Decriminalizing Suicide in Kenya: A Step Towards Mental Health Justice

In January 2025, the High Court of Kenya delivered a landmark judgment in Kenya National Commission on Human Rights & 2 others v Attorney General; Director of Public Prosecutions & 3 others wherein it declared Section 226 of the Penal Code which criminalized suicide as unconstitutional. This decision represents a seismic shift in how Kenya approached mental health. The step is estimated to trickle down to mental health law and structures governing it. At the heart of the petition was Section 226 which is a relic of colonial-era law. Section 226 classifies attempted suicide as an offence punishable by imprisonment, a fine, or both. The ruling is a step further in dismantling a legal relic and additionally, it underscores the urgent need to treat suicide as a public health issue rather than a criminal offense.

This article dives deeper into the judgment, analyzing its implications for mental health law, and its impact on the broader movement to decolonize Kenya’s legal system. It also contrasts the High Court’s progressive stance with the Supreme Court’s earlier reluctance to embrace similar principles, therefore, highlighting the shift in Kenya’s legal transformation and thinking.

Colonial-Era Criminalization and the Need for Reform

Few colonial-era law remnants have lasted as long or caused as much harm as criminalizing attempted suicide. Based on archaic British legal traditions, Section 226 of the Penal Code of Kenya treated attempted suicide as a crime against individuals, not as those in need of care. It disregarded the fact that suicidal thoughts are more often a reflection of deeper psychological issues. Rather than providing care, the law also further stigmatized vulnerable people, deterring them from coming forward and deepening the nation's mental health crisis.

The High Court decision acknowledges that such a legal regime is not only ineffective but also unconstitutional. Justice L. N. Mugambi, in the judgment, strongly dismissed the contention that criminalization prevents suicide, stating:

“[Certain interested parties] justified the existence and retention of Section 226 of the Penal Code insisting that it [was] 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 of the very evidence that suicide ideation is a mental health issue, hence it is not a ‘willed act’ by a 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.”

This reasoning is rooted in Kenya’s 2010 Constitution, which guarantees equality, dignity, and the highest attainable standard of health. The judgment reflects an evolving legal and societal understanding that mental illness should be addressed with care, not punishment.

The High Court’s Progressive Jurisprudence

The constitutional petition leading to this ruling was filed in 2022 by the Kenya National Commission on Human Rights, Charity Muturi (now deceased), and the Kenya Psychiatric Association. They argued that criminalizing attempted suicide violates multiple constitutional rights. To be specific, it violated Article 27, Article 28, and Article 43. The aforementioned rights focus on the right to equality and non-discrimination, the right to human dignity, and the right to the highest attainable standard of health respectively.

The High Court concurred with the petitioners, acknowledging Section 226 promoted stigma towards persons with mental illness and discouraged them from receiving medical treatment. The rationale given by the court is consistent with international human rights tools like the Universal Declaration of Human Rights (UDHR) and the Convention on the Rights of Persons with Disabilities (CRPD), which also focus on dignity, non-discrimination, and the right to health.

Kenya's own Mental Health (Amendment) Act, 2022 was also pivotal in the ruling. The Act identifies suicide ideation as a mental health condition and not as an offence. The High Court's decision effectively brings Kenya's penal code in tandem with its changing legislative and policy obligations.

Additionally, the judgment takes a cue from comparative jurisprudence, specifically the Indian Supreme Court's verdict in P. Rathinam v. Union of India, which decriminalized attempted suicide in India. Such transnational legal exchange highlights the emerging universalization that suicide prevention needs humane, health-oriented responses and not punitive ones.

Broader Implications: Decolonizing Kenya’s Mental Health Laws

The High Court's decision is more than a win for mental health rights—it is a step towards a broader effort to break the colonial heritage in Kenya's jurisprudence. 

This ruling challenges policymakers to frame a comprehensive policy towards mental health focusing on prevention, treatment, and rehabilitation and not punishment. Major policy proposals that come out of this verdict include an increase in expenditure on mental health care: The government has to provide increased resources for mental health interventions in the community as well as crisis management systems. It also advocated for publicity campaigns to de-stigmatize mental illness, and there has to be awareness building in the community on suicide prevention. It mentioned that the Parliament ought to move towards the repeal of other colonial laws that do not conform to Kenya's constitutional and international obligations. This needs to be accompanied with judicial training wherein judges and legal professionals need to be trained in human rights-based approaches to mental health law to provide uniform jurisprudence in courts.

Despite this progressive ruling, Kenya’s Supreme Court had previously exhibited reluctance to embrace a similarly transformative approach to mental health in the case of MMG v Tribunal Appointed to Investigate the Conduct of Hon. Lady Justice MMG. In that event, the Supreme Court invoked colonial-era laws—namely the UK's Mental Health Act 1983 and Mental Capacity Act 2005—to determine mental incapacity. Rather than evolving an indigenous, rights-based jurisprudence, the Court reinforced outdated assumptions that mental illness and incompetence are inherently connected.

This strategy is a lost chance to create judicial consistency in mental health jurisprudence. Although the High Court ruling is a step towards decolonization, the Supreme Court's previous position indicates a continued battle within Kenya's judiciary to completely adopt the constitutional promise of dignity and equality.

Conclusion

The High Court judgment in Petition E045 of 2022 is a significant milestone in the legal and social response to mental health in Kenya. Through invalidating Section 226 of the Penal Code, the court reasserts Kenya's allegiance to dignity, equality, and the right to health. But the Supreme Court's previous reluctance to embrace comparable analysis underscores the call for enhanced judicial consistency.

As Kenya develops legally, the decriminalization of suicide attempts is a matter of both legality and ethics. Eliminating retaliatory colonial regulations is vital for creating a community that treats mental health as an inalienable right. There is no denial that the ruling was a huge improvement, however, it falls short of being tangible. The effect of the ruling has still not permeated in policymaking and the issue of mental health needs to become care-focused from this point on. Lastly, the remains of vindictive colonial legislation need to be put out to light the fires of a new and more accommodating decolonized era.