Posted: 7 February, 2025 Filed under: Pawi Fortune, Soita Shitanda Elvis | Tags: Jackson Mwangi Kariuki v Republic, Kenya, Kenyan Penal Code, law, legal remedies, mental well-being, morality, outdated legislation, public humiliation, self-destruction, self-harm, sexual orientation, suicide, suicide criminalisation
| Author: Pawi Fortune Federation of African Law Students, Kenya |
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Author: Soita Shitanda Elvis Kabarak University Law School |
‘Austin taught that the only force behind the law was physical force, and Mill declared that the only purpose for which that force could rightfully be used against any member of the community was to prevent harm to others; his own good, physical or moral, was not sufficient warrant.’[1]
The question on law and morality is as old and controversial as the question of which came first between the chicken and the egg. To some, law and morality are two separate entities whereas others are of the opinion that law and morality are interconnected. According to Professor H.L.A Hart, law and morality are two distinct social phenomena, and a free society should allow for morally autonomous choices.[2] Lord Devlin on the other hand argues that when conduct arouses widespread feelings of intolerance, indignation and disgust, it deserves to be suppressed by legal coercion in interest of the integrity of the society.[3] The issue of suicide intersects with the complex interplay between legal frameworks and societal morality, raising profound questions about individual autonomy, the state’s role in protecting life, and the ethical implications of criminalising self-destructive behavior. This article aims to provide a critical assessment of the Kenyan Penal Code’s stance on suicide, advocating for a shift towards a compassionate and supportive legal framework.
Is it an act of self-destruction when one leaps from Times Tower, driven by societal rejection of their sexual orientation? Or when one ends their life with a bullet, following the collapse of a sixteen-year marriage? If that amounts to suicide, is it safe to say that when Adam partook of the fruit from the tree of knowledge of good and evil, knowing it would lead to his demise, he, in essence, undertook an act of self-destruction? Did Jesus Christ commit suicide?[4] These examples offer various insights into the phenomenon of suicide. There are countless reasons why someone might be driven to end their life, and fully understanding these reasons is nearly impossible. Those who have crossed into the unknown cannot share their experiences—whether they found peace, were trapped in eternal regret, returned to the void, or glimpsed the world anew through the eyes of a newborn, granted another chance at life. These mysteries remain beyond our reach. As a society deeply scarred by this phenomenon, our imperative is to prevent it by understanding the needs of those at risk of falling victim, rather than ignoring them when they need help and punishing them.
Ali Mazrui defines suicide as self-destruction.[5] It refers to death caused by injuring oneself with the intent to die.[6] Similarly, Emile Durkheim expresses suicide as one willingly giving himself out to death.[7] In many countries, including Kenya, such actions have criminal consequences if the ‘perpetrator’ is unsuccessful.
Section 226 of the Penal Code provides that any person who attempts to kill himself is guilty of a misdemeanour.[8] A person convicted of a misdemeanour is liable for imprisonment of up to three years. In the case of Jackson Mwangi Kariuki v Republic, the High Court sentenced the accused to two years of imprisonment for attempting suicide.[9] This is a clear expression of the State saying to a suicidal person that they better succeed at their attempt to kill themselves lest they face the consequence of being imprisoned.
A major challenge in Kenya is the excessive use of legal remedies in decision-making, hindering the effective integration of expertise from other fields in social and political interventions; section 226 is a clear example of a law made without the inclusion of other necessary fields such as psychology. According to Professor Lukoye Atwoli, by the time someone is overcoming the inbuilt survival imperative and makes a serious attempt to end their life, they have reached the end of their coping ability and feel that it is the only available solution. Jailing them or even taking them through a prolonged trial only increases the risk of the act later on. [10] This begs the question whether the law does in fact protect and promote life or punish despair.
Suicide was first criminalised in England in 967 CE when King Edward pronounced that the property of any person who died by suicide would be forfeited to the King. Consequently, it was later assumed that because suicide led to forfeiture, which was associate with crime, then it was a crime.[11] The British colonial legacy is evident in the prevalence of suicide criminalisation laws across many African nations, including Kenya. Ironically, while England, the source of these laws, decriminalised suicide in 1961, Kenya continues to maintain this outdated legislation.
The continued occurrence of suicide in Kenya, notwithstanding its criminalisation, raises concerns about the potential counterproductivity of this legal framework in preventing self-harm and promoting mental well-being. A report by the World Health Organisation revealed that 720,000 people die by suicide each year.[12] In Kenya, four people die by suicide on a daily basis[13] which accumulates to approximately 28 deaths by suicide each week, 112 each month and 1,344 each year. The reported figures may not fully capture the true scope of the issue, as the threat of legal repercussions, as seen in the case of Jackson Mwangi Kariuki, may discourage individuals from seeking help and reporting suicide attempts, thereby contributing to underreporting.
Born intersex and raised as a female by the name Mary, James Karanja faced severe societal discrimination including expulsion from school and public humiliation. In one particular ordeal, they were publicly undressed in a bid to confirm their gender. This treatment saw Karanja attempt to end their life three times. If a psychiatrist, entrusted by Karanja to heal their wounds, turns to the law, revealing their three attempts at escape from pain and the police throw them in a cell because the law demands it, will justice truly be served, or does it merely deepen the scars of a soul already tormented?[14] This is a serious question that should exercise the minds of policymakers, legislators and law enforcement in Kenya.
We submit in conclusion that the Kenyan Penal Code’s criminalisation of suicide, a relic of British colonial rule, reflects a punitive approach that fails to address the underlying causes of self-harm. This outdated legislation not only fails to prevent suicide but may also deter individuals from seeking help due to the fear of legal repercussions. Instead of criminalising despair, Kenya should prioritise a compassionate and supportive approach to mental health. This necessitates decriminalising suicide, investing in accessible mental health services, and promoting a culture of understanding and acceptance surrounding mental health struggles. By fostering a society that prioritises mental well-being and supports those in need, Kenya can effectively address the issue of suicide and save countless lives.
[1] Lord Devlin, ‘Law, Democracy and Morality’ 110 University of Pennsylvania Law Review, 1962, 635.
[2] Herbert Lionel Adolphus Hart, Law, Liberty and Morality, Stanford University Press, 1963.
[3] J. C. Dybikowski. “Lord Devlin’s Morality and Its Enforcement.” Proceedings of the Aristotelian Society, vol. 75, 1974, pp. 89-109
[4] Ali Mazrui,’Sacred Suicide’, Indiana University Press on behalf of the Hutchins Center for African and African American Research at Harvard University,page 11
[5] Ali Mazrui, Sacred Suicide, Indiana University Press, 1965,11.
[6] Preventing suicide: Suicide prevention factsheet, 2024 -< https://www.cdc.gov/suicide/pdf/NCIPC-Suicide-FactSheet-508_FINAL.pdf >- on 23rd November 2024.
[7] Emile Durkheim, Suicide: A study in sociology -< https://www.gacbe.ac.in/images/E%20books/Durkheim%20-%20Suicide%20-%20A%20study%20in%20sociology.pdf >- on 23rd November 2024.
[8] Penal Code (Cap 63 Laws of Kenya).
[9] Jackson Mwangi Kariuki v Republic [2016] KEHC 2346 (KLR)
[10] Rosa Agutu, ‘Mental health experts call for decriminalisation of suicide’, TheSunday Standard, 2020 Mental health experts call for decriminalisation of suicide – The Standard
[11] Marque Lawyers, ‘The long history of criminalising suicide’ Lexology -< https://www.lexology.com/library/detail.aspx?g=d5ebd361-1d36-4405-bfa6-50441866ac41#:~:text=Forfeiture%20was%2C%20in%20medieval%20times,must%20be%20a%20crime%20too. >- on 21st December 2024.
[12] World Health Organisation, ‘Suicide’ 29 August 2024 -< https://www.who.int/news-room/fact-sheets/detail/suicide >- on 23 December 2024.
[13] Dr. Nasri Omar, Francis Nyamari, Jedidah Oduor, Elizabeth Odhiambo, Peter Njapit, Zipporah Kogi, Samuel Kamau and Dr. Leila Abdullahi, ‘Every Suicide is a preventable tragedy, a need for an integrated care model in Kenya’ Republic of Kenya Ministry of Health.
[14] Decriminalisation of suicide: Calls for change in law that punishes people with mental illness – The Standard Health
About the Authors:
Pawi Fortune is the Editor-in-Chief Federation of African Law Students, Kenya. of the Kabarak Law Review blog.
Soita Shitanda Elvis is a third-year Law Student at Kabarak University.
