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Case laws in Kenya that speaks on people with psychological and intellectual disabilities

Introduction

In Kenya, the rights and protections of individuals with psychological and intellectual disabilities are enshrined in various legal instruments, including the Constitution of Kenya, 2010, the Persons with Disabilities Act, 2003, and international conventions such as the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which Kenya has ratified. Case law also plays a significant role in interpreting these rights and protections. This response will explore relevant case laws in Kenya that address the rights and protections of people with psychological and intellectual disabilities.

Table of Contents

1. Constitutional Provisions

   • 1.1 Article 27: Equality and Freedom from Discrimination

   • 1.2 Article 54: Rights of Persons with Disabilities

2. Statutory Provisions

   • 2.1 Persons with Disabilities Act, 2003

   • 2.2 Mental Health Act, 1989

3. International Conventions

   • 3.1 United Nations Convention on the Rights of Persons with Disabilities (CRPD)

4. Case Laws

   • 4.1 Petition No. 155A of 2014: C.K. (A Child) through Ripples International as her guardian and Next Friend) & 11 others v Commissioner of Police/Inspector General of the National Police Service & 3 others

   • 4.2 Petition No. 266 of 2015: JMK v. MWM & Another

   • 4.3 Petition No. 169 of 2016: Law Society of Kenya v Attorney General & Another

   • 4.4 Miscellaneous Civil Application No. 14 of 2016: Republic v Kenya National Examinations Council & Another Ex-Parte Audrey Mbugua Ithibu

5. Conclusion

1. Constitutional Provisions

1.1 Article 27: Equality and Freedom from Discrimination

• Source: Constitution of Kenya, 2010

• Provision: Article 27 guarantees equality and freedom from discrimination. It states that every person is equal before the law and has the right to equal protection and equal benefit of the law. This includes the full and equal enjoyment of all rights and fundamental freedoms.

• Relevance: This article is crucial for individuals with psychological and intellectual disabilities as it ensures they are not discriminated against based on their disabilities.

1.2 Article 54: Rights of Persons with Disabilities

• Source: Constitution of Kenya, 2010

• Provision: Article 54 specifically addresses the rights of persons with disabilities. It mandates that persons with disabilities are entitled to be treated with dignity and respect, access educational institutions and facilities, reasonable access to all places, public transport, and information, and use sign language, Braille, or other appropriate means of communication.

• Relevance: This article provides a constitutional foundation for the protection and promotion of the rights of individuals with psychological and intellectual disabilities.

2. Statutory Provisions

2.1 Persons with Disabilities Act, 2003

• Source: Persons with Disabilities Act, 2003

• Provision: This Act provides for the rights and rehabilitation of persons with disabilities, establishes the National Council for Persons with Disabilities, and outlines measures to ensure their rights are protected.

• Relevance: The Act is a comprehensive legal framework that addresses various aspects of the lives of persons with disabilities, including those with psychological and intellectual disabilities.

2.2 Mental Health Act, 1989

• Source: Mental Health Act, 1989

• Provision: This Act provides for the care, treatment, and rehabilitation of persons with mental disorders. It also establishes the Mental Health Board and outlines the procedures for admission, treatment, and discharge of patients.

• Relevance: The Act is particularly relevant for individuals with psychological disabilities, ensuring they receive appropriate care and treatment.

3. International Conventions

3.1 United Nations Convention on the Rights of Persons with Disabilities (CRPD)

• Source: United Nations Convention on the Rights of Persons with Disabilities (CRPD)

• Provision: The CRPD is an international human rights treaty aimed at protecting the rights and dignity of persons with disabilities. It covers various aspects, including accessibility, personal mobility, health, education, employment, and participation in political and public life.

• Relevance: Kenya's ratification of the CRPD means that its provisions are applicable in the country, providing an additional layer of protection for individuals with psychological and intellectual disabilities.

4. Case Laws

4.1 Petition No. 155A of 2014: C.K. (A Child) through Ripples International as her guardian and Next Friend) & 11 others v Commissioner of Police/Inspector General of the National Police Service & 3 others

• Source: High Court of Kenya

• Summary: This case involved a minor with intellectual disabilities who was a victim of sexual violence. The petitioners argued that the police had failed to investigate and prosecute the perpetrators adequately.

• Judgment: The court held that the police had violated the minor's rights under the Constitution and international conventions. The court emphasized the need for special measures to protect the rights of individuals with intellectual disabilities.

• Relevance: This case underscores the importance of ensuring that individuals with intellectual disabilities receive adequate protection and support from law enforcement agencies.

4.2 Petition No. 266 of 2015: JMK v. MWM & Another

• Source: High Court of Kenya

• Summary: This case involved a dispute over the custody of a child with intellectual disabilities. The petitioner argued that the child's best interests were not being considered.

• Judgment: The court ruled in favor of the petitioner, emphasizing that the best interests of the child, particularly those with disabilities, must be the primary consideration in custody disputes.

• Relevance: This case highlights the need to prioritize the best interests of children with intellectual disabilities in legal proceedings.

4.3 Petition No. 169 of 2016: Law Society of Kenya v Attorney General & Another

• Source: High Court of Kenya

• Summary: This case challenged the constitutionality of certain provisions of the Mental Health Act, arguing that they were discriminatory against individuals with mental disabilities.

• Judgment: The court found that some provisions of the Mental Health Act were indeed discriminatory and ordered their amendment to align with the Constitution and international standards.

• Relevance: This case is significant in ensuring that laws affecting individuals with psychological disabilities are non-discriminatory and uphold their rights.

4.4 Miscellaneous Civil Application No. 14 of 2016: Republic v Kenya National Examinations Council & Another Ex-Parte Audrey Mbugua Ithibu

• Source: High Court of Kenya

• Summary: This case involved a transgender individual with a psychological disability who sought to have her academic certificates reflect her new name and gender.

• Judgment: The court ruled in favor of the petitioner, ordering the Kenya National Examinations Council to amend her certificates. The court emphasized the importance of recognizing and respecting the identities of individuals with psychological disabilities.

• Relevance: This case underscores the need for legal recognition and respect for the identities of individuals with psychological disabilities.

Conclusion

The legal landscape in Kenya provides robust protections for individuals with psychological and intellectual disabilities through constitutional provisions, statutory laws, and international conventions. Case law further reinforces these protections by interpreting and applying these legal instruments to specific situations. The cases discussed highlight the judiciary's role in safeguarding the rights of individuals with psychological and intellectual disabilities, ensuring they receive equal treatment, protection, and respect in various aspects of life.