Kenya's legal system has its roots in the English Common Law system due to its colonial history under British rule. It’s a system characterised by statutes, case law, and legal principles inherited from Britain.

Attempting suicide is a crime in Kenya. “Any person who attempts to kill himself is guilty of a misdemeanour,” which comes with a penalty of “...imprisonment for a term not exceeding two years or with a fine, or with both.”

These punitive measures perpetuate stigma and hinder the provision of appropriate mental health support to individuals in crisis. The colonial-era laws do not align with modern mental health care principles and emphasise punishment over compassion and assistance.

However, Kenya is a diverse country with various ethnic communities. While Common Law is the primary legal system, Traditional Law and Islamic Law elements coexist in the country's legal landscape, depending on the context and the parties involved. Islamic Law (Sharia), for instance, applies to matters of personal status and family law for Muslims in Kenya, particularly regarding marriage and inheritance.

Section 226 of the Kenyan Penal Code states: “Any person who attempts to kill himself is guilty of a misdemeanour.”

A misdemeanour is defined at section 4 of the Code as “any offence which is not a felony”, with section 36 stating “When in this Code no punishment is specially provided for any misdemeanour, it shall be punishable with imprisonment for a term not exceeding two years or with a fine, or with both.”

Given no punishment is listed in section 226 of the Penal Code, pursuant to section 36 of the Code, individuals that attempt suicide are liable to prison sentences of up to two years as well as fines.

There is some discretion available to Judges. Section 35(1) of the Penal Code also allows a court to: “having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order under the Probation of Offenders Act (Cap. 64) is not appropriate, the court may make an order discharging him absolutely, or, if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding twelve months from the date of the order, as may be specified therein.”

This power is often exercised in the treatment of individuals that attempt suicide. The Criminal Procedure Code also provides a procedure for the dealing of individuals suffering from “lunacy or other incapacity”.

The criminalisation of suicide exists uncomfortably alongside Article 43(1)(a) of the Constitution of Kenya (2010), which grants every Kenyan “the right to the highest attainable standard of healthcare”

A suicide attempt can lead to individuals being fingerprinted and listed in police databases, preventing the issuance of Certificates of Good Conduct by the police - a document which may be required when seeking employment.

To add frustration to distress, Section 37 of the Penal Code states that a person convicted of another offense while serving a sentence may have their subsequent sentence executed after the first one expires, potentially extending the prison time of a distressed individual who attempts suicide in prison. “Where a person after conviction for an offence is convicted of another offence, either before a sentence is passed upon him under the first conviction or before the expiration of that sentence … the subsequent conviction shall be executed after the expiration of the former sentence”

In a 2017 news report, a man was charged with attempted suicide inside Nakuru Prison after receiving a 2-year sentence for the same offense pleading “with the court to instead allow him to be taken to hospital because his health had deteriorated.”

Kenya is a signatory to several international treaties and covenants, particularly The United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR) - the "International Bill of Human Rights". It has agreed to "recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health","assure to all medical service and medical attention in the event of sickness," and, "take adequate measures ... to prevent suicides."

Kenya is also a member of the World Health Organisation, which states in its preamble that “Health is a state of complete physical, mental and social well-being” and that “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being.” Preambles provide context to the agreement.

In 2021 the Kenyan Ministry of Health released their 2021-2026 [Suicide Prevention Strategy.](https://www.health.go.ke/wp- content/uploads/2022/02/SUICIDE-PREVENTION-STRATEGY-2021-2026.pdf) As per the advice from the World Health Organisation, this is one of its key activities in a movement towards decriminalising suicide. The importance of decriminalisation has been acknowledged by the Kenyan Ministry of Health who are advocating “for decriminalization of suicide by Repealing Section 226 of the Penal Code”.

Since the pandemic, there has been increasing concern about the rising number of suicides in Kenya. It is difficult to ignore the broad cross-section of society being affected, including politicians and religious leaders. Perhaps not surprisingly, given the trauma experienced in their daily working lives, even the police force is experiencing an increase in suicides - 57 in 2021, nearly ten times the national average - and with it, an increasing disillusionment with the impact of criminalization.

Quote:

"For officers, seeking help is seen as a sign of weakness. They're the ones people turn to for help so how can they now appear helpless?" Police Psychologist Rechael Mbugwa,

A task force was established in 2022 to address this issue by offering counselling and seeking to promote a culture of emotional openness.

Within the Judiciary there is an abundance of published judgments and media reports covering section 226 of the Penal Code. The majority cover murder-suicide scenarios, or attempts at suicide after the commission of serious criminal offences. This is because mainly intermediate and top-level courts write published judgments, and these courts only hear serious criminal offences such as murder.

In the case of Republic v SWN, a mother charged with both murder and attempted suicide was sympathetically sentenced by Judge Joel Ngugi. He expressed disbelief in charging SWN with attempted suicide

"Here is a young woman in need of treatment, care, and protection, certainly not a deranged criminal in need of retribution and confinement"

• Judge Joel Ngugi

In May 2023, the discovery of a mass suicide in Kenya led to government reports and calls for reform. Over 300 bodies were found, while hundreds remain missing. Survivors have been charged with attempted suicide. The Kenya National Commission on Human Rights criticised this move and called for psychiatric and mental health support instead.

Kenya's President, William Ruto, appointed a commission to investigate the killings. However, the commission of inquiry has faced legal challenges from opposition leader Raila Odinga.

Rights groups demand further actions, including the need for mental help for vulnerable individuals. Amnesty International is calling on Kenya to respect survivors' rights.

This tragedy has led the media to a more critical review of suicide legislation in Kenya, with compelling lived-experience stories to support its removal.

This tragedy has brought together a wide range of groups and individuals (Healthcare workers, legal professionals, Mental Health and Human Rights advocates) who are motivated by community concerns to make change.

In 2022 a petition challenging the constitutionality of section 226 of the Penal Code was brought before the High Court of Kenya at Nairobi. The petition, filed by the Kenya National Commission on Human Rights, Charity Muturi and The [Kenya Psychiatric association, argues](https://pettyoffences.org/submission-made-to- decriminalise-suicide-in-kenya/#page/1) section 226 is “in direct contravention of the basic human rights and fundamental freedoms enshrined in the Constitution of Kenya”.

A number of parties have also filed submissions in the case as amicus curiae.

No evidence of the petition reaching the hearing stage exists in the Kenyan media. Furthermore, considering some human rights matters from 2020 are still at the mention stage at the Nairobi High Court, it may take more time for the matter to reach the hearing stage.

A National Suicide Prevention Strategy (2021-2026) was published by the Ministry of Health in February 2022

The guide has been based on the World Health Organization handbook, "National Suicide Prevention Strategies, Progress, Examples, and Indicators," which is a good resource for insights into effective suicide prevention practices worldwide.

Currently there are four crisis lines in Kenya.

Crisis Lines: **https://findahelpline.com/ke/topics/suicidal-thoughts