Kenya ratified the UN Convention on the Rights of Persons with Disabilities (UN CRPD) on 19th May 2009. The Convention is a legally binding international instrument that clarifies Government’s obligations to respect and ensure the equal enjoyment of all human rights by all persons with disabilities.
The New Convention is a landmark instrument that marks a "paradigm shift" in attitudes and approaches to persons with disabilities from being objects of pity and charity to rights holders.
Article 12 of the Convention provides for persons with all disabilities equal recognition before the law and the rights to supported decision making with safeguards to prevent any form of abuse. This is yet to be recognized and provided for in domestic legislation in Kenya, including in the Constitution.
At the same time, the transition from medical model of disability to social & human rights model is yet to be realized in accordance with the UNCRPD. As a result, persons with mental illness are yet to be recognized as people with psychosocial disabilities. They are still referred to as persons of unsound mind in our legislation including in the Constitution.
The concept of legal capacity in the UNCRPD is wider as it includes not only the capability to have status and capacity in the legal order, but also entails the capacity to exercise these rights and to undertake duties by way of one’s conducts.
The Constitution currently has many provisions through which a person with disabilities is declared incompetent, in all or several areas of law; and that allow for the appointment of a legal guardian, who takes decisions as a substitute for the individual.
Deep rooted assumptions and prejudices are the basis of the system of legal incapacitation. It is often claimed that decisions to deprive a person of legal capacity are taken in the subject’s interest. Areas of life that are compromised by the recognition of a person as legally incompetent are most numerous. They include the right to participate in the electoral process, petition the courts and participate in legal proceedings, manage property, and make a will and other inheritance related issues. These are the Sections where Constitutional review is required to ensure compliance with the UNCRPD.
Chapter 1 of the current Constitution Part 2A Subsection 3 (47) says that the Constitution shall have the force of law throughout Kenya and if any other law is inconsistent, the Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.
To conform fully to the requirements of the UNCRPD, it is critically important that specific provisions be enshrined in the Constitution that includes amendments to existing provisions. The Constitution is the supreme law of the country and by entrenching critical provisions in the Constitution is the only way the Government can ensure the highest possible legal protection and equal recognition of persons with all disabilities before the law.
The specific provisions and amendments to the Constitution will involve the following:
1. Introduction of disability as one of the grounds on which discrimination is prohibited and explicitly protecting the rights of persons with disabilities as a general guarantee of equality.
This would mean a review of all sections in the light of Article 12 of the UNCRPD, to ensure the right to self-determination and to equal recognition before the law by all persons with disabilities without any discrimination based on disability. This is in particular to sections referring to persons who acquire disability as of unsound mind.
2. Enshrine into the Constitution a definition of discrimination, which should include the denial of reasonable accommodation as an act of discrimination. The failure to afford a person “reasonable accommodation” amounts to discrimination on the basis of disability. A specific reference should be made to the definition of “reasonable accommodation” as provided for in Article 2 of the UNCRPD.
3. Entrench into the Constitution the Constitutional guarantee of equality provided for in the UNCRPD, which is lawful and should not be subject to other equality guarantees by persons who do not have disabilities but who believe that their exclusion is a violation of their equal rights. This in particular applies where other competing aspects of equality are under consideration e.g. gender, regional etc.
4. Enshrine in the Constitution Supported decision-making starting from the full and equal legal capacity of all citizens, including of those with severe and profound levels of disability.
5. The Constitution should also stipulate the right to receive appropriate support in decision-making, including the necessary safeguards as provided for in Article 12 of the Convention. This relates to the sections in the Constitution that govern the electoral and judicial systems of the country.
6. It is also important for the Constitution to make particular provisions for the adoption of policy and regulatory measures required to ensure equal enjoyment of specific rights by persons with disabilities as set out in the UNCRPD. This will provide legal basis for adoption of adult protection Act among other important legislations needed to enhance access to human rights by persons with all disabilities in Kenya.
7. The Constitution should review all sections that automatically lead to a legal incapacitation once a person is recognised to have intellectual and or mental disability. The sections should be reviewed in line with provisions of Article 12 of the UNCRPD.
8. The Constitution recognition of disability should be persons who have long-term physical, mental, intellectual or sensory impairments, which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.
9. The Constitution should however adopt a definition of disability not limited to the categories mentioned under article 2 of the Convention. These categories of disabilities should include short-term disabilities that relate to the types mentioned above in accordance with the UNCRPD.
Access to justice by persons with sensory, intellectual and mental disabilities is faced with many barriers in the Kenyan Judicial system. In the penal code, persons with intellectual and psychosocial disabilities are still referred to as imbeciles, idiots and persons of unsound mind. They are denied equal recognition before the law and discriminative laws and systems are still used to deny them access to justice.
In the ongoing Constitutional review, the section on the judiciary should provide for the following:
1. Development of legislation that provides for supported decision-making for essential and important decisions of legal relevance, according to the needs and abilities of the persons.
2. Provision for actions that establish criteria and selection processes for suitable support persons; and one that should set up a registration system for these support persons that allows them to be officially recognized as supporter of the disabled individual.
3. Should ensure public and private policies recognise supported decision-making in particular laws governing management of property, access to health, financial management, inheritance etc.
4. Should recognize that all forms of communication are valid and the ways and how people communicate should not be a reason to question their decision-making ability.
5. Should in particular provide for the use of sign language, augmentative, Braille and other forms of communications used by persons with disabilities and provide for the adoption of necessary legislation needed to put these forms of communications into practice.
6. Should guarantee persons with all disabilities access to the support they may need to exercise their legal capacities and ensure appropriate safeguards are put in place to protect abuse of that support.
The Constitution should revise language used in the Constitution to refer to persons with disabilities and abolish use of terminologies that portray lack of capacity in all existing and new legislation. As earlier mentioned and to ensure equality and non-discrimination, the Constitution should specifically provide for the adoption of additional implementing legislation to address the following;
1. A comprehensive and general discrimination law, including the prohibition of using disability as a ground of discrimination in public and private life.
2. Non-discrimination laws in different sectors, such as work, education and access to justice, including disability as a prohibited ground of discrimination.
3. Disability-equality law, prohibiting discrimination based on disability and establishing a broad framework to address disability.
Chapter 3, Sec 33 (1) states that, there shall be twelve nominated members of the National Assembly appointed by the President following a general election, to represent special interests. This section of the Constitution should be reviewed to provide for a mechanism for consulting with persons with disabilities, and/or their representative organizations, at the law-making level. A clear definition of special groups should be entrenched in the Constitution to ensure equal representation of persons with all disabilities and their full engagement in all levels of governance. Persons well informed of the key issues of disabilities and with the capacity to provide technical inputs in different areas of governance should be fully engaged in the on going constitutional, institutional and legal reform processes.
In conclusion, the UNCRPD obliges the government to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities in Kenya. The review of the Constitution is one golden opportunity for persons with disabilities to entrench important provisions needed to promote and protect the rights of persons with disabilities in Kenya. The general principles and the rights provided for in the UNCRPD are included below for information.
The General Principles of the UN CRPD:
1. Respect for the inherent dignity, autonomy, including the freedom to make one's own decisions, and independence of persons
2. Non-discrimination
3. Full and effective participation and inclusion in society
4. Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity
5. Equality of opportunity
6. Accessibility
7. Equality between men and women
8. Respect for the evolving capacities of children with disabilities and for the right of children with disabilities to preserve their identities.
Rights set out in the UNCRPD:
1. Equality before the law without discrimination
2. Right to life, liberty and security of the person
3. Equal recognition before the law and legal capacity
4. Freedom from torture
5. Freedom from exploitation, violence and abuse
6. Right to respect physical and mental integrity
7. Freedom of movement and nationality
8. Right to live in the community
9. Freedom of expression and opinion
10. Respect for privacy
11. Respect for home and the family
12. Right to education
13. Right to health
14. Right to work
15. Right to an adequate standard of living
16. Right to participate in political and public life
17. Right to participate in cultural life
