Constitution of Kenya – On-going Processes at KSMH

The people with intellectual and mental disabilities are different from those with other forms of disabilities. They are people who on a daily basis for life fully depend on supports to exercise their rights including the very basic of rights. The understanding of a person in the new constitution is one that is productive, autonomous/independent and with significant contribution to the development of the country. This does not apply to persons with intellectual and mental disabilities. They are persons in need of significant supports on a daily basis for life. This has a serious consequence on the rights of women who bear children with intellectual and mental disabilities. This large population of women who bear children with mental disabilities are expected to be different from the ordinary mothers.

The new constitution under the bill of rights has provided for the elderly but not persons in need of intensive support on a daily basis for life due to mental disabilities. While the elderly in most cases are retirees with significant amounts of property, persons with intellectual and mental disabilities are hardly productive even in adulthood despite the need for high level of supports throughout their lives.

The constitution should recognize this category and guarantee the right to supports from the Government. This kind of support must be distinguished from guardianship. While the parents, family and community have their ordinary role in raising children, extra support needs are the responsibility of the Government. This is not provided for in the constitution.

The constitution has in many clauses provided for institutionalization of persons with disabilities and the use of substituted decision making. This is highly subjected to persons with mental disabilities and is illegal and against the provisions of the UN Convention on the Rights of Persons with Disabilities.

Finally the Gender Commission as established in the constitution lacks the capacity to deal with technical aspects required to ensure access to supports in the exercise of personhood and legal capacity by persons with all disabilities.

The constitution should be able to recognize this large population of 3.6 million Kenyans, and entrench clauses that guarantee life-long supports needed to guarantee access to human rights and fundamental freedoms.