NAIROBI, Kenya — A proposed law seeks to end the indefinite detention of mentally ill offenders, aligning Kenya’s justice system with constitutional protections and international standards.
The Bill follows a series of High Court rulings that found the previous framework unconstitutional. In 2016, the court ruled that indefinite detention amounted to cruel, inhuman, and degrading treatment under Articles 25 and 29 of the Constitution.
In a separate 2017 decision, Justice John Mativo held that sentencing is a judicial function and cannot be left to executive discretion.
“The imposition of a punishment in a criminal matter… is the exercise of judicial, not executive, power,” he said.
Previously, the President determined the duration of detention for offenders found unfit to plead, raising separation-of-powers concerns.
In January 2025, the High Court struck down the criminalisation of attempted suicide, reinforcing the right to dignity and health.
The government has since integrated mental health services into the national insurance package under the Taifa Care Model and the Social Health Authority. Health CS Aden Duale said, “No Kenyan has to choose between caring for their mind and feeding their family.”
Despite policy progress, gaps persist. Kenya operates 136 prisons holding about 64,000 inmates. A 2023 report by the Kenya National Commission on Human Rights found that two-thirds of prisoners face physical or mental health challenges, with 63 P.c reporting deterioration during incarceration.
The country has only four public mental health hospitals, including Mathari in Nairobi, and facilities in Nakuru, Eldoret and Kisumu. Specialised inpatient services remain limited.
Correctional Services PS Salome Beacco acknowledged in 2024 that prisoners with mental health conditions do not receive adequate care despite constitutional guarantees.
The Bill aligns Kenya with the UN Convention on the Rights of Persons with Disabilities and seeks to ensure equal recognition before the law and protection from degrading treatment.
If enacted, it could mark a major shift in balancing public safety, judicial authority and mental health rights.
