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.
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.
The Marriage Bill (now Act) 2014 has elicited different reactions from Kenyans. Some mostly women, have argued that the law will allow men to engage in polygamous marriages. Some have hailed the law as consolidating the different types of marriages into one piece of legislation. However, the people with intellectual and psychosocial disabilities have completely been left out of this debate. The law clearly discriminates and expressly denies people with mental disorders from exercising their right to marry. Section 11(2)(b) of the Marriage Act 2014 provides:-
Consent is not freely given where the party who purports to give it is suffering from any mental disorder or mental disability whether permanent or temporary…
The Act further provides in section 73 that if one suffers from ‘recurrent bouts of insanity’ then the partner is allowed to have the marriage annulled. This essay seeks to argue that the Marriage Act 2014 not only violates Kenya’s obligation under international law but also violates the Constitution of Kenya 2010 Article 27(4), which proscribes discrimination based on disability.
Realisation of inclusive education for persons with disabilities at rural universities in South AfricaPosted: 10 September, 2013
Author: Adrian Jjuuko
Executive Director of Human Rights Awareness and Promotion Forum (HRAPF); LLM (Human Rights and Democratisation in Africa) candidate, Centre for Human Rights, University of Pretoria, South Africa
South Africa’s efforts to implement inclusive education started before the Convention on the Rights of Persons with Disabilities (CRPD) – to which South Africa is a state party- came into force. This was owing to its legacy of apartheid, a policy of exclusion. It created different universities for both the white and black communities. White universities were comprehensive universities that prepared students for professional careers, while black or rural universities were meant to produce semi-skilled menial workers.
With the fall of apartheid, the new regime adopted a policy of inclusive education, including higher education. Higher education was recognised as a right in terms of Article 26 of the 1996 Constitution. A single system of higher education was created and White Paper 6 of 2001 was adopted as the benchmark of inclusive education at all levels. It goes beyond disabilities, race, gender and other grounds of discrimination. It is an obligation for every educational institution to implement inclusive education, and physical accessibility for persons with disabilities (PWDs) is mandatory.
However, there is a need to give special focus to rural universities on account of their history if South Africa is to fulfil its obligations under Article 24 of the CRPD. This article seeks to highlight the implementation of inclusive education for PWDs at one of the rural universities – the University of Venda.