Addressing the COVID-19 Pandemic in Kenya: Human Rights Lessons from the HIV/AIDS Epidemic

Global epidemics and their impact

The world has been plagued by a number of epidemics including the Spanish flu, HIV/AIDS, Smallpox, SARs and Ebola. These pandemics have had a devastating impact on the globe both in the number of lives claimed and the ravages wrought to the economies of the world.

The 1918 Spanish flu for example is estimated to have claimed at least 50 million lives with HIV/AIDs having claimed about 32 million globally. The current epidemic had topped about 270, 000 deaths at the time of writing this article. The economies of the world are threatened with collapse with China’s economy shrinking for the first time in 28 years.

Kenya and the COVID-19 pandemic

Locally, even with minimal loss of lives compared to the global statistics, the epidemic has had a devastating effect on our Kenyan economy with Kenya’s GDP expected to contract significantly. To address the economic impact on its economy, Kenya has so far sought from IMF and has been advanced by the institution Kshs. 79.3 billion.

Lessons from previous epidemics

The impact of the COVID-19 epidemic notwithstanding a number of lessons can be drawn from previous epidemics. Lessons on international cooperation and social distancing have been learned as effective measures to slow pandemics. International cooperation between the Soviet Union and the United States during the smallpox pandemic for example was hailed for the eradication of the disease. Previous pandemics may also play a key role in projecting the number of deaths and effect on economies during this epidemic.

Human rights based approaches

As we grapple with the epidemic and learn lessons from past epidemics, the past epidemics also have revealed that it is significant for states to adopt human rights based approaches to effectively combat epidemics.

Lessons from discrimination, stigmatization and criminalization of a pandemic

An investigation of how governments and societies responded to the AIDS epidemic at the initial stages of the pandemic reveal that many people were discriminated and stigmatized on the basis of their serostatus. Those who contracted the disease were mostly shunned by the society and were reprimanded for engaging in risky behaviour. The criminalisation of homosexual conduct and commercial sex work in most laws has been attributed to the restricted access to medical treatment for high risk populations.

For the COVID-19 pandemic, upon the declaration of the curfew in Kenya the police enforced the orders in the most un-proportionate and brutal manner. The brutality by the police was a clear demonstration of criminalization of the COVID-19 pandemic rather than treating it as a health concern.

In fact in the case challenging the curfew order it was argued by LSK and Kituo Cha Sheria that it was erroneous for the state to issue the curfew order under the Public Order Act which is a statute that mainly governs criminal conduct. The COVID-19 being a health emergency then the government should have issued the order under the Public Health Act.

Though the court did not quash the curfew order on the basis of the precautionary principle as a protective measure of the risk of the disease, the court recognised that for the Curfew Order to achieve its objectives and to be embraced by the public it should not be seen as a tool of force but something that aims to protect the health of the people.

The stigmatization of the COVID-19 pandemic in Kenya has been fueled by the forced quarantine, squalid conditions within the quarantine facilities and the requirement by individuals to pay for the quarantine fees. Most of the people who have been sent to the quarantine facilities have felt to be disproportionately targeted.

There is further no doubt that the use of quarantine measure to control the spread of COVID-19 has not been embraced by most Kenyans who view it as punishment. While the quarantine measure may be well intentioned it is obviously clear that the problem is that it is not people driven and its execution has been mismanaged.

The AIDS pandemic taught us that an effective control of the pandemic should recognize the presence of the disease and high risk persons without judgment. The government should then initiate all inclusive, community led campaigns to educate the citizenry to achieve de-stigmatization and tolerance in the society.

The government should also adopt initiatives aimed at curbing spread that are lawful, participatory and that apply uniformly. The International Covenant on Civil and Political Rights (ICCPR) dedicated to various rights requires that restrictions on the rights should be for reasons of public health or national emergency and must be lawful, necessary and proportionate. Restrictions such as forced quarantine must be strictly necessary, apply uniformly and recognizing human dignity.

The South African AIDS pandemic experience in de-criminalizing consensual sex has taught us that stigmatization and discrimination is reduced and in turn encourages access to adequate prevention and medical treatment. South Africa with its laws that abhor discrimination on the basis of sexual orientation remains a perfect example of governments that have overcome the barriers of HIV/AIDS prevention, treatment and care efforts.

There is no doubt then that from the South African HIV/AIDS experience, Kenya can take measures aimed at decriminalization and de-stigmatisation of the COVID pandemic to enhance prevention and treatment. Kenya can further enhance recognition, support and put in place targeted interventions for high risk populations like those living in slums and prisons as a critical measure in curbing the spread of COVID-19.

Conclusion

Finally, the WHO Director-General Tedros Adhanom Ghebreyesus has put it eloquently, “The greatest enemy we face is not the virus itself; it’s the stigma that turns us against each other.”

By: John Mwariri

Programme Coordinator, Legal Aid and Education Department

Kituo Cha Sheria.

Working from Home!

A psychologist’s perspective in these COVID-19 pandemic times

 A majority of us have had predetermined set schedules an 8am-5pm job with clear lines between our homes and the work place. Since early March, 2020 these walls came tumbling down and no one knows exactly when they will be rebuilt, although we are asked to keep hope alive. The world is faced with a virus so lethal and cruel which has not just put our humanity to test, but also gripped us with fear and lots of introspection.

Man must live! Life must go on! Bills must be paid!

Most importantly we must safeguard our HEALTH as well as look into rebuilding after the turbulence is over. How are we transiting? To what extent has our resilience been pushed to? How is the experience of working from home as foreign as it sounds?

From a mental health perspective experts and pseudo-experts across the world have put forth some recommendations- people are wired differently but here are some cues:-

Drastic changes require drastic adjustments: For most of the people who have always separated the office and workplace function, the sudden shift of the office to your home means re-adjustment to bring the office amenities to the household. Beyond the need for infrastructure (computer, internet); is the need for a quiet working space, and for most people this has become either the dining table or the bedroom but  if you have the little  running, hyper active and over energized soldiers then  your best bet is the bedroom  working under lock and key.

Time management is an utmost discipline: Suddenly we all have a lot of time in our hands but confronted with very few options. An old adage goes, to whom much is given, much is expected, and this time we are almost all equally gifted with long extended hours at home. Managing this time becomes critical to achieve an effective work and life or is it home balance. Once we have attended to the work needs, we have been forced to become creative in spending time to make the stay at home interesting. 

Technological savviness is inevitable: With the transition almost all services have become virtual, with technology   being employed in sharing, meetings, group tasks and even conferences.  Suddenly distant IT terms like ‘Microsoft teams, drop box, we transfer, documents collaborations, etc have become inevitable. Needless to say some people are more challenged than others, but one thing that is clear is that we cannot avoid technology.  Virtual IT support has become the norm but this means you have to work on the nuts and bolts of learning software yourself. But take it in stride; it’s all in the learning curve!

Work life balance taken literally: For the longest time we’ve been guilty of tossing the statement work-life balance and especially in relation to the family. However the full experience had been limited to the weekends that are further disrupted by personal errands, limiting it to a few hours of interaction. However, the experience of being under the same floor with our families for extended hours- 24/7 is almost surreal. Gone are the days families would exchange small talk and pleasantries between catching up on news, doing homework and having dinner together before catching sleep for a few hours before the routine replays.  With no school or much engagement outside, there is all the time and suddenly there is need to have longer and hopefully meaningful and impactful conversations as a unit. Consequently, many people are relearning their children, spouses, and partners and even rediscovering themselves and their hidden talents and gifts, given the time in our hands.

When to hold and when to let go: When initially catching up on the news every second was critically important for most people, as the pandemic evolves, some people have sometimes opted to have a media block. This could be so as to avoid unnecessary panic but also to focus on work or maybe it’s the adjustment setting in, that actually working from home can happen. In the face of such a pandemic, psychologists have advised that keeping off the negative news is important, as it may have negative consequences on your health.

The true value of colleagueship: Once upon a time before COVID-19,   weekends and sometimes working away from the office was one of those welcome breaks from sometimes monotonous office spaces with the same people and same vibe. But  as the days go by, and with  every  consultation coming  at a cost, and brainstorming sessions having  to be pre-planned unlike when you’d just walk up to a colleague to pick their brain on an issue; the invaluable importance of the these engagements is becoming avid. We are slowly learning that the 8 hours that sometimes came across as toilsome, offered a lot in terms of comradeship that we may have often downplayed.  Boundaries have not just been challenged but thoroughly redefined.

Health is the greatest wealth; with the globe grinding to a halt because of the virus, there has been great introspection of what ones health and the health of a nation means and the need to safeguard health as the greatest wealth.

As we continue to novel our experiences, we must remain positive and hopeful, because after this tide, we have an opportunity to not just rebuild but to better what we had previously.

Stay close to your normal routine: Try and maintain some semblance of structure from the pre-quarantine days. For those individuals with children, sticking to a routine might be easier; however as you work from home, it could be tempting to fall into a more lethargic lifestyle, which could lead to negative thinking. Wake up and go to bed around the same time, eat meals, shower, adapt your exercise regimen, and get out of your PJ’s. Do laundry on Sundays as usual. Not only will sticking to your normal routine keep you active and less likely to spiral, it will be easier to readjust to the outside world when it’s time to get back to work.

Avoid obsessing over endless Corona virus coverage: Freeing up your day from work or social obligations gives you plenty of time to obsess, and if you have a tendency to consult Google for every itch and sneeze, you may be over-researching the pandemic as well. Choosing only certain credible websites (who.int or Kenyan Ministry of Health or is it Mutahi Kagwe daily briefs??) fora limited amount of time each day (perhaps two chunks of 30 minutes each) will be in your best interest during this time.

A chaotic home can lead to a chaotic mind: With all the uncertainty happening outside your home, keep the inside organized, predictable and clean. Setting up mental zones for daily activities can be helpful to organize your day. For example, try not to eat in bed or work on the sofa- just as before, eat at the kitchen table dining table and work at your desk or an equivalent. Loosening these boundaries just muddles your routine and can make the day feel very long.

Additionally, a cluttered home can cause you to become uneasy and claustrophobic of your environment- so keep it tidy.

Start a new quarantine ritual: With this newfound time, why not do something special during these quarantined days? For example, perhaps you can start a daily journal to jot down thoughts and feelings to reflect on later. Or take a walk every day at 4 pm, connect with your loved ones over phone every morning, or start a watercolor painting which you can add to everyday. Learn a new recipe. Just be innovative….and stay safe!

The article was compiled by Shem Alubala a psychologist at MHPSS- Kituo Cha Sheria with pieces drawn from a number of articles online.

MHPSS: Kituo Cha Sheria and GIZ have worked together since 2017 in providing mental health and psychosocial support to refugees in urban areas through the Mental Health and Psycho-Social support Services (MHPSS) which is under the Forced Migration Program. The MHPSS program at Kituo cha Sheria is part of urban refugee MHPSS working group comprising of UNHCR, RCK, HIAS, DRC, CVT, ReFuShe, NCCK, Hesed Africa, AAA, MSF and REFUGE POINT. The program is also an active member of SGBV (sexual gender based violence) and IPPL (integrating psychosocial peace and legal) working groups. MHPSS’s focus is on refugees and the host community with emphasis on mental health awareness creation, individual counseling, group counseling, community forums, training of key stakeholders like the police, judiciary and other government officials on the mental health concerns among the persons of concern (refugees and host community). In addition, the program offers self-care and team training to the Kituo staff and has been of support to the team in terms of debriefing and emotional support.

An analysis of Reproductive Health Laws in Kenya

Introduction

Reproductive Rights according to the Black’s Law Dictionary are a person’s constitutionally protected rights relating to the control of his or her procreative activities specifically the cluster of Civil liberties relating to pregnancy, abortion and sterilization.[1] Reproductive Health according to the Reproductive Health care Bill has is a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity, in all matters relating to the productive system and to its functions and processes. The Bill also defines reproductive rights to include the right of all individuals to attain the highest standard of sexual and reproductive health and to make informed decisions regarding their reproductive lives from discrimination, coercion or violence;[2]

Legal Framework on Reproductive Health Rights

It is important to note that we borrow most of our laws on reproductive health rights from International and regional conventions and declarations. These include:

  • United Nations Universal Declaration of Human Rights. New York: United Nations, 1948 (Article 2,3,25 and 26)
  • UN. International Covenant on Economic, Social and Cultural Rights (ICESCR). New York: United Nations, 1966 (Article 2,10 and 12)
  • Convention on the Elimination of all Forms of Discrimination Against Women (Article 11,12 and 14)
  • Convention on the Rights of the Child (Articles 2,6 and 24)
  • African (Banjul) Charter on Human and Peoples’ Rights (Articles 2,16,18 and 25)
  • The African Charter on the Rights and Welfare of the Child (Articles3,5,11,14, 21 and 27)

National Legal Framework

The most supreme law of the country, the Constitution of Kenya 2010 gives provisions on the right to reproductive health under the Bill of Rights. Kenya has also adopted various International and Regional Conventions to its local law and has also gone further to enact specific laws that protect reproductive rights. The issue of adequacy of the law is determined by the existing provisions.

The Constitution of Kenya, 2010

This is the supreme law of Kenya and through its provisions in Articles 2(5) and 2(6) allow that the general rules of international law shall form part of the law of Kenya and that any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution respectively.

Article 26 is on the right to life of every person and provides that the life of a person begins at conception. In sub article 4 it states that abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

Article 27(3) states that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. This covers the right to equal treatment in the health facilities. Sub article 4 obliges that the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

Article 28 is on the right to one’s dignity being respected and protected which covers matters such as the services offered by health care providers. They ought to preserve the dignity of all without any discrimination.

Article 29 states that every person has the right to freedom and security of the person, which includes the right not to be subjected to torture in any manner, whether physical or psychological[3]which criminalizes acts such as female genital mutilation and forced or coerced sterilization.

Article 43 is on the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.

The Constitution further singles out health care for specific groups such as children and persons living with disabilities in Article 53 article 54 respectively. The underlying determinants of the right to health are also guaranteed in article 43(1) (b-f) and include right to adequate housing, right to adequate food, clean safe water, social security and to education.

The legal provisions in the Constitution are inadequate when it comes to the protection of reproductive health rights as it is not specific to all the reproductive health rights. The provisions are general and not specific to all the reproductive rights hence necessitating a specific law that focuses solely on reproductive health rights.

HIV/AIDS Control and Prevention Act [4]

The object and purpose of this Act[5] covers some of the principles such as that of non- discrimination, confidentiality, public awareness and participation, freedom as to consent to testing.

As to the specific provisions, Section 4(1) is on the role of the government to promote public awareness about the causes, modes of transmission, consequences, means of prevention and control of HIV and AIDS through a comprehensive nationwide educational and information campaign conducted by the Government through its various Ministries, Departments, authorities and other agencies while Section 5 insists on HIV and AIDS education in institutions of learning.

Section 13 speaks on the principle of informed consent and voluntary treatment as it prohibits compulsory HIV testing. Section 19 is on the access to health care services to persons with HIV without discrimination on the basis of HIV status and that the government shall, to the maximum of its available resources, take the steps necessary to ensure the access to essential health care services, including the access to essential medicines at affordable prices by persons with HIV or AIDS and those exposed to the risk of HIV infection.

The Children Act [6]

The Children Act protects the rights and freedoms of those who are considered children under the law. This is those who are below the age of 18 years. The relevant sections that are linked to the right to enjoy reproductive rights go from the provision of education to the right of privacy for children, which also influences the provisions for adolescents who fall under the category of children under the law.

Section 4(1) which states that every child shall have an inherent right survival and to life and it shall be the responsibility of me best interests Government and the family to ensure the survival and the development of the child.  This section looks at the best interest of the child.

Section 7 is on the right to education which shall be the responsibility of the Government and the parents and every child shall be entitled to free basic education which shall be compulsory in accordance with Article 28 of the United Nations Convention on the Rights of the Child.

Section 14 criminalizes female circumcision, early marriage or other cultural rites, customs or traditional practices that are likely to negatively affect the child’s life, health, social welfare, dignity or physical or psychological development while Section 15 provides that a child shall be protected from sexual exploitation.

Sexual Offences Act [7]

Section 3 and 4 criminalizes rape and attempted rape respectively. These are violations to the Reproductive health of persons. A person guilty of the rape is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life while the provision of attempted rape is imprisonment for a term which shall not be less than five years which may also be enhanced to imprisonment for life.

Section 8 is on defilement. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

Section 14 is on sex tourism which attracts a 2 million shillings fine for juristic person not less than 10 years imprisonment.

Section 15 provides for the offence of child prostitution and the imprisonment term is not less than 10 yrs.

Section 43 on intentional and unlawful acts. It specifies that these acts may either be coercive, by fraudulent means or through false pretenses. The coercive aspect could be through the use of force, use of threat of harm or through abuse of authority in a way that the victim is inhibited from showing such resistance. All of these acts constitute a crime against human beings with regard to violation of their reproductive rights which is a breach of the law.

Penal Code [8]

Sections 158 to 160 dwell on matters concerned with reproductive health. These sections deal with the termination of pregnancies.

Section 158 is on the liability of the person who has intent to procure a miscarriage and does so by unlawfully administering a poison or noxious drug or uses any other means. Once found guilty is liable to imprisonment for 14 years.

Section 159 makes it an offence for a person to procure their own miscarriage. Such a person is liable to imprisonment for 7 years.

Under Section 160, anyone who supplies or makes available drugs or equipment to procure a miscarriage and has knowledge on the same. Such a person is liable to 3 years imprisonment. These provisions are however restrictive and do not provide for modes and specifications as to safe abortions.

Section 240 can be read as creating a lawful exception. It states that, a person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case. However, the provision offers no guidance as to what circumstances may constitute the preservation of the woman’s life resulting in a lacuna in the legal provisions which may result in different interpretations of this exception.

Provisions of the Reproductive Health Care Bill, 2014

This Bill is yet to be made law in Kenya. It provides for reproductive health issues some of which are the focus of this paper.

It has several objectives:

  1. To provide a framework for the protection and advancement of reproductive and health rights for the women.
  2. To promote women’s health and safe motherhood.
  3. To achieve a rapid and substantial reduction in maternal and child mortality rate.
  4. To ensure access to quality and comprehensive provision of health care services to women and children.[9]

Part II of the Bill is on the access to contraceptives and family planning services. The National and County Governments shall make available contraception and family planning services, including contraceptive options, counseling, information and education according to Section 4.

Section 5 of the Bill states that a person has a right to information from the health care service provider prescribing a contraceptive method on the advantages and disadvantages of a contraceptive method so as to make an informed decision.

Part III gives provisions on gestational surrogacy, safe motherhood, termination of pregnancy, the requirement for consent for minors and those of unsound mind, adequacy of health facilities, confidentiality, child health care, the reproductive health of adolescents and penalties for the offences mentioned in the Bill

Are the reproductive health laws in Kenya adequate?

For Kenya to reach complete achievement of reproductive rights, there is need for adequate law on the same. There are various laws that touch on reproductive health rights in Kenya, the challenge is as to whether these laws are adequate to ensure the realisation of these rights.

The Constitution is not specific as to the protection of reproductive health rights and only provides for an umbrella of rights such as that to dignity, right to freedom and security of a person, the right to the highest attainable standard of health and that abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law. These provisions are not specific to reproductive health rights. Such inadequacy leaves too much room for discretion when it comes to enforcement of the right to reproductive health which might lead to non-realization of these rights.

In addition to the inadequate Constitutional provisions, there is also no specific Act on reproductive health care. We currently have a Bill in place, the Reproductive HealthCare Bill of 2014. This Bill has not been passed because it faces a lot of opposition by both religious leaders and legal experts. This means that there exists no extensive binding law that prevents the violation of reproductive health rights. Litigants have to use the existing relevant statutes which in most cases do not give specific provisions on matters of reproductive health. The existing laws on reproductive health rights include; the Penal Code, the HIV/AIDS Control and Prevention Act, The Children Act and the Sexual Offences Act.

However much the existing Bill tries to provide for surrogacy, termination of pregnancy, free emergency treatment, access to reproductive health services by adolescents, HIV prevention informed consent, the prohibition of female genital mutilation and the creation of a board and tribunal on matters of reproductive and child care, it has been met with a lot of opposition by parents, the clerics, the Ministry of Education and the public. The view on this Bill is that it causes moral decay among the adolescents who are at a very vulnerable stage of their lives as well as its inadequacy as to provisions on the complete protection of all reproductive health rights.

The objectives of the proposed Bill are undefined and vague making it easy for enforcers to interpret them differently. Terms such as child mortality and safe motherhood are not defined in the said Bill. The Bill is also faulted for making very little reference to safe motherhood. It merely provides for who are to offer maternal care in Section 16 and doesn’t give the steps on how to encourage safe motherhood. Section 17 also doesn’t include post-natal care services as a service that facilitates safe motherhood of pregnant women which contributes to its inadequacy.

Part IX of the Bill on the reproductive health of adolescents has also elicited much debate and opposition among legal experts, parents and religious leaders. The argument has been that at the age of 10-17, children need to be guided and parents or guardians need to be involved in the child’s life. It is contrary to the provision in Section 19 of the Children Act that provides the right to privacy of a child is subject to parental guidance. It also goes against Constitutional provisions in Article 53 1(e) which provides that every child has the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not and Sub article 2 which states that a child’s best interests are of paramount importance in every matter concerning the child.

Legal abortion in industrialized nations has emerged as one of the safest procedures in contemporary medical practice, with minimum morbidity and a negligible risk of death.[10]The restrictive laws we have in Kenya on termination of pregnancies has led to failure of realization of the right that women have to choose when to have children.

Consequences of inadequate laws on reproductive health rights

Inadequacies in the laws results in inadequate enforcement of reproductive health rights which has led to violations such as inadequate reproductive health facilities, poor quality of available health care and increased cases of forced and coerced sterilization of women especially those living with HIV going unpunished.

The restrictive nature of the laws regarding termination of pregnancies has resulted in many challenges. First, procuring an abortion in Kenya, whether safe or unsafe, carries social risks for women, such as stigma and social condemnation as well as legal risks such as fear of arrest and prosecution. Some women are forced to carry an unwanted or unplanned pregnancy to term. This has serious implications for her mental and physical health and her ability to realize other fundamental human rights as this causes a breach to their right to be free from cruel, inhuman, or degrading treatment.

There is also the challenge of accessing post-abortion care which might either be inadequate or too costly to afford. The inadequacy of the legal provisions on abortions in Kenya, has led to lack of clarity concerning clinical officers’ and nurses’ scope of practice in Kenya which has led to most health care providers not offering this service in fear of criminal proceeding being brought against them.[11]

In conclusion, there is need for increased adoption of laws both at the International and Regional level into the National laws we have on reproductive health rights. Kenya is yet to enact a binding law on reproductive rights and the current Bill has been faced by much opposition as to matters of morality and adequacy in provisions which will be discussed in the next chapter. This in turn means that the realization of these rights is not complete in Kenya because of the inadequate legal provisions.

Published by

Tracy Wachira, Advocate

RCKM, Kituo Cha Sheria


[1] Bryan A Garner, Black’s Law Dictionary, 9th Edition

[2] Reproductive Health Care Bill, 2014 part I

[3] Sub article d of Article 29

[4] No 14 of 2006

[5] Section 3 of no 14 of 2006

[6] No 8 of 2001

[7] No 3 of 2006

[8] CAP 63 of 2007

[9] Section 3 of the Reproductive Health Care Bill, 2014

[10] David Grimes et al, Unsafe abortion: The preventable pandemic, (Lancet, 2006)

[11]In Harm’s Way: The Impact of Kenya’s Restrictive Abortion Law. (Centre for Reproductive Rights, 2010) at 14.

Ugly Spaces of Neglect & Discrimination: A Critical look into the Right to Adequate Housing for Persons Living with Disabilities in Kenya

Ugly Spaces of Neglect & Discrimination: A Critical look into the Right to Adequate Housing for Persons Living with Disabilities in Kenya

Introduction

As I write this paper, I find myself at a cross roads; I would like to affirm the law- keep in the straight and narrow of legal writing. However, I am also reminded that this is but a story of a province of people who face discrimination and neglect at every turn. I know we can all imagine how hard it is to find a ‘suitable’ house in the city of Nairobi. Let’s give it another thought, imagine a wheelchair user, one who cannot navigate the tiny corridors or take up the stairs in houses that expand vertically every day. I imagine you get the picture we’re painting. I seek therefore to look at adequate housing through the lenses of persons with disabilities in Kenya. The areas of concern include:

  • Meaning of   Adequate Housing
  • Supporting Instruments and Legislations on Adequate Housing
  • Challenges to Adequate Housing for PWDs in Kenya-
  • Possible solutions

Meaning of Adequate Housing

The right to adequate housing has been interpreted in the expansive manner. The United Nations Committee on Social and Economic contends that housing is more than a shelter or owning a house. This right encompasses living in a place with dignity, security and peace. It  also entails the policies that Governments eradicate homelessness. It further entails; the right to adequate housing entails the following: legal security of tenure, availability of services and infrastructure, affordability and habitability and protection of the vulnerable such as the elderly and persons with disabilities. Kenya and the developing world has adopted a progressive realization approach to the right to housing. This persuasion has aided in getting very little done towards eradication of slums and informal settlements.

Supporting Instruments and the laws on Adequate Housing

The Universal Declaration of Human Rights, 1948 is the first instruments that gives dominance to the right to adequate housing. The word standard of living is used to denote a certain desired level of doing things. The instrument goes down to specifically touch on housing and security of tenure.  The International Convention on Social Economic and Cultural Rights also recognizes the right to adequate housing in Article 11. This is a replica article adopted by member States who had allegiance to the Universal Declaration of Human Rights.

The International Convention on Civil and Political Rights touches on a number of rights that support the concept of adequate housing. These include: the right to life, freedom from torture cruel and inhuman treatment and privacy to home and family. Specific instruments touching on different vulnerable groups also touch on the right to adequate housing. The Convention on the right of a child touches on housing for children while Convention on the Elimination of all forms of discrimination against women 1979 highlights the need for woman to have better housing. There are other international instruments such as the one dealing with protection of indigenous people as well as the instrument that is established to eradicate all forms of discrimination also touches on the right to adequate housing. The other instruments are the regional instruments that also highlight on the right to adequate housing. The African Charter is most relevant in this instance.

Domestically, the Constitution of Kenya 2010 also advocates for adequate housing.  Through Article 43, Kenya speaks to the universality of human rights. The Government has an obligation to progressive move towards adequate housing.

Challenges to Adequate Housing for PWDs in Kenya    

Statistically, 80% of the of persons living with disabilities live in the developing world. There are a number of challenges that they face. Firstly, there is the lack access. Developers of houses in the developing world ignore elements of access for persons with disabilities. It is important that houses should be structured in a way that Persons with disabilities can access the infrastructure. Secondly, stigma and discrimination that goes on in developing countries with regards to persons with disabilities. As much as they are also part of the society, persons living with disability are never consulted with regards to house designs and architecture.

Thirdly, persons living with disability face the challenge of owning their own home. This may be also linked with the idea of stigmatization and discrimination. Many of these people have very little income and are not able to afford a home. Persons with mental and intellectual disabilities are not thought of to have capacity to hold on to security of tenure hence vulnerable to forceful evictions.

Possible solution

It is important for Kenya to implement the law. Kenya has a Constitution 2010 that demands for adequate housing in Article 43. It also binds Kenya to international law through article 2(4) and 2(5).

I offer a few solutions that the Government may consider: –

  • Legislative interventions, the laws on housing and developments should be made as inclusive as possible
  • The Government working with the Disability Council need to work progressive towards making living places accessible, disability friendly
  • Awareness, empowerment for PWDs in their discourse so that the right to housing should be dealt with as a conscious issue
  •  Empowerment of PWDs financially will also aid them in affording houses and hence the dream towards adequate housing

By:

Ouma Kizito Ajuong’

Advocate of the High Court of Kenya

https://www.facebook.com/pennyformythoughtsKZ

https://www.poeticfountain.wordpress.com/thevoiceofafrica

Deterrence over Punishment: Introduction of Parole in the Criminal Justice System

Deterrence over Punishment: Introduction of Parole in the Criminal Justice System

Introduction

Parole may be defined as conditional release of a prisoner, subject to supervision, before the expiry of the prison term.  This is a practice anchored in the realization that sentencing doesn’t have a unitary purpose. A lot of scholars have unpackaged that sentencing has multiple functions which include:  punishment, deterrence, retribution and a show of state power. There is a strong undisputed argument that sentencing is not just for the judges and the statute books but it requires a consideration of a number of factors, key of which are the objectives of the punishment and nature and characteristic of the offence. Parole therefore comes to play due to these factors. It is important to remember that parole is not excusing an offender, it is giving an offender a chance to serve the sentence away from the prison as stated in the South African Constitutional case of   S v Dodo 2001 (3) SA 382 CC, the Constitutional court made the point that the Executive has an important part to play with regards to sentencing. This paper discusses parole as a component of both the criminal justice system and the Executive.

A number of issues come to focus: –

  1. Parole and the Objective of the Correctional Service system
  2. Medical Parole
  3. Implication on the Law on Parole

Background

The prison services in Kenya was architectured by the British East African protectorate with the enactment of East African prisons regulation of 1902. The structures were however established in 1911 in the Ministry of Home Affairs Sports and Heritage. 1917 saw the introduction of the Commissioner and Assistant Commissioner of Prisons to enhance management of prisons. This was a change from the Prison Board.

Statistics indicate that in 1911, the prison population in Kenya was only 6,559 inmates managed and supervised by 319 staff. These inmates occupied the prisons and the borstal institutions in Kenya. The period between 1963 and 2002 witnessed somewhat of neglect in the prison services. This resulted into a myriad of challenges not just for the inmates but officers who run this department.

Since 2003 under the Government of President Mwai Kibaki and the stewardship of Vice President Moody Awori, a number of major reforms were undertaken. This came as a realization that the neglect had created impoverished living conditions in the prisons.

They had poor sanitation, non-existent medical check-ups and a horrible diet to boot.  The inmates basically lived in seclusion without any knowledge of the outside world.  This dramatically changed as there was an introduction of computers, TV sets and better education materials. Today inmates in most prisons have days set aside to meet with their families, fashion and design days, a better diet and portions, sanitation is also remarkably improved and the inmates generally live in a better and accommodative environment.

In spite of these, there are still major challenges within the prisons services such as overcrowding which is the subject of this paper. Illuminating literature on the subject of “overcrowding in Kenya’s prisons” indicates the ripple effects of overcrowding to include spread of diseases, pressure on the limited resources and perhaps the Government in Kenya is also spending more money to run the prison facilities.

It is against this backdrop that this proposal is built. This is an attempt to use the law to create a mechanism where the objectives of correctional services are met and at the same time, there is an avenue to decongest prisons in Kenya. Currently, data from the prisons department indicate that Kenya has a population of 50,223 against a capacity of 2,900.  Below is a breakdown of the prisons numbers: –

Sample of population of inmates in Kenya’s major Prisons.

PRISONPOPULATIONCAPACITY
1.Kamiti Max.19911483
2. Shimo Max.1598850
3.Kisumu Max.2256800
4.Nyeri Max1005600
5. Nairobi Remand25472288
Sample of population of inmates in Kenya’s major Prisons.

These statistics mean that Kenya has up to 50, 000 of her people who are not producing optimally but are rather dependent on the State. Further, this can be translated to more than 50,000 families that carry both a psychological and literal burden.

As much as putting these inmates away is designed to protect both them and the society; perhaps, there is need introduce a proper mechanism that may facilitate early conditional release for those rehabilitated hence reducing congestion and getting the productive force back to the society.

Parole and the Objectives of the Correctional Service System

Prison system or the correctional service system is meant to put those who have gone against the norms of the society away. The reason for this is so as to maintain peace and stability in the society. The other objectives are punishment deterrence and rehabilitation. Parole plays the role of alternative to custodial measures where it is not necessary, rewarding offenders for good behaviour participating in rehabilitating programs and a way of reintegration into the society.

Medical Parole

While the law in Kenya provides for mitigating factors in sentencing, it does not provide for non-custodial sentence for those who are ill. As much as inmates are entitled to medical care, a law establishing parole may give those with terminal illness the flexibility to get parole and serve their sentence in a more humane way.

Implication of a Law on Parole

What would such a law mean in Kenya? It means reform in the correctional services. It will also mean review of the criminal laws. Offences in Kenya may have to be looked at as more than just felonies and misdemeanours to include rules on parole. This will also primarily involve the judiciary, the executive, civil society and the community in the justice system. Parole helps to solve overcrowding in the prison system as it gives structure to the prisons. It is also in line with the best practices and international law.

Conclusion

I write this paper because of my conviction that it’s about time for Kenya to carry on prison reforms. Perhaps it’s time for an attitude change and an effort to make things better through legislation.

By:

Ouma Kizito Ajuong’

Advocate of the High Court of Kenya

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Understanding the Tree at its Roots: General Principles of the Convention of Persons with Disabilities (CRPD) Contextualized

Understanding the Tree at its Roots: General Principles of the Convention of Persons with Disabilities (CRPD) Contextualized

Historically speaking, the Convention of the Rights of Persons with Disabilities was the first human rights treaty of the 21st century. The text was adopted by the United Nation General Assembly (UNGA) in 2006. The law came to force after ratification in 2008 and has 181 members including Kenya. The intention of this instrument was to promote and protect the dignity and the rights of persons living with disabilities around the world. This was crafted on the background that persons with disabilities were viewed more as charity cases rather than people with full inherent human rights and full members of the society. Widely acclaimed as the only instrument with an explicit aspect of sustainable development dimension, this paper looks at the general building principles of this instrument in relation to the domestic laws in Kenya.

Article 3 of the Convention on the Persons Living with Disabilities (CRPD) discusses a number of principles that underpin the rights of persons with disabilities hence the roots of disability right law.  This paper is however out to demonstrate what this principle means and what they portend for Kenya as one of the signatories of the convention.

Principle of Human dignity and Autonomy

The word dignity is derived from the Latin word dignitas which means worth- the idea that all human beings are worthy of respect by the virtue of being human beings. Autonomy on the other hands means that someone has the right to act without influence.  The shift in dimension from looking at PWDs as charity cases to human beings who deserve full rights and enjoyments of these rights brings to life this principle.  Member States are therefore obligated to ensure that these principles are carried within their laws and domestic legislation. In the Kenyan context, the Constitution of Kenya 2010 stipulates that every person has a right to dignity which needs to be respected and protected. Human Dignity is also a national value and principle listed under Article 10 of the Constitution of Kenya, 2010. Article 54 also stresses the inherent dignity of PWDs and qualifies it that they are not to be treated in a demeaning way.  The Persons with Disabilities Act is silent on autonomy and human dignity for PWDs however the very text of the Convention remains relevant in accordance to Article 2(5) and (6).

Principle of Non Discrimination

The principle of non-discrimination tends to guarantee that human rights are generally blind to inter alia sex, race and in this case disability. The Convention frowns upon a world where a person is denied their rights because of disability.  Persons living with disabilities primae facie face discrimination by virtue of societal and cultural design. In Kenya, the Constitution of 2010 is against discrimination of any form.  The Constitution of Kenya, 2010 lists non-discrimination as a national value.  The Persons with Disabilities Act is specific focusing on discrimination with regards to employment however, it is a bigger principle with a wider grasp.

Principle of Inclusivity

This is the idea that persons with disabilities should be included in every aspect of life. It is a principle that intertwines in a beautiful mosaic with other ideas. It is from this principle that the whole idea of disability rights is born. It propagates the idea that persons with disabilities should be included in all the spheres of life.

Principle of disability as Diversity in Humanity

This principle calls for acceptance of persons with disabilities within the society.  It promotes a view of celebrating these disabilities as diversity. The preamble of the Constitution of Kenya, 2010 carries these principles as it encourages the people of Kenya to embrace these differences. This principle is important as it is a reminder that even within the persons with disabilities, there is diversity as different PWDs have different concerns. Disability is diverse in terms of the kind of disability, economic and social status.

Principle of Equality of Opportunity

Persons with disabilities require opportunities in order to live a full social life. In Kenya, the Constitution of Kenya 2010 calls for affirmative action.  Article 56 requires that the State formulates a programme for affirmative action which is meant to ensure equality in opportunity. Article 54(2) on the other hand advocates for reservation of employment opportunities for persons with disabilities. Persons with Disabilities Act also advocates for employment opportunities and Education for PWDs.

Principle of Accessibility

Accessibility is a big concept when it comes to disability law. While the mind will always quickly go to physical access, there is need to think of the principle in a wholesome manner.  This is not to downplay the need for a transport mechanism that considers persons with disabilities or access to buildings and the need to insist on ramps.  The Constitution of Kenya, 2010 as well as the Disability Act covers these areas adequately. The only concern would be access to justice, healthcare, employment [which may be covered] but forms the broader picture.

Principle of Equality in Gender

There is need to recognize that even within the realm of persons with disabilities, there is a wide gap with regards to gender. Women and girls with disabilities are always double marginalized. There is therefore need to focus on this for one to deal with disability issues in a wholesome manner. This is not however to say that women and girls need more attention, rather, their issues are different and require different mechanisms to deal with.

Principle of Evolving Capacity in Children with disabilities

This is a principle that focuses on children living with disabilities. It enhances the thought that the growth of a child while is scientifically documented it is enhanced by the environment that the child grows.Children with disabilities are hindered by their disabilities in one way or another; however, it is a tragedy to imagine that they are affected in one way.

Way Forward

Having understood the root principles that underpin disability statutes and movement, we need to do the following: –

  • Advocate for the progressive implementation of these rights and principle in a manner that shows progress
  •  Create awareness amongst the province of PWDs so that they understand these as legal rights and not charity by the State
  • Involving the Courts and the Judiciary as well as Parliament and the Executive in formulating plans and finding solutions in matters PWDs

By: –

Ouma Kizito Ajuong

Advocate of the High Court of Kenya &

Person with Physical Disability

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International Day of Disabled Persons- Dec 3: [2019 Theme: Promoting the participation of persons with disabilities and their leadership: taking action on the 2030 Development Agenda]

The annual observance of the International Day of Disabled Persons was proclaimed in 1992 by United Nations General Assembly resolution 47/3. It aims to promote the rights and well-being of persons with disabilities in all spheres of society and development, and to increase awareness of the situation of persons with disabilities in every aspect of political, social, economic and cultural life.

Building on many decades of UN’s work in the field of disability, the Convention on the Rights of Persons with Disabilities, adopted in 2006, has further advanced the rights and well-being of persons with disabilities in the implementation of the 2030 Agenda for Sustainable Development and other international development frameworks, such as the Sendai Framework for Disaster Risk Reduction, the Charter on Inclusion of Persons with Disabilities in Humanitarian Action, the New Urban Agenda, and the Addis Ababa Action Agenda on Financing for Development.

Occupation Health & Safety as a Disability Right: Is there a Lacuna in the Law?

Occupation and safety health laws refers to collection of constitutional, statutory and customary standards and obligations meant to ensure safety in the work place. This is a traditional and pivotal part of employee welfare program. It is engrained in the principles of labour relations. The idea that for employees to optimally be productive, there is need to make the working environment safe and accessible. Legally, international instruments such as Article 7 of the Convention on Social Culture and Economic Rights provides that employees inter alia are entitled to safe and healthy working conditions. The ILO has also come up with over fifty instrument all dealing with different aspect of safety at work.

These statutes distinctively deal with safety to prevent deaths, accidents and therefore work related disabilities. The Constitution of Kenya 2010 is silent when it comes to occupational safety and health in general. However, the Occupational Health and Safety Act, 2007 breaks down the issues that constitute occupational health and safety law. These include: rights and duties with regards to occupational health and safety, creation of an administration office to implement the Act, health safety, chemical safety, amongst others.

This paper is however concerned with three issues;

  1. Are occupational health and safety laws part of disability rights?
  2. How are occupational health and safety laws fused into disability laws and what’s the jurisprudence thereof
  3. What is the way forward and best practice?

Occupation Health and Safety as a Disability Rights

Disability Rights may be defined as those distinct rights elaborating sufficient standards of protection for civil, cultural, social and economic rights for persons living with disabilities on the basis of inclusion, equality and non-discrimination. These Rights were born out of the realization that persons with disabilities though are a part of the general population and social fabric; face unique challenges and situation that require legislative interventions.

Therefore, are occupational health and safety laws disability laws? The answer to this is in the affirmative. Persons living with disabilities form part of the workforce and therefore need specific needs with regards to occupational safety and health. There is need to make a distinction that while the general laws are meant to prevent and protect against disabilities- occupational   safety and health as a disability is after the welfare and safety for persons with disabilities. It ideally asks the employees to ensure that their places of work are not only disability friendly but safe.

Occupation Health and Safety within Disability Law

Disability laws in the Kenyan context consist of the Constitution of Kenya 2010, Convention on the Rights of Persons with Disabilities and Persons with Disabilities Act No. 14 of 2003. Having established that occupational health and safety is an integral part of disability rights. It is important to interrogate if this is covered in the disability laws.  Disability Rights are given a spotlight in Article 54 of the Constitution of Kenya 2010.  While the supreme law does not directly speak of occupational health and safety, the law requires employment of 5% of persons with disabilities to every appointive and elective position. 

The Constitution of Kenya 2010 also reiterates the obligation to treat persons with disabilities with dignity. This in no uncertain terms means inclusivity and therefore boils down to access and safety at the work place. In addition to this, access and free movement for persons with disability is also a key element of Article 54.

The Convention on the Rights of Persons with disabilities which is part of the laws of Kenya pursuant to article 2 of the Constitution 2010, gives member states an obligation to ensure that persons with disabilities have access in the work place; are appreciated for their skills in the labour market and work in a safe environment. The Parent Act- the Persons with Disabilities Act, just like the Constitution of Kenya; while it touches on related provision on work, access and the standards of public building; it is silent on matters of safety at work with regards to persons with disabilities.

What about Jurisprudence from the Courts? 

A lot of matters regarding disability rights and mainstreaming have been canvased within the legal system since the promulgation of the Constitution of Kenya in 2010. There is however very little jurisprudence on the matter of occupation health and safety for persons with disability. The prevailing attitude is one looking at these provisions as preventive of disability but not rights for persons with disabilities.  Is there a lacuna in the law?   

Which Way Forward?

The Convention on the rights of persons with disability promotes integration and disability mainstreaming. This means having an inclusive look in every aspect of life for a person with disability. While prevention is key, disability laws majorly focus on those with disabilities. Occupational health and safety laws would therefore ensure that these persons are safe at work and are able to be productive in spite of disability.

I therefore propose the following interventions: –

  • There is need to change the attitude on disability. Kenya has to start looking at persons with disabilities as an integral part of the society. I therefore propose an integral and inclusive way of looking at the law and resultant jurisprudence.
  • Legislative interventions- there’s need to amend the parent disability statute to include matters of welfare, health and safety in the workplace for PWDs.
  • There is also need to have awareness in this subject. Create rules and regulation- subsidiary legislation that touches on specific hazards are meant to protect the vulnerable such as PWD’s in case of emergencies at the place of work.

By:

Ouma Kizito Ajuong’

Advocate of the High Court of Kenya

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