BY SAM ALFAN .
The High Court has declared a section of the penal code that makes attempted suicide a crime, as unconstitutional.
High Court Justice Mugambi declared Section 226 of the Criminal Penal Code (CPC) unconstitutional for discriminating against persons with mental health issues.
“A declaration is hereby made that Section 226 of the Penal Code is unconstitutional for violating Articles 27, 28 and 43 of the Constitution,” declared Justice Mugambi.
In the 54 page decision, Justice Mugambi said Section 226 of the Penal Code offends Article 27 of the Constitution by criminalising a mental health issue thereby endorsing discrimination on the basis of health which is unconstitutional.
“It also indignifies and disgraces victims of suicide ideation in the eyes of the community for actions that are beyond their mental control which is a violation of Article 28,” said Justice Mugambi.
The Judge added that existence of Section 226 exposes the survivors of suicide and potential victims with suicide ideation to possible reprisals thereby eroding the right to have the highest attainable standard of health envisaged in Article 43 (1) of the Constitution.
The court rejected arguments which justified the existence and retention of Section 226 of the Penal Code insisting that it in consonance with protecting the right to life by deterring and preventing self- destructive behaviour.
“In my view, such an argument flies in the face in view of the very evidence that suicide ideation is mental health issue hence it is not a ‘willed act’ by made by human being of sound mind,” said the judge.
Kenya National Commission on Human Rights Commission, which was among lobbies that filed the case, welcomed the decision by Justice Mugambi adding that equality includes the full and equal enjoyment of all rights and fundamental freedoms.
KNCHR further stated that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
“The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth,” state the human Rights commission.
The commission added that a person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).