steps, which remain to be seen.
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