||First Published in Pambazuka
Accessing rights for persons with disabilities in Kenya is a major challenge, and is even more difficult for women with disabilities, as awareness on their human rights is low and slow, argues Monica Mbaru-Mwangi, a disability activist. This article links the personal story of a 10-year-old deaf girl, sexually abused by a neighbour, to concrete legislation and protocols that should, in theory, help her to attain justice.
Rose Mwikal is the mother of 10-year-old Mueni (not their real names), and has spent the past two years fighting for an elusive justice. On 4 April 2004, a well-known neighbour sexually abused Mueni while Rose was away attending to other family needs.
Since birth, Mueni has had a hearing impairment; a condition that has forced her out of school. Rose is a single parent who has tried in vain to have Mueni’s father take parental responsibility and assist in the burden of dealing with her daughter’s disability.
According to the Kenyan Children’s Act, parental responsibility towards a child is determined by the marital status of the child’s parents. Where the parents were married at the time of the child’s birth, or have subsequently married, the mother and the father have joint parental responsibility. Neither the mother nor the father have a superior right or claim against the other in the exercise of this responsibility .
However, in cases where the parents were not married at the time of the child’s birth and have subsequently not re-married, the mother has full responsibility whereas the father bears no responsibility at all . The father can acquire parental responsibility but this is optional and more importantly, it is optional to the father; there is nothing the mother nor the child can do to enforce the responsibility on him . The provision in the Children’s Act on parental responsibility is discriminatory, as it makes a child born out of wedlock disadvantaged in comparison to a child born within marriage.
Being alone and with no school nearby that will accept Mueni because of her disability, Rose normally leaves her at home. On the day of the incident, when Rose came back at around 2pm, she found Mueni crying in bed and upon further investigation she noticed her soiled clothes. Upon enquiry, Mueni took her mother’s hand and led her to her neighbour’s house and in sign language indicated to the mother what the neighbour had done. Rose rushed to the nearest police station, but was not issued with the necessary police medical forms because there were none. She was further told, by the reporting officer, that ‘such a case cannot be properly supported in court as the girl is deaf and disabled…she cannot be able to give evidence in court’.
With the help of the local priest, Rose eventually managed to take her daughter to a hospital where she got treatment. Eventually the matter was taken to court. The matter has been listed on several occasions for hearing, but each time has been adjourned, as no sign language interpreter has been available to assist in taking Mueni’s evidence. Rose is unable to provide this service as she is a prosecution witness.
According to the Kenyan Constitution:
“… in criminal cases … every person shall be informed in a language that he understands and in detail, of the nature of offences … shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial…” .
It is therefore a constitutional right to use the language that one understands. As Mueni is a prosecution witness, she has the right to have her case facilitated by the state.
Kenya, which also adheres to the UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities (Standard Rules) , passed the People With Disabilities Act (Disability Act or the Act) in 2003. This legislation gives rights, but does not set the necessary structure necessary for those rights to be realised. Similar challenges are faced in the drafting of the proposed human rights instrument on the rights of People with Disabilities (PWDs) at the international level, which is currently ongoing .
The Act mandates the Council for Persons with Disabilities  to create the structure and mechanisms for accessing the rights enshrined therein. The Council has been in operation for the past two years, but it is still in its formative stages. The Act does not address the specific rights of women with disabilities nor does it deal with gender based violence, which occurs at high rates against persons with disabilities.
Accessing rights for persons with disabilities in Kenya is a major challenge, and is even more difficult for women with disabilities, as awareness on their human rights is low and slow. Violations occur on a daily basis, as there is no government policy on women rights. Gender-based violence is very high and for women with disabilities, they suffer a double violation, as there are no structures in place to give them specific protection.
Women with disabilities have particular needs and they face many obstacles in their struggle for equality. Although both men and women with disabilities are subject to discrimination, women with disabilities are doubly disadvantaged by discrimination based on gender and their disability status . Therefore the case of Mueni is a reflection of how the Kenyan criminal justice system and society at large view the rights of women with disabilities, and is a demonstration of the failure to address serious violations of sexual violence . Like any citizen whose rights are enshrined in the Constitution, Mueni should be given not only protection of the law, but access to a sign-language interpreter, doctor, police officer and a judiciary who are aware of her specific needs in helping her attain justice.
There is wide acceptance that the human rights of people with disabilities must be protected and promoted through general, as well as specially designed laws, policies and programmes . National governments can make this possible through their legislation. In Kenya, this will be possible through the guidance of international standards to inform national legislation.
Of significant importance is the Protocol on the Rights of Women in Africa. On November 25, 2005, the Protocol on the Rights of Women in Africa (the protocol)  entered into force, after being ratified by 15 African governments . Two years earlier, in July of 2003, the African Union - the regional body that is charged with promoting unity and solidarity among its 53 member nations - adopted this landmark treaty to supplement the regional human rights charter, the African Charter on Human and Peoples’ Rights (the African Charter). The protocol provides broad protection for women’s human rights, including their sexual and reproductive rights .
CEDAW does not contain any provisions that directly relate to discrimination or violence against women with disabilities. However, in its General Recommendation 18, the CEDAW committee recognises that women with disabilities experience particular forms of discrimination and asks state parties to provide information on them and take special measures to ensure disabled women’s access to legal protection . The CEDAW Committee acknowledges that the status of women with disabilities makes them vulnerable to violence, especially sexual violence.
Similarly, the Convention on the Rights of the Child (CRC)  does not give specific protection to children with disabilities, but does prohibit discrimination against children on the basis of disability and also recognises their special needs that require special, appropriate assistance and care . These provisions should be at the benefit of Mueni and all other children with disabilities. The CRC, though gender neutral, requires states to:
“…protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation .”
Kenya has ratified CEDAW, and as we wait for the ratification of the Protocol on the Rights of Women, Mueni can only rely on national legislation to give her protection against her abuser. The Persons with Disabilities Act does give access to these rights, but the mechanisms and structures have not yet been put in place to ensure that these guarantees are enforced. The Kenya National Commission for Human Rights (KNCHR),  has begun to take an active interest in disability issues. This is important since the institution helps in providing a bridge between international human rights law and domestic debates. With the Council for Persons with Disabilities in place, it is hoped that the enforcement of rights for persons with disabilities, and especially women’s rights, can be realised.
Monica Mbaru-Mwangi is the Chairperson, Kenya Union of the Blind, and National Treasurer, United Disabled Persons of Kenya.
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