October tenth is World Mental Health Day, and as Kenya marked the day, a Milimani court set a date for the trial of August 8th presidential candidate Peter Gichira over charges of attempted suicide. The charges brought against him are legislated in the Penalty Code Section 226 which provides that anyone who attempts to kill himself is guilty of a misdemeanour. Section 36 of the same law provides that persons found guilty of a misdemeanour will face imprisonment of up to two years, or a fine, or both.
This law, outdated as it is, is still in application. Part of the ‘rationale’ behind it is that legislating against it and setting up a heavily punitive mechanism against the act will deter people from an attempt. In the same vein, other people have theorized that the social contract theory by which we sign over some of our rights to the government in return for protection is the basis of this criminalization. That the government has an interest in your personal life and therefore must take action against you for such a breach.
Objectively speaking, the two reasons are absolutely ridiculous. For one, with a government like ours where institutions barely work, the social contract theory is barely legitimate. Services necessary for basic survival such as health care, water, food and education are only accessible to a fraction of the population. Access in this country is predominantly decided by the class of society one belongs to, despite everyone paying their taxes. The government can therefore not truthfully claim to have a securable interest in people’s lives.
Secondly, as a measure of deterrence, it is simply illogical to claim that this law can be effective in this regard. If anything, it might create greater motivation to commit suicide successfully. What this law fails to consider is the why behind the suicide. Why would a 14-year-old boy kill himself in circumstances even his parents cannot explain? Or another over losing the top position? It’s not just children killing themselves either: the news of a KSL student committing suicide plagued Twitter just last month and the female police officer who shot herself at JKIA over work-related stress last year. The criminalization also just goes to further create secrecy because there are many more cases that go unreported.
Mental health, the cognitive and emotional well-being of a person, has been for a long time a touchy topic, although in the past year conversations around it have started to happen. Still, there is discomfort in how people approach mental illnesses, which are the diseases affecting the brain. This discomfort is as a result of the stigma associated with people living with mental conditions. Cultural and religious beliefs ingrained in people significantly reduce the chances of people seeking help making them predisposed to suicide attempts and thus reducing their chances of survival.
Depression, for example, is the most prevalent with the World Health Organization ranking Kenya sixth in Africa for incidences of the condition. Mental conditions such as this which weigh down on an individual resulting in feelings of hopelessness are what eventually lead to suicide. But the law, blind in its expectations, fails to capture that.
The Kenyan context shows that poverty and unemployment contribute greatly to the general feeling of dissatisfaction. Among young adults, the pressures of growing up most times without solid support systems, loneliness, financial difficulties are just a few of the things that can be considered risk factors. Sentencing hurting people to time in prisons that are less than up to the standard prescribed by human rights is counterproductive since you are isolating them even more. Not only that, but you are also punishing them for being sick. A justice system should not be petty on its own subjects. Instead of legislating to punish the very people this country has failed in terms of provision of better health care and access to resources, the government should set up social safety nets so that people do not feel like they have no options.
As it has been said, “It should not be a mark of strength to be well adjusted to a sick society.” People don’t simply wake up one morning and try to kill themselves for no reason whatsoever. Law should respond to the needs of society. Decriminalizing suicide is the first step that the government must take in order to lift the veil of stigma under which people who need help are suffering.