Prof Atwoli: Kenya’s suicide data has been wrong all along

Prof Lukoye Atwoli, the deputy director of the Aga Khan University’s Brain and Mind Institute (BMI).

Leading psychiatrist PROF LUKOYE ATWOLI has led a decade-long campaign to decriminalise attempted suicide in Kenya. The efforts paid off last month when the High Court declared section 226 of the Penal Code unconstitutional. Prof Atwoli, the deputy director of the Aga Khan University’s Brain and Mind Institute (BMI), also chairs the board of the Mathari National Teaching and Referral Hospital. He sat down for a conversation with Star’s JOHN MUCHANGI.

QUESTION: Last month High Court Judge Lawrence Mugambi ruled that Section 226 of the Penal Code is unconstitutional, effectively decriminalising attempted suicide. You have been trying to get such a ruling for more than ten years. What made this attempt successful now?

 ANSWER: So for the past ten years or so, we've been agitating for repeal of Section 226 of the Penal Code, which makes attempting suicide a criminal offence, punishable by a jail term of up to two years, or a fine.

It’s ridiculous to criminalise a sign of mental illness. We argued that it is the same as saying that if your blood pressure goes beyond a certain level, you are guilty of an offence, or if your blood sugar goes beyond a certain level, you are guilty of an offence. We made those arguments forcefully in the public spaces, but also we went the judiciary way.

A couple of years ago, we agreed to have the Kenya National Commission on Human Rights, the Kenya Psychiatric Association, and one petitioner –a person with lived experience – go to the High Court to seek the court's intervention to declare Section 223 of the Penal Code unconstitutional. And after several months and years of litigation, the court ruled in agreement with our argument that Section 226 is unconstitutional on the grounds that it violates three articles of our constitution. That is Article 27, which talks about non-discrimination.

 This section of the Penal Code was discriminating against people on grounds of health, because people with mental ill health who had suicidal ideation were being treated differently from people with hypertension who had a crisis, from people who had a road traffic accident. None of them would be taken before a judge or into a police station. But if you have a crisis and were suicidal, then you would be taken into the criminal justice system instead of into the health care system.

 And then Article 28 of the Constitution states clearly, that all of us have inherent dignity and have the right to have that dignity respected. And again, sending a person with suicidal ideation into the criminal justice system, treating them like criminals, was really undermining their dignity on the grounds of their illness. 

And then finally, the judge ruled that it also violated Article 43 of our Constitution. Article 43 says that all of us have a right to health care.

 By criminalising symptoms of mental illness, you are depriving these people of their right to access health. So that's a landmark ruling in this country.

What should be the next steps now. Are there policies that we need now to protect people with mental ill health?

The battle is not yet won. We have a petition pending before Parliament to erase this section 226 from the penal code now that it has been declared unconstitutional. This petition predates the ruling.

 I filed this petition in August last year, and it was progressed through the steps. It was sent to the Public Petitions Committee of the National Assembly. I made a presentation before that committee, and we're waiting for their report to be tabled on the floor of the National Assembly.

 My expectation is that the product of that discussion in the National Assembly will be a bill to repeal section 226 of the penal code and remove this obnoxious, colonial, ancient piece of legislation from our statute books.

 The second thing that needs to be done is to start really investing in mental health, because we all agree that suicides are increasing, and other mental health problems are also increasing. Depression, anxiety, substance use problems are increasing, and the final common pathway for many of these problems is suicide.

 So we have to invest in mental health services, meaning we have to train more mental health workers, deploy them across the country, and give them the resources and facilities where they can provide services to our people 

The judiciary has discharged its responsibility. The legislature has to discharge its responsibility. The executive, both at the national level and the county level, have to discharge their responsibilities now.

 They need to start investing in health facilities that will deal with the huge burden of mental ill health and suicide.

The section 226 is already declared unconstitutional, why is it still important for that law to be amended? 

Because people who attempt suicide may still be arrested, kept in their cells, arraigned in court. It is only at the point of being arraigned that a judicial officer will say, but why did you bring this person to me? The law that you're citing or using has been declared unconstitutional.

 So by removing it from the penal code, it eliminates the chance that a police officer on the street – either rogue or ignorant – will find a person who has attempted suicide and instead of channeling them to a healthcare facility, will channel them to the criminal justice system.

And what is the actual rate of attempted suicide and completion in Kenya?

 We don't we know. Because if I went out there to do research and I asked somebody, have you ever thought of killing yourself? If that person knows this is against the law, they would never tell me. Or they will give me misleading information. So all the suicide statistics that we have are erroneous. Including the recording of suicide deaths at our mortuaries and at our hospitals. They are misrepresented. Somebody will say cardiopulmonary arrest or asphyxiation. They will not mention suicide because it's stigmatised and it's against the law. 

They will not say suicide attempt because insurance refuses to pay and says this is against the law. Because there is fear that if this person survives, they will be prosecuted. There is stigma associated with it.

 And so the statistics we have on suicide are really at the tip of the iceberg, only where it was completely unavoidable for us to conclude that this person died by suicide. But now, with increasing conversations around mental health and around suicide, we are expecting that when we go out to do research now, under the current legislative regime, we should be able to get more credible data on suicide ideation, suicide attempts, and deaths by suicide.

You mention health insurance does not cover hospitalisation or treatment after attempted suicide. Please explain further. Are there other barriers that people who sought care after suicide attempt faced?

  The first barrier is in their own minds, and in the minds of those who are supposed to give them care: that this is an illegal act.

 That was the first barrier, which I'm glad that we are now chipping away and eliminating. The barrier was that they were treated differently. In fact, insurance would call it self-inflicted injury and would not pay for it. So they didn't have access to full insurance. And if they had, it was after a convoluted process of claims, where at some point we had to send the law to the insurance companies and say, this is a mental illness and you are required to provide cover for mental illness. So, that was a huge barrier.

 The third one was the stigma. After I'm treated and I go back home, how am I going to be treated by my family? How are the neighbours going to look at our family? And if somebody died by suicide, the stigma was multiplied one million times, in the sense that the person who died by suicide would be treated very differently from a person who died from other causes.

Their family and survivors, those who remained behind, would be treated pathetically by society. And people would say nasty things about them. And people would look at them in a certain way because somebody in their family died by suicide.

 There are many barriers that we have erected to punish people who have severe psychological distress or mental illness and end up attempting or contemplating suicide.

Are there lessons we can learn from countries that have abolished this law?

 The first lesson is that no matter what you do as public policy, you must put the people's welfare at the centre of it. So, if you're going to write a law that punishes a person for attempting suicide, you have to think about what is the impact of this. 

So, being humane in public policy, in legislation and even in judicial decisions. I keep asking, what is the value of a human life in this part of the world? And countries that think deeply about the value of the lives of their citizens will never criminalise a mental illness.