In Kenya, the Constitution and the legal system ensure that the rights of persons with disabilities are protected and respected.
This article explores the legal framework surrounding the treatment of individuals with disabilities within the criminal justice system and emphasizes the importance of reasonable accommodation.
Defining Disability in the Constitution
- Broad Definition: The Kenyan Constitution recognizes disability as encompassing “any physical, sensory, mental, psychological, or other impairment, condition, or illness that has, or is perceived by significant sectors of the community to have, a substantial or long-term effect on an individual’s ability to carry out ordinary day-to-day activities art. 260, CoK. This inclusive definition ensures that various forms of disabilities are acknowledged and addressed.
Principle of Reasonable Accommodation
- Constitutional Mandate: When the criminal justice system interacts with persons with disabilities, the court is legally bound by the principle of reasonable accommodation. This principle is enshrined in multiple articles of the Constitution, including arts. 7(3)(b), 21(3), 27(4), 54(1), CoK 2010.
- Ensuring Inclusivity: Reasonable accommodation signifies making necessary and appropriate adjustments to facilitate the full participation and access of individuals with disabilities. This may involve physical accommodations, changes to processes, or the provision of additional support to ensure that persons with disabilities can actively engage in legal proceedings.
- Holding Facilities: One crucial aspect of reasonable accommodation is considering the conditions of holding facilities. The court should ensure that, taking into account the accused person’s disability, their committal to the facilities does not lead to inhuman or degrading treatment. This is crucial to protect the dignity and rights of individuals with disabilities in the criminal justice system.
By adhering to the principle of reasonable accommodation, the legal system strives to create an inclusive and accessible environment for persons with disabilities. This approach recognizes the diversity of disabilities and aims to provide equal opportunities and fair treatment within the justice system. It is a testament to Kenya’s commitment to upholding the rights and dignity of all its citizens, regardless of their abilities.
