The Implementation of Article 12 of the Convention on the Rights of People with Disabilities in Kenya

Abstract

Equality and non-discrimination before the law are fundamental human rights principles enshrined in both international and regional human rights instruments. However, earlier human rights instruments did not expressly protect persons with disabilities from discrimination and, therefore, they were regarded as objects of charity, rather than subjects of human rights. Through the years, the law has developed to provide better protection for persons with disabilities, culminating in the ratification of the Convention on the Rights of People with Disabilities (CRPD). Article 12 of the CRPD provides for the right to equal recognition before the law for persons with disabilities which entails the right to legal capacity. This provision reflects a long established and non-derogable human rights principle also enshrined, for example, in article 16, as read together with article 4 (2), of the International Covenant on Civil and Political Rights (ICCPR). Despite the significant development of legal protection, the implementation of the right to legal capacity for persons with disabilities leaves a lot to be desired. Many jurisdictions conflate legal capacity with mental capacity, the latter of which is a controversial concept. Persons with disabilities are denied the right to make personal decisions and to participate in judicial proceedings, on the basis that they lack the requisite mental capacity. Such denial of the right to make decisions constitutes a violation of the long established and non-derogable right to legal capacity enshrined in article 12 of the CRPD. The paper discusses the implementation of article 12 of the CRPD in Kenya. It examines the conflation of legal capacity and mental capacity for persons with disabilities and interrogates the approaches employed in the determination of mental capacity. Furthermore, the paper examines different Acts of Parliament in Kenya and discusses their level of compliance with article 12 of the CRPD.