Sentencing ‘at the president’s pleasure’ and what it means to persons with mental disabilities in KenyaPosted: 17 September, 2014
On 8 May 2013, the High Court of Kenya in Case Number 14 of 2010 passes a sentence on the accused who had pleaded guilty on a murder charge. Nawya Mawjoya, a person with mental disability, was sentenced to detention ‘at the president’s pleasure’ under section 167(1) of the Criminal Procedure Code (CPC) instead of being given a probationary sentence. The Court relied on the probation officer’s recommendation that he be institutionalised as the family believes he was bewitched and will be subjected to rituals. Such cases are common in Kenya for two reasons: lack of awareness by the criminal justice system on mental disability and cultural perception associated with mental disabilities. Thus the criminal justice system operates as a conduit to institutionalise persons with mental disabilities.
Kenya is a signatory of the Convention on the Rights of Persons with Disabilities (CRPD). Article 14 (1) (b) of the CRPD provides for the rights of persons with disabilities not to be deprived of their liberty on the basis of their disability. Article 19 further provides that persons with disability have a right to live in the community on an equal basis with others. Article 50 of the Constitution of Kenya provides for the right to a fair trial for all persons. Article 29 further supports the rights of person not to be arbitrarily denied their freedom without just cause. Article 54 of the Constitution states the rights of persons with disabilities to be treated with dignity and respect.
International Day of the Victims of Enforced Disappearance: 30 August 2014
To cite magic here wrongly alludes to fantasy and enchantment. The reality is people disappear without warning and information in Eritrea. There is no make-believe; from one day to the next, a person can vanish into thin air.
The International Convention for the Protection of All Persons from Enforced Disappearance (2006) defines enforced disappearances as:
“… the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State”.
Enforced disappearances are followed by the State’s refusal to acknowledge the deprivation of liberty or the concealment of the fate or whereabouts of disappeared persons. Enforced disappearances, which constitute a crime against humanity, in effect place the ‘disappeared’ outside the protection of the law.
The globalisation of human rights and democratisation has gained significant momentum in the 21st Century. It has proved to be the linchpin of progressive and sustainable socio-economic and political development for other continental organisations such as European Union and Inter-American Organisation. It is unfortunate that the African Union (AU) has done little or nothing in the actualisation and application of these universal principles in its member states. There are plethora legal frameworks geared toward promoting and protecting human rights and democratisation in Africa. However, they have translated meaningless because their practical applications are neglected.
The establishment of the AU inter alia is anchored on the promotion and protection of human rights and democratisation in Africa. This is as a result of the inhuman and undemocratic experiences of the continent under the so-called colonial masters’ bad governance. In an attempt to correct the human rights catastrophes perpetrated by colonial institutions, the AU was created. Thus, the sole intent of the drafters of the Organisation’s legal framework and indeed the yearning and aspiration of the people of the continent was to create a continental institution to promote and protect human rights and democratisation which are essential for the development of Africa.
However, legally construing the AU Charter, it creates no legal binding obligation on state parties for promotion and protection of human rights and democratisation in Africa. Although, it requires member states to have due regard for human rights and democratisation as enshrined under international law; and also promulgated plethora continental laws aimed at mandating state parties to promote and protect these concepts.
Author: Tejan Deen
Barrister, Republic of Sierra Leone; LLM Candidate at the Centre for Human Rights, University of Pretoria, South Africa
It is now eighteen years since the National Policy on the Care for Persons with Disabilities was adopted in Botswana and to date people with disabilities have only this policy that speaks to their issues. Children with disabilities, who are among the most vulnerable groups of children in Botswana, are still being handled in a ‘medicalised’ manner. These children are segregated especially in the educational system which lacks any form of inclusive education. They have an opportunity to gain formal education only in special schools, most of which are owned by non-governmental organisations such as Cheshire Foundation and Camphill Community Trust. This is completely contrary to the right to inclusive education as guaranteed in international human rights instruments particularly the Convention on the Rights of Persons with Disabilities (CRPD). Inclusive education is a method of education that gives equal opportunity to children with disabilities by guaranteeing their rights to education and creating an amiable environment to realise that right on an equally basis with other children.
Botswana currently has a Draft Reviewed National Policy on the Rights of Persons with Disabilities which has remained a draft since it was drafted in 2010. There is also the Inclusive Education Policy of 2011 which has not had any positive impact on the lives of these children as they are still completely ‘out of the picture’ of mainstream schools, and very little provisional mechanisms have been instituted to address their needs. Camphill Community Trust, for example, is located out of the city of Gaborone, which is an indication of how children with disabilities are treated in Botswana: Not fit for mainstream schools. The policy currently in force is the 1996 National Policy on Care for People with Disabilities. This is a policy with a purely medical approach that focuses on the ‘disability’ as in need of cure and rehabilitation instead of providing the necessary conditions in the society to enable children with disabilities to realise their full potentials. The word “care” implies people who should be taken care of; a social encumbrance which should be remedied through social welfare initiatives and goodwill. This situation is made worse by the fact that Botswana does not have a National Human Rights Institution which could have championed the course of the rights of these children.
International Youth Day: 12 August 2014
Blurred lines come to mind when defining the word “youth” in Eritrea.
There are multiple global ranges afforded to the term “youth”; the United Nations (UN) declares a range of 15 to 24 years old, and the African Youth Charter settles for 15 to 35 years of age. One common definition is to observe youth as a transitional phase from dependent childhood to independent adulthood, a time when parental guidance and experience are equipping children with the tools to construct an independent adult self.
When interviewing young people who left Eritrea, it troubles me that I cannot capture that moment, that space reserved for such transition. I asked 18 year old Hermon* when she first recalled hearing about the compulsory national service introduced in 1995, which systematically recruits people from the ages of 18 to serve their country. Her response was:
I knew what national service was when I was eight years old because there was a round-up [known as giffa] and they took my mother during the night.
By the time Hermon was 12 years old, her mother came to her at night and asked if she would be prepared to “take a long and difficult trip”. She agreed, not knowing that what lay ahead was three days and nights of travel to arrive in Khartoum, Sudan and live for four-years as a member of a nameless, faceless and poor refugee mob. Hermon did not comprehend the risk she and her mother took: the risk of being detained for desertion or the risk of becoming victims of the ‘shoot to kill’ policy at the borders. At 12 years, she could not have possibly understood but saw the fear in her mother’s eyes, who arranged this journey for her daughter so she would never have to go to Sawa or any other military training camp.
Day in Support of Victims of Torture: 26 June 2014
It is called the “helicopter”. You are stripped, hands and feet bound and tied to a tree, hanging or raised above the ground so you are forced to stand on your toes for hours on end. With hands still bound to the tree you are then forced to the ground to endure up to 24 hours of the unbearably hot sun and cold night, desperately willing your punisher to have mercy. If you are lucky the punisher will allow you a short break for meals or to use the toilet.
What human being deserves this?
Torture is defined by the United Nations as: “Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person…”
[The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, 1984]
We are told there is never a justification for inflicting torture, degrading treatment or punishment on a human being. The Eritrean government, conveniently not party to this Convention, disregards this absolute prohibition – and as a result torture, both physical and psychological, is widespread in Eritrea.
World Refugee Day – 20 June 2014
The number is 313 375, more specifically, as of mid-2013 the number we gathered from the United Nations High Commissioner for Refugees (UNHCR) was 313 375. That is the number of people from a population of 5 million who have at great risk to their lives, left their country to become refugees and asylum seekers in unknown lands. Since independence Eritrea has lost 6% of its population and is currently notoriously known as the tenth highest refugee producing nation in the world (UNHCR). Why are Eritreans fleeing their homeland by the thousands every month? According to the latest figures, 4 000 flee Eritrea every month.
Firstly, let it be asserted from the onset that Eritrea is not at war, but, its current default mode of perpetual war preparedness has proven as destabilising and terrifying to the country as an actual state of war. Having bravely “liberated” itself from Ethiopia in 1991, Eritrea found itself in a bitter border dispute with Ethiopia only 7 years later with a war lasting from 1998 to 2000.This dispute is a historical turning point for Eritrea as it created the platform from which to justify the sustained creation of a militarised society. In 1995 a government decree applied national service which was both compulsory for anyone from the age of 18 to 50 years. Many people were forcibly rounded-up from the streets, from their homes and torn away from their children to report for military service.