Life lost, battle won: Court strikes down law that punished suicide survivors

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Life lost, battle won: Court strikes down law that punished suicide survivors
Court gavel. (Courtesy)

She died branded a criminal, condemned by the law for ending her own life, but a court has now declared her innocent.

It is, however, too late for Charity Muturi, who passed away last year. She fought for the decriminalisation of suicide attempts, and although her life was cut short, her battle has finally borne fruit posthumously.

Charity died by suicide on November 6, 2024, as the journey she started in court, seeking the decriminalisation of attempted suicide, continued through the corridors of justice.

She was a petitioner alongside the Kenya National Commission on Human Rights (KNCHR) and the Kenya Psychiatric Association (KPA) in seeking a declaration that Section 226 of the Penal Code Cap 63 of the Laws of Kenya, which criminalised attempted suicide, was wholly unconstitutional.

Charity dedicated her life to advocating for a change in the law to allow people struggling with suicidal thoughts to seek medical help rather than being processed through the criminal justice system – and she won, though posthumously.

However, while the court may have pronounced its judgement, Charity still faces another struggle from beyond the grave. For many, particularly within religious circles, suicide remains a sin, a final act leading to eternal damnation.

Charity’s victory may be legal, but the social battle continues. The fight to change hearts and minds persists. The mental health champion’s own battle with suicidal thoughts began at the age of 14, and her diagnosis of bipolar disorder in 2015 only intensified her fight.

Her story lays bare the deep stigma and misunderstanding surrounding mental health, where suicide has long been viewed through a moralistic, rather than a medical, lens.

Exactly two months after her death, Justice Lawrence Mugambi on January 9, 2024 delivered a judgement decriminalising attempted suicide in Kenya.

The judge declared Section 226 of the Penal Code that criminalised attempted suicide unconstitutional. Section 226 of the Penal Code, Cap 63 of the Laws of Kenya, states that any person who attempts suicide is guilty of a misdemeanour and that the punishment for the offence is imprisonment for up to two years, a fine, or both, with the minimum prosecution age being eight years.

Legal breakthrough

In his ruling, Justice Mugambi declared that the provision violated Articles 27, 28, and 43 of the Constitution, which guarantee people the right to the highest attainable standard of health, equality, non-discrimination based on health status and disability, and the right to human dignity.

Mugambi noted that the existence of Section 226 exposed suicide survivors and potential victims with suicidal ideation to possible reprisals, eroding their right to the highest attainable standard of health. “Criminalising a mental health issue discriminates on the basis of health, which is unconstitutional. It also indignifies and disgraces victims of suicidal ideation in the eyes of the community for actions that are beyond their mental control,” ruled the judge.

In their petition, Charity, KNCHR, and KPA argued that in Kenya and globally, undiagnosed and untreated mental health conditions, as well as mental disabilities, are the primary driving factors behind attempted suicide.

They maintained that the criminalisation of attempted suicide amounted to the punishment of persons with mental disabilities, contrary to Section 2 of the Persons with Disabilities Act, and Articles 27 and 260 of the Constitution.

This, they argued, contradicts the constitutional requirements guaranteeing the right to the highest attainable standard of healthcare under Article 43 of the Constitution and Section 4 of the Health Act, 2017.

Posthumous victory

In her argument in court, the late Charity had told the court that the continued criminalisation of attempted suicide escalated stigma, which in turn hindered persons with mental health disorders and those struggling with suicidal ideation from seeking the help they desperately needed.

Charity revealed that she struggled with suicidal thoughts from the age of 14 and continued to experience high bouts of energy followed by periods of depression for over 20 years before she was diagnosed with bipolar disorder in 2015.

She also disclosed that she suffered in silence, fearing that sharing her struggles would result in arrest by the police.

Charity was also concerned that death by suicide was still shunned by the community at large, with religious leaders declining to perform burial rites for such individuals.

The World Health Organisation (WHO) ranked Kenya as the sixth-highest African country with levels of depression, with at least 1.9 million Kenyans diagnosed with the condition.

For Charity’s family, the ruling was a victory, particularly for families with members struggling with mental health issues.

Charity’s younger brother, Tom Muturi, said they had been intentional in walking with her on her mental wellness journey, particularly after she was diagnosed with bipolar disorder 10 years ago.

“The ruling has a sad side because I wish she were here to see the victory, but it also gives us pride that this is the fruit of her advocacy work,” said Tom.

He noted that the historic judgement would shift suicide attempts from being a criminal issue to a human rights and health issue.

“Just like Charity, the conservative nature of our African culture silenced people from sharing when battling suicidal thoughts because, besides it being morally wrong, it was also a crime,” said Tom.

Dr Bernard Mogesa, who represented the KNCHR in the matter, argued that the continued criminalisation of attempted suicide only increased stigma and trauma, ultimately denying vulnerable individuals the healthcare, psychological support, and family and community assistance they needed.

He highlighted Kenya’s ratification of the United Nations Convention on the Rights of Persons with Disabilities, which obligates the country to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs, and practices that discriminate against persons with disabilities.

The commission also argued that the criminalisation of attempted suicide violated both the ratified African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights.

Dr Boniface Chitayi, who represented the KPA in the petition, cited the World Health Organisation’s (WHO) statistics showing that suicide is the second leading cause of death among those aged 15 to 29 and ranks among the top ten causes of death across all age groups.

Approximately 700,000 people die by suicide annually worldwide, according to Dr Chitayi, while reports from police records in August 2021 revealed that 483 Kenyans had died by suicide in the previous three months. “Decriminalising attempted suicide will increase access to mental healthcare, reduce stigma and discrimination, lessen the fear of seeking help, strengthen social support systems, and ultimately reduce deaths by suicide,” Dr Chitayi argued.

Granted, the court judgement is the beginning of yet another journey to destigmatise mental health disorders in the community. “Our prayer is that those who battle with suicidal ideation get support, and even when someone dies by suicide, the family gets support. Because some are denied burial rites or buried in a cemetery, the stigma is even heavier for the family,” said Tom.

Prof Lukoye Atwoli, deputy director of the Brain and Mind Institute at Aga Khan University and Dean of the Medical College, celebrated the court’s decision as a major victory for both mental health advocacy and the broader Kenyan population.

Nobody is immune

“Nobody is immune to mental health issues. Nobody is immune to experiencing suicidal thoughts at some point in their life. You want to be able to seek help without fear of criminalisation. This decision is a great moment not just for the mental health community, but for everyone in Kenya,” he said.

He added: “For over 10 years, the mental health fraternity in Kenya has been advocating for the repeal of the section of the Penal Code that criminalises attempted suicide.”

The law, which threatened jail time or fines for those who attempted suicide, created an environment of fear and stigma that discouraged many from seeking help.

Prof Lukoye emphasised that those struggling with suicidal ideation were often reluctant to confide in others, fearing legal repercussions.

The professor said many people with suicidal ideation do not talk about it, and the first time it is discovered that they are suffering is when they attempt suicide or, tragically, when they complete it. “So, it is a matter of life and death for some people because when somebody has suicidal ideation, when they talk about it to someone else, the chances of completing suicide are very low,” said Prof Lukoye.

This, he added, has made access to care a critical challenge, with insurance companies declining coverage for mental health treatments, citing the crime associated with suicide attempts.

“Declaring it unconstitutional and no longer a crime opens up the opportunity for people with suicidal ideation to seek help and not be discriminated against by insurers and other care providers,” he added.

Beyond legal hurdles, societal stigma around suicide attempts has been another deeply entrenched issue. Lukoye highlighted how people with suicidal ideation and their families faced exclusion, further exacerbating their suffering.

“When somebody has these thoughts, even before they talk about it, they have self-stigma because the community scoffs at people who attempt suicide. People who die by suicide, their bodies and ceremonies are treated with disdain to make them look like bad people,” said Prof Lukoye.

He also touched on the psychological mechanisms behind suicidal thoughts, explaining that those experiencing them often feel overwhelmed by feelings of worthlessness or hopelessness.

In some cases, mental health disorders such as depression, bipolar disorder, or schizophrenia can exacerbate suicidal tendencies.

“The human brain is wired to protect us from harm, including self-inflicted injury. But when someone goes past this instinct and attempts suicide, they have reached a level of distress that has overpowered the brain’s protective mechanisms,” he explained.

For those at risk of suicide, early intervention is key.

Routine screening

Prof Lukoye said many people who attempt suicide have already sought medical attention for unrelated symptoms, such as headaches, but were never asked about their mental health. He advocates for routine screening for suicidal thoughts in healthcare settings to ensure those at risk are identified and provided with the necessary care.

“The problem is that mental health is often overlooked in health facilities. We need a system where people are routinely screened for mental health issues, just like any other medical condition,” said the psychiatrist.

Ultimately, he believes that decriminalising suicide attempts will not encourage people to kill themselves, but will create a safer space for those suffering to seek support. “Decriminalising suicide doesn’t target healthy individuals, telling them not to attempt it. Instead, it focuses on those already experiencing suicidal thoughts, who have not been speaking out or seeking help, and creates a safe space for them to open up and get the support they need,” he explained.

Looking ahead, Prof Lukoye, who petitioned the parliament through the Public Petitions Committee of the National Assembly to repeal the Penal Code provision, is optimistic that the High Court ruling will pave the way for broader legislative changes.

“Now, it’s up to Parliament to repeal the provision in the Penal Code that criminalises suicide attempts. The judiciary has already set a precedent. Parliament must now follow through to ensure mental health care is accessible and free from the threat of criminalisation,” he said.

For Charity’s family, the cultural stigma surrounding suicide remains a significant barrier for those struggling with suicidal thoughts to seek help.

“Although she ultimately died by suicide, one thing we thank God for is that she did not succumb earlier, as is the case for some battling it. We gave her the support she needed, and that made it bearable for her,” said her brother, Tom.

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