The responsibility for taking care of persons with disability in our communities is often left entirely to their family members. The assumption is that PWDs are helpless and need ‘support’ in everything.
It is also assumed that family members or caregivers should make decisions for them, ignoring the fact that they are humans with the right to have a say in how they live their lives.
The opinions, views, feelings, choices and preferences of PWDs are disregarded as they are seen as ‘a lesser’ people, incapable of doing things ‘normal people’ can. This exposes them to exploitation, violation, and restrictions and sets barriers that are made to seem essential for people in the society to co-exist peacefully.
Kenyan Laws
The Constitution of Kenya, Article 54, recognises PWDs and affirms their rights and, less clearly, their protection. It emphasises that they should be treated with dignity and respect.
They are also not to be discriminated against because of their disability (Article 27). Other relevant laws are the Persons with Disabilities Act the Mental Health Act.
Despite these laws, PWDs are not adequately safeguarded. The rights of those suffering from intellectual and psychosocial disabilities are particularly restricted. The country has seen stories of PWDs chained, hidden from the community, neglected, abused, fired from employment, arrested and kept away from communities.
UN Convention on the Rights of Persons with Disabilities
Kenya ratified this convention in 2008, showing, you might think, a willingness to accept the responsibilities in it, recognise the rights of PWDs and do what is needed to meet the international standards for protection of disability rights.
Article 12 of the convention clarifies that PWDs have a right to equal recognition everywhere as persons before the law, and that they enjoy legal capacity like others in all aspects of life. “Legal capacity” means the ability to make decisions and take action with legal effects, like making a contract.
In Kenya, legal capacity for PWDs is often confused with mental capacity, and - when it is established that a person suffers from disabilities - it is presumed that he or she lacks legal capacity. (This can be true even when a disability is purely physical.) Thus, it is important to distinguish the two.
The United National Committee on this convention published a General Comment on Article 12 in 2014. This insists that mental and legal capacity are different and distinct.
They defined legal capacity as "the ability to hold rights and duties and to exercise them, while mental capacity is the ability of a person to make decisions", which varies from a person to a person. Mental capacity should not be used as a basis for denying legal capacity and taking away from someone with a disability the power to exercise their rights.
The Situation
Kenya has not fully embraced Article 12. In fact, as an international treaty accepted by Kenya, it is made part of Kenyan law by Article 2(6) of the Constitution. But various laws limit the full achievement of Article 12 - including the Marriage, Children’s, and the Mental Health Acts.
A large number of laws (including, unfortunately, the constitution) speak of ‘unsound mind’, a vague and derogatory phrase, but the law fails to guide the courts adequately when ascertaining whether someone is of ‘unsound mind’, leaving too much to the court’s discretion.
This is very noticeable in the Civil Procedure Rules. Once a person is decided to be of unsound mind they lose legal capacity and the court may, usually on application by a caregiver or family, appoint a someone to ‘help deal’ with matters related to the PWD. In criminal cases, the courts usually rely on a doctor’s assessment to help them decide on legal capacity.
The appointment of a guardian as a decision maker for a PWD without considering their preferences or opinions completely ignores PWDs’ rights to make decisions, indeed strips them of those rights, which are crucial, as they are better placed to know those with their best interests at heart. PWDs also know their abusers, and involving them in this decision can help prevent abusers being legally authorised to manage their affairs, further exposing them to exploitation.
Article 12 (3) and (4) of the same convention provide for assisted or supported decision-making by PWDs. Supported decision making recognises that every person has the right and capacity to make decisions, however, due to varying capacities they may need support.
It requires countries to take appropriate measures to provide PWDs with the support they need in exercising their legal capacity, which may include support network, rights based approaches, access to information, a friendly environment and a legal framework.
The Kenyan government recognised this need to shift from substituted to supported design making for PWDs in its 2011 report to the UN Committee on the Convention, expressing a clear intention to take the necessary legal steps and arrangements.
In 2016, the Kenya National Human Rights Commission and Open Society published a briefing paper advising the government on how to implement Article 12.
Reports to the committee since 2016 still cite lack of awareness and understanding of legal capacity as a challenge in implementing Article 12 of the convention with lack of sufficient solutions and efforts to cure the defects. Other challenges cited were outdated laws, lack of funding, lack of a centralised agency dealing with issues of PWDs and lack of data on PWDs.
Recently, there has been some amendment to the existing legislation - through the Mental Health (Amendment) Act 2022. This is a notable improvement due to the introduction of the right to a supporter and supportive decision making agreement. The Act also recognises the right of the person affected “to choose an appropriate form of treatment”.
An illustrative case scenario
In 2021, then President Uhuru Kenyatta suspended a judge of the Environment and Land Court from service on grounds of mental incapacity. This followed a recommendation by the Judicial Service Commission after conducting investigations.
The JSC decision was informed by examination of the judge’s medical records. The President had no choice under Article 168(5) of the Constitution but to suspend the judge while a tribunal he appointed investigated the case further.
This procedure is very similar to that used to remove a judge found guilty of some seriously improper, even criminal, conduct – and suspend them pending full investigation by a tribunal.
Yet illness, including mental illness, may be temporary, and one wonders whether it is necessary to put a judge through this rather public and humiliating process, which may end in a permanent loss of employment when some scheme for temporary withdrawal from work would be effective, and less traumatic.
Recommendations
Encouraging as the amendments to the Mental Health Act are, there is need to elaborate further on how to hold a supporter accountable in order to prevent abuse of authority.
The Act still contains aspects of substituted decision-making since a representative is to be appointed without participation of a person with mental illness to make decisions on PWD affairs and involuntary detention is allowed upon the opinion of a single qualified mental health practitioner.
Thus, Kenya needs to accept the recommendations made by Kenya National Commission on Human Rights on the Amendment Act and consider the following.
First, carrying out further law reforms to ensure substituted decision-making is only in use in special cases where the PWD truly cannot effectively make decisions.
Second, providing for advance directives so that people can make important decisions before they lose mental capacity.
Third, safeguarding PWDs’ interests through providing an accountability mechanism for appointed supporters. A case study of Canada’s implementation of Article 12 can be helpful.
Fourth, carrying out advocacy to end stigma faced by PWDs through awareness and trainings on, supported decision-making.
Conclusion
Although there are developments in Kenya on implementation of Article 12 of CRPD on supported decision-making and legal capacity of PWDs, more is still required for its fruitful achievement.
The author is a human rights advocate and an alumna of Katiba Institute