It was a cold July morning in 2021 when Waweru Muthumbi found himself at the gates of Mathari National Hospital, seeking help for his mental health. After a failed attempt at suicide, Muthumbi was checking himself at Mathari.

It had taken Muthumbi all his fortitude to decide to seek help and he hailed an Uber and headed to Mathari. This is where he sought refuge hoping to get treatment for the nagging feeling of no longer wanting to be alive. At that point, he had been battling this awful mood for close to a decade.

Mathari: Kenya’s only referral mental health hospital

It was his third attempt at his own life and what Muthumbi needed urgently was attention from a specialist, who could help him navigate the tempest that had clouded his outlook to life.

Mathari National Hospital is Kenya’s only national referral mental health institution. He said when he got to the hospital there was no doctor present so he had to explain his woes to a nurse and the guards. Instead of helping him, the overwhelmed hospital staff did the unthinkable. “The nurses as well as the guards called the police on me,” he says.

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The law in Kenya outlaws suicide and psychiatric officials are required to report cases to the police. For Muthumbi and thousands of others in need of lifesaving psychiatric help reaching out could mean a fine. In worse-case scenario it can also mean a two-year prison term as dictated by the law.

Muthumbi says he was lucky he was first booked at Muthaiga police station “for creating a disturbance” for the night.

In the morning as the police brought in a new cohorts of people arrested during the night, Muthumbi seized his chance to escape. He dashed at the door, pleading with the officer nearest to him across the barriers. He needed help, he sought the police in charge to explain himself.

An officer took notice and he explained to him he was diagnosed with depression at the Moi Teaching and Referral Hospital a decade ago. He went on to divulge how he had three failed suicide attempts.

Decriminalise suicide to fight mental health

Luckily, the officer in charge, listened to Muthumbi and understood the need to take him to hospital for treatment. This, Muthumbi says, was the turning point in his life and the reason why he advocates for the decriminalisation of suicide.

“I wondered how thoughts I had no power to control would lead me to be a guest of the state and not be admitted as a patient where I would get help,” Muthumbi said.

Suicide, which borrows its wording from Latin Suicidium loosely means actions by an individual to take their own life. Suicide is said to stem from various risk factors such as mental disorders, and drug misuse. It’s also closely associated with psychological state, cultural, family and social situations, skepticism, generics, trauma and loss.

The World Health Organization (WHO) says suicide happens impulsively in moments of crisis with a breakdown in the ability to deal with stress. Some causes include financial problems, relationship breakup or chronic pain and illness. The WHO says 77 percent of suicide cases happen in low and middle income countries such as Kenya.

Kenya is witnessing growing number of suicides with a 2022 report indicating that 500 people killed themselves in three months. Of this, the youngest to take their life was nine years while the oldest was 76.

Despite this high level of mental breakdown, Kenya has outlawed the condition according to chapter 63, section 226 of the penal code. It states that any person who attempts to die by suicide is guilty of a misdemeanor and is punishable by up to two years in prison or a fine or both.

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Natural and civil laws

For many psychiatrists, the choice between what is legal and what feels right tends to blur their decision on what to do when facing a case of attempted suicide. Like any rational human, the first desire is to help but then the law stands between patients and their doctors.

In the profession, doctors have often opted to break the law to help their patients saying they follow their conscience as they follow the Hippocratic Oath which ideally comes first in the profession.

The Hippocratic Oath is one of the oldest binding documents in history. The Oath written by Hippocrates is held sacred by physicians: to treat the ill to the best of one's ability, to preserve a patient's privacy, to teach the secrets of medicine to the next generation, and so on.

“My job is not to make the job of the police easier. I have never had a dilemma of whether I should report a patient because I swore to protect the patient at all cost, the Hippocratic Oath dictates that I do no harm and protect them from injustice which is what I do every day,” says psychiatrist Dr Frank Njenga.

Number of cases remains unclear

Psychiatrists and rights activists say that criminalizing attempts by suicide is discriminatory. This is because the measure is designed to deny persons the right to seek professional help.

The legislation, they say, instills fear because of the reality that they might be reported and possibly face prosecution.

Psychiatrists say that criminalizing suicide has led to many unreported cases. It has also led to instances where a patient dies in isolation yet they could have been saved through therapy.

While the WHO estimates that over 700,000 people die by suicide each year, the UN agency further estimates that for every person who dies, 20 more have attempted to die by suicide.

An article published by Chiromo Hospital Group, a leading private hospital that specializes in mental health, states that although 311 people are officially reported to die by suicide annually in Kenya, this is not an accurate estimation owing to punitive measures.

The legal provision which classifies attempted death by suicide as a misdemeanor dates back over 160 years. Surveys show that the legal provision is still practiced in 20 countries

Most laws around the globe prohibiting suicide stems from justification from religious, social, and cultural concerns. For Kenya however, the origin of criminalization of suicide is simply a legacy of the colonial era.

Despite the fact suicide was decriminalised in UK in 1961, Kenya retains the controversial law against push by Human Rights groups to repeal it. 

This law has not favoured patients who suffer from a breakdown in mental health and suicide survivors such as Muthumbi. Over the years, many people continue to go to jail or get fined.

A Mental Health Taskforce was set up by Former President Uhuru Kenyatta declaring mental health a national emergency. It made several recommendations for the Health Ministry, the Judiciary, State Law Office, Kenya Law Reform Commission and Parliament.

Slow efforts to decriminalizing suicide

After increase in suicide cases following isolation, financial stress and mental strain aggravated by Covid-19 pandemic, Kenya has sought to decriminalize suicide, albeit slowly.

A Mental Health Taskforce was set up by Former President Uhuru Kenyatta declaring mental health a national emergency. The taskforce, which borrowed from the WHO Mental Health Action Plan for 2021-2030; came up with the Action Plan for 2021-2025. It made several recommendations for the Health Ministry, the Judiciary, State Law Office, Kenya Law Reform Commission and Parliament.

The recommendations include amending the health Act to align to the Constitution to end criminalizing suicide while amending use of derogatory language. The taskforce called for the amendment of the law relating to criminal justice system to ensure citizens get fair administration of justice, and implement and enforce mental health related laws including the counsellors and psychologists Act.

Led by Dr Njenga, they recommended that mental ill health declared a National Public Health Emergency. They also called for rollout of a national suicide prevention program.

In their Action Plan, the Taskforce argues that the Mental Health Act enacted in 1989 requires amendment. The Act has clauses which negatively impact on people with mental health conditions, psychosocial, intellectual and cognitive disabilities.

“The Kenya Law Reform Commission ought to decriminalise suicide and amend other laws which are discriminatory and use of derogatory language,” said the Dr Njenga led team.

Kenya National Commission on Human Rights, the Kenya Psychiatric Association and Charity Muturi sought to have the court declare a section of the Penal Code that outlaws attempted suicide as being unconstitutional which was opposed by Attorney General Justin Muturi who said it had to go through parliament.

Nominated senator Hamida Kibwana has taken it up and fronted changes to the penal code to decriminalise the act that she attributes to the rising cases of mental health illnesses.

Constitutional right

Experts say that it should not stop at decriminalizing suicide. The fact that Kenya has insufficient health facilities for the mentally ill people is a form of discrimination, too.

The Kenya Mental Health Action Plan 2021-2025 says that despite some emerging social health determinants such as conflicts, trauma, and humanitarian emergencies social economic and socio-cultural disadvantages, the government has not invested well in mental health services.

Kenya has one mental health referral hospital, Mathari. This leaves thousands of people with limited access to quality health services. Across the country only 14 county hospitals have a functional mental health unit.

To establish mental health services across the 47 counties by 2026, the Ministry of Health says it requires Kes560 million budget. The financing will yield an average of five functional county mental health units per year.

Right to health should include mental health disorders

Experts argue that the right to health under the Constitution is posited as a socioeconomic right. The supreme law envisages that every citizen has the right to the highest attainable standard to healthcare services and reproductive healthcare.

The express mention of mental health as constitutive right may not come out plainly from this provision. However, the Constitution pursuant to article 259 gives a guide on how its meaning may be construed. It states that it shall be interpreted in a manner that promotes its values and principles as written in Article 10 of the Constitution.

This sections includes human dignity, equity, social justice, inclusiveness, human rights, nondiscrimination and protection of the marginalized. Article 259 (b) on the other hand, also obligates the state to take legislative, policy and other measures, including the testing of standards to achieve the progressive realization of social-economic rights.

And so many argue that the interpretation of constitutional provision on the right to health should include mental health disorders. It should do so without discriminatory measures in place that deny inherent human dignity.

Consultant Psychiatrist, Chair, African International Division of the Royal College of Psychiatrists Dr Syengo Mutisya says decriminalizing suicide will reveal the extent of the mental health crisis that is boiling beneath the surface. Most importantly, however, it will allow the medical fraternity to openly address the problem.

“A person with suicidal thoughts needs treatment. Decriminalisation of suicide will encourage more people go for treatment. A person who tries to harm themselves should be linked up for psychosocial and psychiatric evaluation and care,” she says.

Until that happens, Kenyans seeking help will continue getting arrested for “creating disturbance” upon checking in hospitals.

Arrested and charged for suicide

Perhaps one of the most infamous cases of criminalised suicide cases in Kenya is that of Presidential Candidate Peter Gichira. He was arrested and charged for trying to jump from the sixth floor of the electoral commission's offices in 2017.

Gichira was among eight candidates, who failed to meet the criteria to contest for Kenya’s presidency. He was charged with destruction of property and creating disturbance. Although Gichira pleaded not guilty, he was later acquitted.

Another example is that of John Wachira from Thirigitu village, Nyeri County. He was jailed on November 7, 2011 following a failed attempt to die by suicide through hanging himself. As reported in the, Daily Nation, the court later punishes him for it. Wachira was given a custodial sentence of three years for his crime.

In yet another case, Kelvin Wanjala, 33, tried jumping from a storey building in Nakuru on October 8, 2013. The tragedy, which was captured on camera, happened when his neighbours called him a thief. He was later arrested and taken to court where he was freed on Kes200,000 bond.

Countries where suicide is decriminalised

These are just some of the few examples showcasing how the law handles those who attempt to die by suicide. While medics and rights’ groups seek decriminalising suicide, the law remains tough on the mentally ill people.

The road towards decriminalisation of suicide may be long and winding. But with various players such as the 2019 World Health Assembly calling for change, there is hope. Many remain hopeful that by decriminalising suicide, Kenya will reduce cases of death by suicide.

By decriminalising suicide, Kenya will join the Cayman Islands that decriminalised suicide in 2020. This was after a campaign emphasized that only five percent of at-risk youth were seeking help because of suicide stigma.

The Author, Nasibo Kabale, is a veteran health reporter, journalist, storyteller, and communicator. She has worked at Daily Nation and Standard, bringing to us frontline stories on the Covid-19 pandemic. She brings us this incredible story on the jailing of suicide survivors and the campaign by psychiatrists to push for the repeal of colonial-era laws criminalizing mental health breakdown. Email: [email protected]