An analysis of Kenya’s legal framework on mental health

Mental health is the basis of a person’s well-being. At any particular point in a person’s life, they are either socially and psychologically stable or suffer from some form of mental instability which as a result affects their work and relationships. The World Health Organization and other social institutions have been at the forefront in ensuring everyone enjoys optimal mental health care. This is through psychiatric services in various health facilities as well as therapy and counseling sessions which are common in many institutions.

Mental Health is a basic human right that is broadly recognized in Kenya’s laws. The Constitution under Article 43 provides for the right to the highest attainable standard of health. The Mental Health Act 2022 is an updated version of the 1987 Act and its efforts to recognize and guarantee the rights of persons suffering from any form of mental disorder is worthy of appraisal.  Research shows that in Kenya, one in every ten people suffers from a mental health condition.[1] These people face a lot of stigmas, discrimination, and neglect from the public and relatives due to stereotypes, such as, mental disorders are caused by a curse or witchcraft.[2] As a result, they end up losing their property and sometimes getting disinherited. When they are taken to mental health facilities for care and treatment the services are mostly wanting due to a shortage of psychiatric resources.

Section I of the article is this introduction. Section II analyses the current mental health status in Kenya. Section III, the laws and policies guaranteeing the right to mental health are assessed. Section IV looks into the reforms on criminal liability for offenses that result from mental health conditions. The article concludes that while Kenya has put in tremendous efforts through legislation to support and care for the mentally ill, the implementation bit still lags behind. Additionally, the public ought to be sensitized on how to accord the best care for these people.

  1.  Conceptualizing mental health

The World Health Organization (WHO) has defined mental health as a state of mental well-being that enables people to cope with the stresses of life, realize their abilities, learn well and work well, and contribute to their community.[3]Additionally, mental health is believed to encompass one’s emotional, psychological, and social well-being in a way that affects how an individual thinks, feels, and acts.[4]

Many times, poor mental health and mental illness/disorder are used interchangeably although they mean totally different things.[5] A person can have poor mental health and fail to be diagnosed with any mental disorder condition.[6] Similarly, some people diagnosed with a type of mental illness can experience moments of mental and social well-being.[7] It is also important to clarify that, symptoms for mental disorders range in severity and duration from one person to another and are strictly diagnosable health conditions hence, distinct from feelings of sadness, stress, or fear that anyone can experience in their day-to-day lives.[8]

Mental disorder is a condition of mental health associated with significant distress, impairment in functioning, or risk of self-harm.[9] The Kenya National Commission of Human Rights estimates that 25% and 40% of outpatients and inpatients respectively suffer from mental health conditions with most frequent diagnoses of mental illnesses made in general hospital settings being depression, substance abuse, stress, and anxiety disorders.[10]

According to the World Health Organization’s 2017 report,[11] Kenya was not only ranked fifth among African countries with the highest number of depression cases but also a high level of depression and suicidal behavior, mental distress, and substance abuse.

Severe mental illnesses can be known through diagnosis, disability, and duration. They include disorders with psychotic symptoms such as schizophrenia, schizoaffective disorder, manic depressive disorder, and autism, as well as severe forms of other disorders such as major depression, panic disorder, and obsessive-compulsive disorder.[12] These conditions require treatment (sometimes emergency) in mental health hospitals and facilities under the care of a professional psychiatrist.

There is a lot of stereotypes about the cause of severe mental illness in Kenya, with some individuals associating it witchcraft or curses.[13] People, therefore, tend to have negative attitudes towards such people who experience, as a result, stigma, discrimination, and to some extent human rights violation. This is not just limited to the patients but extends widely to the relatives and close friends of the mentally ill patients.

Mental illnesses lack a particular cause as they develop as a result of one having many of its risk factors.[14] Such risk factors include:mental illness running in the family due to genetics; an imbalance of natural chemicals in the brain and body; living in stressful environments; tragic accidents or bereavement; childhood traumas; constant negative thoughts; unhealthy habits like not getting enough sleep or under eating; and excessive drugs and alcohol consumption.[15] Such conditions require urgent medical attention in mental hospitals or any other psychiatric facility. Some mentally ill people developed the condition slowly while in others it appeared suddenly usually after being triggered by a stressful event.[16]

Mental health or psychiatric hospitals are hospitals or wards that specialize in the treatment of serious mental illnesses.[17] Kenya, like many other countries in Africa, is under-resourced in terms of mental health facilities as well as qualified personnel: professional psychiatrists.[18] The situation is worsened as there is an exponential rise in mental health issues in Kenya while the resources seem to be constant.

Mathari National Teaching and Referral Hospital in Nairobi is the main psychiatric teaching and treatment hospital in Kenya with a bed capacity of 700 patients.[19] The other mental hospitals and clinics in Kenya specializing in mental health include, The Outspan Hospital: Psychology Department, Chiromo Lane Medical Centre (CLMC), Kenyatta National Hospital: Mental Health Department, Aga Khan Hospital: Psychiatric Clinic, MP Shah Hospital: Mental Health Clinic, The Nairobi West Hospital: Psychiatry Department, and Meridian Health Group: Karatina Recovery Centre

There are also Provincial general hospitals which have their own mental health units. Such hospitals include Nyeri PGH, Moi Teaching and Referral Hospital, Embu PGH, Rift Valley PGH, Coast PGH, Garissa General Provincial Hospital, and Nyasare PGH.

A number of Non-Governmental Organizations, self-help groups, private hospitals, and schools have joined the fight to promote mental health in Kenya. These institutions have operationalized mental health units where they offer counseling and therapy sessions for free or at a small cost. Others, with the required facilities and personnel, conduct diagnoses for these conditions. These services are important as they help to identify mental health conditions in the early stages before they become severe. Many people, sometimes unknowingly, have been saved from situations that would have resulted in Severe Mental Illnesses conditions through counseling and therapy.

  1.  Legal framework on mental health in Kenya

It is easy to think that mental health is only a social issue and that the law has little or no role to play in it. However, this may not the case. The law has been very vibrant and expressive in ensuring that mental health is promoted and the rights of mentally ill persons are not protected.

  1. The Constitution

The Constitution under Article 43 (1) provides that every person has the right to the highest attainable standard of health.[20]Although there is no express mention of the term mental health, the high standard of health envisioned has been interpreted to undoubtedly encompass mental health. There are other International Conventions that Kenya has ratified that directly mention mental health as a basic human right and rests an obligation on states to put up measures towards the realization of the same.

For instance, Article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides that everyone has the right to the enjoyment of the highest attainable standard of physical and mental health.[21] Similarly, Article 16 of the African Charter on Human and People’s Rights (ACHPR) states that “Every individual shall have the right to enjoy the best attainable state of physical and mental health.”[22]

  1. The Mental Health Act, 2022

The Mental Health Act of Kenya has been termed as one of the most progressive acts of its kind in Africa and the world:[23] an amendment of the outdated Mental Health Act of 1987.[24] The Act provides guidelines on the reception of voluntary[25] and involuntary[26] patients in mental hospitals, outlines the procedures for establishment of mental hospitals[27], and establishes the Kenya Board of Mental Health[28] and its subsidiary at the district level.[29] The board is charged with the responsibility of overseeing mental health activities across the country and reporting to the government the status of the same and recommending reforms.

Most importantly and an aspect that was not captured by the predecessor instrument, the Act confers powers to the courts to appoint managers over the estates of mentally ill patients and outlines the managers’ roles, powers, and restrictions.[30] Insurance companies have an obligation under the act to scrap of any policy which excludes or restricts a person from insuring against mental health disorders.[31]

Quite elaborately, the Act outlines offences in relation to handling of mentally ill patients for instance cruel treatment and neglect of such people amounts to an offence.[32] The general penalty for this and other offences under the act is a fine of not more than 10, 000 Kenya Shillings, or imprisonment for not more than 12 months or both according to section 53 of the Act. Indeed, the Act can be celebrated as a comprehensive and progressive legal framework for mental health in Kenya.

  1. The Ministry of Health policies

Mental health falls squarely under the Ministry of Health. The Ministry established a task force in 2019 to look into the status of mental health in Kenya following President Uhuru Kenyatta’s directive during the 56th Madaraka Day celebration on 1st June 2019, noting that depression was a crisis in Kenya and urged employers and institutions to invest more time and resources in facilitating the mental well-being of their charges. “I therefore, direct the Ministry of Health in consultation with the County Governments, Ministries of Education, Labor & Social Protection and Public Service, Youth & Gender Affairs, to formulate an appropriate policy response…” he added.

In addition, the Kenya Mental Health Action Plan (2021-2025) is part of the long-term Kenya Mental Health Policy (2015-2030). The Action Plan reports on the status of mental health in Kenya and gives a roadmap for securing reforms and building strong mental health systems, with ultimate goal of attaining the highest standard of mental health in Kenya.[33]

In the Action plan, the crucial element of mental health funding is discussed. It is noted that only 0.01% of the national health budget is allocated to mental health. The Action plan points out that many Kenyans have been forced into poverty in pursuit of mental health care. It highly recommends an amendment to the Mental Health Act to provide for mental health funds to address mental health disparities.

The Mental Health Act, 2022 in section 20 directs the minister of health to set the limit for the admission fees payable in governmental mental hospitals. Non-governmental mental hospital charges are also to be in such a manner as directed by the Ministry of Finance. This directive will probably regulate the cost of mental health care and make it more affordable to all. Under Section 8(1) of the Mental Health Act 2022, expenses of the Kenya Board of Mental Health are to be met out of funds voted for the purpose by Parliament. This means that the National Assembly as well as the county assemblies, on making their fiscal budgets, will have to include funds directed towards mental health. The functions of the board include coordinating mental health activities in Kenya by among other things, organizing community or family-based programs for the care of persons suffering from a mental disorder.[34]

  1. Reforms on criminal liability for the mentally ill: Guilty but insane? Or not guilty for reason of insanity?

One is not criminally responsible for an act if at the time of doing the act or making the omission they were through any disease affecting their mind making them incapable of understanding or knowing what they were doing; but they are criminally responsible where their mind, although was affected by the disease, it did not affect his capability to understand or know what he was doing.[35] This is the defense of insanity, where proven in criminal proceedings, a finding of guilty but insane is reached in accordance with section 166 of the Criminal Procedure Act. As a result, the Act provides that they are detained at the President’s pleasure in a facility where they will be able to receive treatment. This is usually a mental health hospital or a prison where psychiatric services are offered to them. While isolation and treatment of the defendant form the primary aim of this verdict, the conditions crucial to such implementation are wanting in Kenya due to the dire shortage of medication, therapy, a place of custody, and the presence of psychiatrists.[36]

Mwongo J in Republic v JKN [2021] eKLR on the constitutionality of the President’s power of committal in a finding of guilty but insane, found that the provisions of sections 166 and 167 of the Criminal Procedure Code are not in conformity with article 50(1) and (9) of the Constitution as they avail an accused person no room to appeal to seek review against the Presidents pleasure.[37] Moreover, the Court of Appeal in the case of Wakesho v Republic [2021][38]directed the office of the Attorney General to make reforms on the provisions of the special finding of guilty but insane as provided for in section 166 of the Criminal Procedure Code for two main reasons; firstly, the court was of the view that a finding of not guilty for reason of insanity is more legally sound than that of guilty but insane as in criminal proceedings, it has to be established beyond reasonable doubt that the defendant acted voluntarily and with a blameworthy mind.

Secondly, the court was of the opinion that the provisions violate the right to a fair trial in Article 50(2) of the Constitution as the accused, being insane, is not fully informed of nor appreciates the motions of the trial that eventually convict him. In this case, the court of appeal set aside the death sentence initially made upon a finding of guilty but insane and directed for the treatment of the appellant in a mental hospital where they will be released on certification of the psychiatrist in charge that he is not a danger to himself or the society.

Decriminalizing attempted suicide

While suicidal behavior is a common mental health condition in Kenya with the recent suicide rate in Kenya standing at 4 deaths per day in 2022 according to the Ministry of Health Report, the Penal Code under section 226, read together with section 36, criminalizes attempted suicide and provides a penalty of two years imprisonment.[39] Consequently, the Kenya National Human Rights Commission is of the opinion that criminalization of suicide does not deter people from committing suicide but rather prevents those in need from seeking help as it exacerbates social stigma.[40]The Commission is leading a petition at the High Court of Kenya that seeks to decriminalize attempted suicide. According to their papers filed before the High Court judge, Antony Mrima, they argue that survivors ought to be placed under mental care and not jail.[41]

One of The Kenya Mental Health Taskforce report key findings was that there are legislations with clauses which negatively impacted on people with mental health conditions, psychosocial, intellectual, and cognitive disabilities. To curb such adverse effects, the taskforce recommended that the Kenya Law Reform Commission ought to decriminalize suicide.[42] In addition, the taskforce recommended that Kenya should adopt the WHO guidelines to develop a National Program for suicide prevention.

The report further emphasizes that most mental health legislation is archaic and obsolete, hence there is need for amendment to bring them in line with the provisions of the Convention on the Rights of People with Disabilities (CRPD). The Convention’s purpose is to promote, protect and ensure the full enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.[43] Such terminologies that the commission recommends be reviewed include – imbeciles, idiots, lunatics, and criminalization of attempted suicide as they perpetuate stigma and discrimination against persons with mental disorders.[44]

Conclusion

Kenya, like many other countries in Africa, is under-resourced to effectively respond to the rising mental health problems. There is an urgent need therefore, to allocate more funds in order to purchase equipment and train more medical staff in this area. We, however, celebrate the Mental Health Act of 2022 for recognizing and guaranteeing the rights of persons that suffer from mental health disorders.

Nonetheless, there is more work to be done in reviewing other legislations such as the Penal Code and the Criminal Procedure Code to amend terminologies and provisions that degrade and stigmatize persons who are mentally ill. These efforts are necessary if we are to realize the constitutional provision of the right to the highest attainable standard of health for everyone.


[1] Ministry of Health, Kenya https://www.health.go.ke/mental-health-taskforce-urges-government-to-declare-mental-health-a-national-emergency-nairobi-tuesday-july-7-  Accessed 6/4/2023

[2] Ibid

[3] WHO Mental health, https://www.who.int/news-room/fact-sheets/detail/mental-health-strengthening-our-response Accessed 6/4/2023

[4] About Mental Health, https://www.cdc.gov/mentalhealth/learn/index.htm Accessed 6/4/2023

[5] Ibid

[6] Ibid

[7] Ibid

[8] Ibid

[9] Mental health, https://www.who.int/news-room/fact-sheets/detail/mental-health-strengthening-our-response Accessed 6/4/2023

[10] Marangu E., Mansouri F., Sands N., Ndetei D., Muriithi P., Wynter K., Rawson H. Assessing mental health literacy of prmary health care workers in Kenya: A cross-sectional survey. Int. J. Ment. Health Syst. 2021;15:1. doi: 10.1186/s13033-021-00481-z. [PMC free article] [PubMed] [CrossRef] [Google Scholar] [Ref list]

[11] World Health Organization https://apps.who.int/iris/bitstream/handle/10665/254610/WHO-MSD-MER-2017.2;jsessionid=CE19F2A04CBCD4D9F116CA3A5230D2E8?sequence=1

[12] What is Serious Mental Illness, https://smiadviser.org/about/serious-mental-illness#:~:text=It%20stipulated%20that%20%E2%80%9Csevere%20mental,major%20depression%2C%20panic%20disorder%2C%20and Accessed 6/4/2023

[13] Kenya National Human Rights Commission’s Report on the State of Mental Health in Kenya 2022

[14] What causes mental illness?, https://screening.mhanational.org/content/what-causes-mental-illness/?layout=actions_f Accessed 6/4/2023

[15] Ibid

[16] Ibid

[17] Psychiatric Hospitals and Mental Clinics in Kenya, https://www.kenyapharmtech.com/psychiatric-hospitals-and-mental-clinics-in-kenya/ Accessed 6/4/2023

[18] Ibid

[19] Ibid

[20] Constitution of Kenya 2010,  Article 43 (1) (a)

[21] ICESCR, article 12(1)

[22] African Charter on Human and People’s Rights, article 16

[23] CAP 248, Laws of Kenya

[24] No. 14 of 1987

[25] Mental Health Act 2022, Section 10

[26] Mental Health Act 2022, Section 14

[27] Mental Health Act 2022, Section 9

[28] Mental Health Act 2022, Section 4

[29] Mental Health Act 2022, Section 7

[30] Mental Health Act 2022, Section 26, 27

[31] Mental Health Act 2022, Section 46

[32] Mental Health Act 2022, Section 51

[33] Kenya mental health action plan 2021-2025, Foreword by Hon. Mutahi Kagwe (Former Health Cabinet Secretary).

[34] Mental Health Act 2022, Section 5

[35] Penal Code of Kenya, section 12

[36] Kangethe M. W, The Insanity of Kenya’s ‘Guilty but Insane’ Verdict, Strathmore Law Review, Volume 6, 2021

[37] Republic v JKN [2021] eKLR

[38] Wakesho v Republic (Criminal Appeal 8 of 2016) [2021] KECA 223 (KLR) (3 December 2021)

[39] Penal Code of Kenya, section 226

[40] Kenya National Human Rights Commission, General Comments on the Draft Guidance on Mental Health, Human Rights and Legislation, Presented to United Nations High Commission For Human Rights, 31st August 2022

[41] Kamau Muthoni, Attempted Suicide is no crime, group tells judge, < https://www.standardmedia.co.ke/the-standard/article/2001437135/attempted-suicide-is-no-crime-group-tells-judg> Accessed 6/4/2023

[42] Kenya Mental Health Action Plan 2021-2025

[43]United Nations Convention on the Rights of Persons with Disabilities and Optional Protocol <https://www.un.org/disabilities/documents/convention/convoptprot-e.pdf> Accessed 6/4/2023

[44] Ibid

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