In recent years, an emphasis on recognizing and protecting the rights of People with Intellectual Disabilities(PWIDs) has been added in the Human rights sector. Previously, most of these PWIDs have been viewed as victims in the justice system, rather than participants due to their diminished legal capacity and the perception prevailing amongst most members of society that these persons are lesser human beings. This led to decision making on issues affecting them being relegated to other persons(substituted decision making) as people with intellectual disabilities were not viewed as competent to make their own decisions.
This emphasis has been achieved progressively over the years, through the implementation of various international, regional and national legal instruments protecting the rights of PWIDs. One of this is the United Nations Convention on the Rights of People with Disabilities, which provides for that those with intellectual disabilities, have the right to make their own decisions and enjoy legal capacity. It emphasizes the importance of supported decision-making and providing appropriate accommodations to ensure individuals with disabilities can exercise their legal capacity effectively.
A large emphasis has been put on the shift from substituted to supported decision making, which aims to empower individuals to make their own choices, while ensuring their rights and best interests are protected. This could be achieved via communication aids, providing information in accessible formats, and assistance from trusted persons e.g family members and advocates.
In Kenya, this shift has mostly been seen after the coming into force of the constitution of Kenya 2010, and ratification of the United Nations Convention on Rights of People with Disabilities, which have made a large impact in advancing the rights of PWIDs in the legal context. The Mental Health Act of 1998 however, does not fully address the concern that PWIDs have reduced legal capacity, instead mainly focusing on substituted decision making, which has led to drafting of the mental health bill, which if passed in parliament shall replace the 1998 act.
I shall devolve into the specific provisions of the law providing approaches to participation of PWIDs in decision making and the legal system.
- THE CONSTITUTION OF KENYA 2010
The Constitution of Kenya, particularly Article 54, recognizes the rights of persons with disabilities, including intellectual disabilities. It guarantees their right to dignity, right to own property access to justice, and the protection of the law. The Constitution establishes the principle of equality and non-discrimination, ensuring that individuals with intellectual disabilities are entitled to equal protection and benefit of the law.
- MENTAL HEALTH ACT 1998
It recognizes the rights of individuals with intellectual disabilities and provides for the protection of their dignity, autonomy, and personal integrity. The Act promotes the provision of appropriate care and support, and it outlines the procedures for determining mental capacity and making decisions in the best interest of persons with disabilities.
The main focus of this act, however, lies on substituted decision making via appointment of a guardian or representative. Section 26 provides that a court may grant orders for the management of estates of PWIDs and guardianship of these persons either by a near relative or other suitable person and in absence of these, by a public trustee. This shows that the law recognizes that PWIDs have the right to own property. Such managers over their estate have the power to execute any instruments relating to sale, mortgage or any other disposition over the estate, with the effect of such dispositions being the same as if the disposition had been executed by the person suffering from mental disorder while he was not suffering from it. However, where a person with mental disability is capable of managing himself, and is not a danger to himself or society, the court may make orders for management of their estate, but not for their guardianship.
THE PERSONS WITH DISABILITIES ACT 2003.
This legislation provides for the rights and inclusion of persons with disabilities, including intellectual disabilities. It emphasizes on the need for reasonable accommodation to ensure equal participation and access to services, facilities and opportunities. It also recognises the legal capacity of persons with disabilities, including their right to own property, enter into contracts, and exercise their rights and freedoms on an equal basis with others.
NATIONAL POLICY ON DISABILITY, 2006.
The policy aims to ensure the full participation and inclusion of persons with disabilities in all aspects of life. It recognizes the rights of persons with intellectual disabilities and promotes their legal capacity and decision-making autonomy, it also emphasizes on provision of support services, reasonable accommodations, and the implementation of inclusive education and employment opportunities.
It is also important to note that there is also a mental health bill currently under consideration in parliament, meant to replace the 1998 act.
*This writing is meant for general information only and should not be relied upon without seeking specific legal advice. In the event of queries on this article feel free to contact the undersigned on the contacts provided hereunder.
Dennis Juma.
0703240153 – Dennis Juma (Partner)
0723403673 – Moses Kibathi (Partner)