Law fails in equal recognition of persons with disabilities

By Dann Okoth

Kenya ratified the UN Convention on the Rights of Persons with Disabilities (UNCRPD) this year.

The Convention is a landmark instrument designed to mark a shift in attitudes and approaches to persons with disabilities from being objects of pity and charity to enjoying their rights.

Article 12 of the Convention provides for persons with all disabilities an equal recognition before the law and the right to decision making with safeguards to prevent any form of abuse.

This is yet to be recognised and provided for in domestic legislation.

Ms Edah W Maina, the chief executive officer of Kenya Society for the Mentally Handicapped says, the transition from medical model of disability to social and human rights model is yet to be realised in accordance with the UNCRPD.

As a result, persons with mental illness are yet to be recognised as people with psychosocial disabilities. They are still referred to as persons of unsound mind in the Constitution.

Declared incompetent

Maina says the Constitution has many provisions through which a person with disabilities is declared incompetent, in all or several areas of law. That allows for the appointment of a legal guardian, who takes decisions as a substitute for the individual.

Deep-rooted 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.

Maina says areas of life that are compromised by the recognition of a person as legally incompetent are numerous. They include the right to participate in the electoral process, petitioning courts and participating in legal proceedings, managing property, and making a will and other inheritance related issues.