Article 27(4) of our Constitution stands as the bedrock, anchoring the principle of equality and non- discrimination, including disability-based discrimination. Additionally, Article 54 of the Constitution (‘Persons with disabilities’) reinforces our national values of dignity and inclusivity.
To crown it all, Article 2(6) extends the embrace of international law ratified by Kenya, including the Convention on the Rights of Persons with Disabilities (CRPD), into the very fabric of our nation’s legal landscape. Article 12 of this Convention unequivocally acknowledges the legal capacity of persons with disabilities.
Legal capacity, simply put, is the ability to possess rights and the power to exercise them.
Historically, disabilities were wrongly perceived as obstacles preventing the full exercise of rights, for instance, in marriage, or disposal of property through a will. It is, therefore disheartening that legal provisions that rob persons with disability (generally mental disability) of their rightful legal capacity to persist in Kenya.
The power of words
A search through Kenya’s Acts of Parliament for the law on what, for the moment, we’ll call ‘mental disability’ reveals a mess: in language, thinking and in law making processes.
A lingering issue is the old-fashioned and ignorant language usage. An example is the reluctance to update archaic provisions in the Kenya Evidence Act and the Limitation of Actions Act, which still employ the derogatory term “lunatic” when referring to persons with mental disorders, perpetuating the myth of their incapacity.
So is the word idiot – used, as well as “imbecile”, in the Penal Code, essentially making it a crime to have consensual sex with such a person. In other words, they cannot, legally, consent. Also in the Registration of Documents Act – preventing such a person from registering a document.
Even the Constitution does it – using the phrase “of unsound mind” and preventing such a person from registering as a voter. It has a derogatory tinge (contrary to Article 54(1) (a)) and again robs the individual of legal capacity. The phrase is used in a remarkable number of Acts, with the outdated conception that a person is either ‘mad’ or not ‘mad’.
Yet the scope of mental disorders, as outlined in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), encompasses a wide range of conditions, some of which do not impact all of an individual’s decision-making abilities. For example, binge-eating disorder or certain sexual dysfunctions, though recognised by the DSM-5, do not affect one’s professional or other decision making competence. Nor may bi-polar disease or schizophrenia.
Changing terminology does cause some problems. ‘Mental disorder’ was probably considered an improvement. While less offensive, it is still problematic. Legislation such as the Engineering Technology Act, which denies registration to individuals with a ‘mental disorder’, without distinguishing between conditions that may or may not affect their work, reflects a lack of understanding of the diversity of disabilities.
The non-recognition of the autonomy of persons with disability extends to the absurd provision in the Kenya Railways Corporation Act, allowing an authorised employee to deny the right to travel by train to anyone ‘appearing to be suffering from a mental disorder”.
Although Kenya Railways has the right to deny service to disruptive individuals, such as the intoxicated, as prohibited by the Act, the exclusion of persons with mental disorders from train travel is an instance of statutory-sanctioned discrimination. Consider why the Act does not prohibit a parent with a disruptive child from travelling, but makes a point of discriminating against persons with mental disorders.
Other unconstitutional provisions persist in the Kenya Defence Forces Act, allowing persons who are “insane” within the criminal justice system to be held at the president’s pleasure, despite court judgments declaring similar provisions in the Criminal Procedure Code unconstitutional.
Some confusion may arise from the use of the word ‘disability’. The concept did not enter Kenyan law perhaps until the Persons with Disability Act in 2003. Prior to that, the phrase under a disability was used to mean lacking legal capacity – referring to children and those with mental illness. The word disability, in this sense, endures in a few pieces of legislation.
Kenyan legislation still employs the use of the term ‘mental disability’ instead of ‘psychosocial and intellectual disabilities’. This phrase is relatively recent and used in the convention on the rights of persons with disabilities to mean “those 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”. Its use in legislation is urged by the Office of the High Commissioner for Human Rights. The point is that it is not just condition but also the attitudes and circumstances of society that give rise to disability.
It is actually used once in the amended Mental Health Act but the Act then reverts to “mental illness”.
Mental Health Act
This Act is a significant effort to introduce the CRPD into Kenyan law.
The Act used to provide for guardianship of persons with mental disorders, by court order, if the person could not manage their property but could manage themselves, and were not dangerous to themselves or others, or likely to act “in a manner offensive to public decency”.
The court order would not involve the detention or custody of the person but would appoint a manager for their property. There was also provision for a court order of “guardianship of any person suffering from mental disorder by any near relative or by any other suitable person”.
The powers of a guardian were somewhat unclear.
The convention is clear that every person with disability has the right to legal capacity, independent of their mental capacity. When it does happen that individuals with some disabilities have difficulty making some decisions, legislation should not remove their right, but instead provide for mechanisms for them to get the requisite support to exercise the right.
Support, not substitution is the message. Article 12(3) of the Convention further recommends the use of safeguards for people with disabilities who require support to make legally binding decisions. These safeguards should ensure that they get the support they need, and that such relationships are independently reviewed periodically, by an independent tribunal.
The Mental Health Act was significantly amended in 2022. It now includes the concept of a supporter who is appointed by a person with mental illness. Unfortunately the Act soon slips back into old thinking. Admittedly the person is supposed to have the choice of supporter (but it may be done by the person’s representative, introducing another form of substituted decision making). The Act soon talks of the supporter making decisions on their behalf, but it also says the supporter must “make continuous efforts to have the person with mental illness express their own will and preference”.
The concept or word ‘guardian’ in relation to persons with disabilities is now seemingly erased in this and other Acts, and solely used in relation to minors. However, the word lingers in some Acts, in relation to persons with disabilities. The Data Protection Act confers the power to exercise rights on behalf of persons with mental and “other disabilities” on guardians.
The HIV and AIDS Prevention and Control Act empowers medical personnel to test those who appear incapable of giving consent, sometimes even without guardians’ consent. These provisions are difficult to understand and apply, as there is no due process for appointment of guardians, other than for children.
Charting the course
Kenya has a long way to go to fulfil entirely its obligations under Article 12 of the CRPD.
For now, it is imperative to focus on the need for comprehensive legislative reform in Kenya to fully recognise the legal capacity of persons with disabilities – not just changing one and ignoring others. It is time!
The author is a fellow in the East African Emerging Public Interest Advocates Programme and presently is engaged with the Katiba Institute
