Authored By: Muthini Abigail Ndanu
Kabarak University
Case Title: KENYA NATIONAL COMMISSION ON HUMAN RIGHTS& 2 OTHERS V ATTORNEY GENERAL, DIRECTOR OF PUBLIC PROSECUTION& 3 OTHERS.
Court: REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI(MILIMANI LAW COURTS)
Case Number: CONSTITUTIONAL PETITION E045 OF 2022
Nature of Petition: CONSTITUTIONAL AND HUMAN RIGHTS
Judge: JUSTICE L N MUGAMBI
Dated: 9TH JANUARY 2025
Neutral Citation: [2025] KEHC 6(KLR)
PARTIES INVOLVED.
Petitioners
- Kenya National Commission on Human rights
- Charity Muturi
- The Kenya Psychiatric Association
Respondent
- The Honourable Attorney General
Interested Parties
- The Director of Public Prosecutions
- The Cabinet Secretary for Health
- National Council for Persons with Disabilities
- Coalition Action for Preventive Mental Health Kenya
Amicus Curiae
- The Law Society of Kenya
BRIEF FACTS OF THE CASE.
The petitioners argued that section 226 as read with section36 of the Penal Code that criminizes attempted suicide to be unconstitutional. They argued that mental illness of the victim was manifested through attempted suicide hence not a crime since there was no motive in their actions. This was therefore a violation of a persons right to dignity, equality and freedom from discrimination on basis of mental illness for failing to offer the victims medical care or rehabilitation. The respondents argued that the section was in order to prevent self-harm which would be an escape route for criminals and that they had not violated the rights in any way. They also said that there were attempts to amend the penal code. They also alleged that the court did not have jurisdiction to address the issue since it was a matter of legislation.
LEGAL ISSUES RAISED.
- If the criminazation of attempted suicide as stipulated in section 226 as read with section 36 of the Penal Code was unconstitutional for violation of rights of a person with mental illness( right to dignity, equality and freedom from discrimination).
- If the crime of attempted suicide was unconstitutional for denying survivors care, treatment and rehabilitation as stigmatization may hinder victims from getting help.
- If a person who attempted suicide could have been suffering from mental illness hence lack of motive to commit the crime or is the office of prosecutor abusing their power.
- If the court had the jurisdiction to hear a legislation matter.
PETITIONERS ARGUMENTS.
The petitioners argued that the cause of attempted murder globally and in Kenya is as a result of undiagnosed and untreated mental health problem which is a disability hence criminalizing of the attempted suicide amounts to a failure for the government through representation by the Attorney General who in accordance to the case of Kenya Airports Authority v Mitu bell Welfare Society & 2 others[2016]eKLR to uphold the constitutional principles and values which protect persons with disabilities from punishment contrary to section 2 of the Persons with Disabilities Act and Article 27 of the constitution.
The 2nd petitioner who is a founder of Tunawiri,CBO which aims at helping victims with suicidal ideas through psychological resilience building, economic support for medication and counseling attests that she was a victim of suicidal thoughts and was later diagnosed with bipolar disorder and through medication, therapy and counselling at Mathari National Hospital she was able to cope with her mental health condition. . The petitioner therefore submitted that in accordance to article 159(2) and the case of Francis Karioko Muruatete & another v Republic [2017]eKLR the court had to exercise its authority in a way that protects the rights in the constitution.
The 1st petitioner who is entitled to the protection of Human Rights and fundamental freedoms argued that the constitution is tasked to protect the rights of a persons with disabilities. The criminalization of this mental condition violates the right to highest attainable health and access to health facilities, right to equality and freedom from discrimination, right to human dignity and protection of rights of persons with disability. He also stated that Kenya has been ranked 6th African country with highest level of depression and therefore the enactment of this section increases stigma as victims are viewed as criminals hence lack of health care and family support.
The 3rd petitioner who is a consultant psychiatrist argued that scientific studies indicate suicidal behavior is caused by mental illness like depression and anxiety. He argued that the declaration of section 226 read with section 36 of Penal Code unconstitutional will increase access to mental health care, reduce discrimination and therefore decrease death by suicide.
Therefore, the petitioners seeks that the court declares section 226 of the Penal code unconstitutional just as it has the jurisdiction as stated in the case of Owners Motor Vessel “lillian S” v Caltex Oil Kenya Limited[1989]KLR, repugnant to justice and inconsistent with articles 27,54(1),43(1)(a),28,53(1)(c),53(2) of the 2010 Constitution of Kenya. They also prayed that the court declares the offices of the 1st and 2nd interested parties to offer free or affordable counselling and psychological support services for attempted suicide victims. The petitioners also prays that the court orders the respondent and the 1st and 2nd interested parties to review any completed and ongoing prosecutions of the crime of attempted suicide and offer health care respectively.
RESPONDENTS ARGUMENTS
They argued that the role of legislating can only be done by the parliament not by the high court since it was not a judicial matter and neither are they tasked in prosecution of the victims of attempted suicide. The respondent also argued that judicial intervention should be limited to clear acts that are a breach of the law or where a wrong decision has been entered. In conclusion, the respondent claims that he has not in any way violated the rights raised by the petitioners.
INTERESTED PARTIES ARGUMENTS
The ministry of health , through an affidavit by the Chief Technical advisor stated that there was acknowledgment of suicide as the second leading cause of death and argued that a taskforce on Mental Health in Kenya which identified the need to amend section 226 of the Penal Code conducted a meeting with parliament committee on the matter but the proposal was rejected . He also argued that the ministry of Health had developed a Suicide Prevention Strategy which has been working on decriminalization of attempted suicide and reduction of suicidal cases.
The mental health ecosystem accelerator organization stated that although suicide is not curable, the suicidal idea or mentality can be prevented through awareness and rehabilitation instead applying retributive justice which aims at punishing with reference to Wakesho v Republic[2021]KECA 223 KLR. Therefore, criminalization amounts to violation of rights under article 27,43,53 and 54 of the constitution.
The Law Society of Kenya, an amicus curiae in this matter submitted that the criminalization of attempted murder violates the fundamental rights provided in the constitution by the state who is also entitled to protecting the rights and increases trauma to the victims for been seen and treated as criminals.
COURT ANALYSIS AND JUDGEMENT.
The court affirmed that it had the jurisdiction to check in to policies that violates constitutional principles by examining the provisions of the statute and the objective as well as the legislative history of the statute as stated in the case of Council of County Governors v Attorney General & another[2017]eKLR.
With reference to the Mental Health Act No 27 of 2022 section 2 which defines a person with mental illness as a person who has suicidal ideation or behavior, the court ruled that section 226 of the Penal Code does not acknowledge the definition of mental illness which qualifies attempted murder as suicidal action. The criminalization of attempted suicide therefore violates the person’s right to dignity, equality and freedom from discrimination as stipulated in the constitution under various sections.
In consideration of the Supreme Court of India holding in the case P Rathinam v Union of India on 26th April 1994 1994 AIR 1844,1994 SCC(3) 394 which stated that attempted suicide is a call for help not a call for punishment , the court ruled out that attempted suicide is a mental condition hence there is no men’s rea or motive driving them to do what they did.
The court ruled that the criminalization of attempted suicide denies the victim health care and access to psychiatric help and may lead to worsening of the situation hence there is risk of the victim trying to take their lives again due to stigma and lack of help. The court quoted the case of Maruti Shripati Dubal vs State of Maharashtra 1987(1)BBOMCR 499,(1986)88BOMLR589 at the High Court of Bombay to state that the victims who attempt suicide due to mental disorder should be taken to psychiatric hospital since deterrence cannot prevent the person from attempting suicide.
The honorable judge Mugambi therefore gave the following reliefs with consideration to the findings: a declaration that section 226 of the Penal Code is unconstitutional for being inconsistent with article 27,28 and 43 of the Constitution and each party to bear their own cost since it was a matter of public interest.
CONCLUSION.
This case is a landmark case that has greatly impacted the approach in which attempted suicide victims are vied in the community and hence helped in creating awareness on what actions the victims can undertake. The decriminalization therefore opens path for rehabilitation and gives the victims a chance for change. It is therefore the role of the parliament to amend the Penal Code to align with the Constitution and the Mental Health Policy.
