Congratulations to the Kenya National Commission on Human Rights for a considerable victory in its campaign to see the crime of attempting suicide removed from Kenya’s Penal Code.
In 2022 the judge? accepted the arguments of the Commission that Section 226 of the Code saying, “Any person who attempts to kill himself is guilty of a misdemeanour”, is unconstitutional.
THE CASE
The judge based his decision on three articles of the Constitution.
First, Section 226 discriminates against persons with disability – namely some mental disturbance that leads to their trying to take their own lives.
This is an example of “indirect discrimination” – the intention in passing the law was to punish people for (and deter people from) trying to kill themselves.
Its effect is to punish disproportionately people with mental health issues.
Second, it violates Article 28 – because it does not respect the dignity of those people, affected but in fact “disgraces” them.
Third, instead of helping people with a mental health issue, it acts as a deterrent to seeking help and thus violates the rights to health – Article 43.
This has been a major concern of writing and campaigning about this offence.
Parties opposed to the petition against criminalising attempted suicide included the two houses of Parliament.
Their arguments tended towards the technical, rather than trying to answer the arguments of the petitioners.
These arguments could have been addressed to a court before 2010 – but are mostly inappropriate now. One argument featured a favourite statement from earlier cases: that all laws enacted by Parliament are presumed to be constitutional and anyone who argues a law is unconstitutional must convince the court.
This states the obvious. And the petitioners were precisely showing the unconstitutionality of Section 226 of the Penal Code – at least to the satisfaction of this judge.
Section 226 stipulates that any person attempting to take their own life is guilty of a misdemeanour and is subject to imprisonment of as long as two years, a fine, or both, with the minimum age of prosecution set at eight years.
A particularly weak argument was that it was for Parliament to make law.
They were side-stepping the fact that the main request in the case was for the court to declare existing law unconstitutional for breach of human rights – clearly possible under the Constitution (Article 23( 3 )(d)). Linked to this was their argument that the right approach would have been to petition Parliament to pass a law.
Not to do this, they said, was to fail to exhaust remedies before going to court.
But this “exhaust remedies” principle does not, some courts have said, apply to constitutional cases. Secondly, I suggest petitioning is not a “remedy”.
Thirdly, as the judge said, a parliamentary committee had already rejected a government Task Force proposal to repeal Section 266.
What would have been the point in petitioning? Similarly, it was pointless to argue that the petitioners had failed to show they were affected by this law - the Constitution makes it clear that a case can be brought in the public interest, rather than because it has harmed the petitioners (Article 22( 2 )).
When they did try to argue the central point, it was to claim that it was important because it deterred people from trying to kill themselves, including terrorists who might take cyanide poison so evidence died with them. This is ludicrous.
Quite apart from the general unlikelihood of any suicidal person being deterred by this law, would someone who is so determined to die that they take cyanide be deterred by fear of being taken to court if they fail?
It is deeply disappointing that such outdated and unsatisfactory, indeed feeble, arguments are put by lawyers for government bodies in important constitutional cases.
WHAT IS THE LAW NOW?
This was a case decided by a single judge. Normally such decisions are not binding on any court at the High Court level or above. On the other hand, as a party, the Director of Public Prosecutions is bound by the decision in this case, so no prosecutions for attempted suicide can now be brought.
The Commission did ask the judge to direct the offices of the Attorney General and the DPP to review convictions and ongoing prosecutions under Section 226 of the Penal Code and report to the Court within six months.
No doubt they had in mind particularly the Shakahola cases.
The judge did not make this order, but as a party to the case, the Office of the DPP may appeal against the decision.
If it does not, how can it continue to prosecute the victims of the Shakahola disaster for attempted suicide?
ONLY THE BEGINNING
The judge also did not declare that the ODPP and Ministry of Health should provide subsidised psychological support services for people who attempt suicide, as the petitioners had requested.
But this does underline something important: just decriminalising attempting suicide is unlikely to have much impact on the number of people committing suicide.
People who are contemplating suicide or have attempted it do need more help. Maybe abolition will make it a bit easier to offer help.
And medical staff and others will not need to feel they are concealing an offence if they do not tell authorities that they are treating someone who has tried.
I am not sure the ODPP needs to help – if there is no crime, the matter will not get to that office (unless the offence is of aiding someone else to commit suicide, which will still be an offence).
The police, however, may get involved. On the basis of the Task Force Report, the Ministry of Health did produce a Suicide Prevention Strategy for 2021-06.
Advocacy for decriminalisation was included. It rightly observed that, “it requires a coordinated multi-sectoral response of the health, education, labour and agriculture sectors among others.
It also needs the engagement of various partners such as county governments, the private sector, faithbased organisations, civil society and non-governmental organisations.”
Singapore abolished the offence in 2019, and in the following year figures for suicide apparently showed a 45 per cent drop. That is remarkable. How was it done? World Health Organization reports suggest the police played an important role.
“… from January to September 2020, the Singapore police force provided support to 1,800 people dealing with suicidal ideation or suicide attempts,…They have access to a dedicated 24-hour hotline staffed by trained nurses and counsellors. The crisis response team, which manages approximately eight to 10 calls daily on the police hotline, allows for swift suicide risk assessments, safety planning, and access to mental health care.”
Can we imagine our police having either the resources or the will to do this? And, despite the Health Ministry’s ‘Strategy’, how far can our floundering public health service help, especially at the county level, which would be most relevant? Perhaps change needs to come from other sources.
Religious leaders need to take this on board and convince their flocks that it is not a sin to help someone who has contemplated or attempted suicide to come out of this crisis.
There are communities in Kenya that humiliate those who attempt suicide - or succeed.
For example, some refuse to allow burial of the successful suicide until something like 3a.m., and without the usual statements of appreciation from family and friends.
The media can also help. The WHO has produced a guide for the media on reporting suicide issues and the sort of information that will assist people who are feeling suicidal and those who can help them.
We do have several Kenyan organisations that have experience in this and can help develop support programmes for victims of suicidal ideas and fears.
A final reflection - is it satisfactory that a single judge decides that our law is unconstitutional?
Surely this is a substantial question of constitutional law and ought to have a bench of at least three judges. Under the South African Constitution, a decision that law is unconstitutional is not final unless it goes to the Constitutional Court ( 9-11 judges!).
