The Attorney General has said decriminalisation of attempted suicide in Kenya will require a legislative process.
The AG in opposing a petition filed by Kenya National Commission on Human Rights, the Kenya Psychiatric Association and Charity Muturi says they do not have the power to legislate.
“The responsibility to decriminalise attempted suicide, does not lie with the AG as the same requires a legislative process,” says the AG.
The three are seeking to have the court declare a section of the Penal Code that outlaws attempted suicide as being unconstitutional.
Section 226 of the Penal Code, states that anyone who attempts to kill himself or herself is guilty of an offence. The punishment is two years in prison, a fine or both.
Cabinet Secretary for Health has echoed the sentiments shared by the AG. In an affidavit, Patrick Amoth the acting Director General for Health in the Ministry of Health says decriminalisation of suicide can only be done by the legislative arm of government.
“The duty to legislate can only be implemented by Parliament and any attempts by any other body to change the law would be manifestly wrong and a case of violation of the principle of separation of powers,” he says.
The CS is one of the listed interested parties in the case.
Amoth says MOH headed by the Cabinet Secretary appreciates the growing concern relating to the rise in suicide and attempted suicide cases in Kenya.
"It recognises that suicide is a complex, yet preventable public health problem resulting from the interaction of psychological, social, biological and environmental factors,” he said.
The task force report on mental health and wellbeing (2020) noted that for every adult who has died by suicide, more than 20 have attempted suicide pointing to a grave reality within Kenya’s borders.
The task force report further noted that there needs to be an amendment or repeal specified legal provisions that offend the constitution, and Acts of Parliament such as section 226 of the penal code.
According to the court documents, MOH held a meeting with members of the Parliamentary committee for Health at the National Assembly in November 2021, and made submissions to the mental health amendment bill 2020. One of the submissions was to repeal section 226 of the penal code which states that “Any person who attempts to kill himself is guilty of a misdemeanor”.
But that proposal was rejected. The parliamentary health committee stated “the committee rejected the amendment since under the provisions of standing order 133 (5) the amendments deal with a different subject and propose to unduly expand the subject of the bill.”
The three petitioners have argued that the drive for a person to die by suicide or attempt suicide is undiagnosed and untreated mental health conditions, as well as mental disability and not a criminal thought.
According to their court documents, survivors ought to be placed under mental care and not jail.
“The petitioners contend that persons who have suicidal thoughts or who attempt suicide require medical support or assistance and not criminalisation or punishment,” read their documents in part.