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Disability and Inclusion Within the Judiciary: Are we Doing Enough in Kenya?
By Hon. Jane Ocharo, Magistrate/ Deputy registrar, LLB(Hons) M.A Human Rights
The Judiciary as one arm of government has a responsibility towards the citizenry as stipulated under Article 159 of the constitution. Article 159 states that the citizen have vested judicial authority to the institution. This creates an obligation to the institution to ensure that Justice is dispensed to all citizens in consideration of all the provisions of the law.
In particular reference to this Article is the right not to be discriminated in any manner, shape or form as contained under Article 27, of the constitution.
Discrimination for persons with disability [PWD’s] can take various forms. These include.
· Attitudinal barriers
· Environmental barriers
· Physical barriers
Institutional Barriers
These barriers if not adequately addressed lead to negation of equal treatment of the law for PWD’s.
Attitudes that stem from cultural or historical perceptions may continue to influence, the way PWD’s are treated in both informal and formal setups. Some of the elements of this attitudes can even be cited in existing statutes that require reforms. A few examples would be the penal code that still refers to persons with intellectual challenges as imbeciles and idiots. The mental health act, and the law of contracts act, refer to persons with intellectual disability as not having capacity to enter or engage in any contract. This is discriminatory since this category of persons can be assisted to understand to some degree, the nature of contracts they are engaging in.
The Judiciary has the role of interpreting the constitution in a manner that promotes human rights and dignity of all individuals. To this extent the Judiciary can contribute to promotion of equal treatment before the law by contributing to reforms in the law.
Another example is by engaging with stakeholders. Stakeholders who deal with groups/categories of PWD’s are experts in their assessment of their needs, capacities, treatment, therapies, etc. They have knowledge, capacity and expertise that can be utilized by the Judiciary to better adjudicate matters concerning PWD’s.
An example is when a litigant who has an intellectual disability or any other impairment that renders him/her incapable of giving coherent evidence in a court of law. The court recognizes this need and in some instances like the sexual offences, grants him/her the right to utilize an aide/intermediary that can capacitate to adduce such evidence.
These barriers can be recognized and addressed properly through trainings, workshops and interactions with such stakeholders. The Judiciary has engaged with various groups representing PWD’s, an example being the Kenya Association of Intellectually Handicapped (KAI), which trained judicial officers and staff on such issues.
Environmental barriers
These would include such areas like the infrastructure of the courts' buildings. The physical setup of the court facilities like washrooms, stairs etc. If these facilities are not inclusive in the manner that is determined by accessible building codes, then it imputes provisions of the law on accessibility including, Article 12 and 13 of the United Nations Convention on the Rights of Persons with Disability [UNCRPD]. These two Articles lay emphasis on the access to justice and equal treatment before the law for PWD’S.
There have been attempts to ensure that proper building codes and structures meet the recommended specifications for ease of access by all. The challenge being that most of the court buildings are quite old and are quite difficult to alter.
Physical barriers
An analysis of this barrier would indicate that most of the court documents, including case pleadings, statutes and other documentary material are in a format that is not easily accessible by some category of PWD’s. When such barriers occur and are not rectified or addressed, they hinder equal treatment of the law.
The Judiciary is taking steps to ensure that it endeavors to avail the material in soft copy and braille. This is to ensure that the material is in a format that is accessible to persons who are blind or visually impaired. The Judiciary in some instances has purchased braille equipment and adaptive technology to ensure that its employees with disability have a conducive working environment and have the necessary support to undertake their duties. The judiciary has also employed sign language interpreters, in those instances where such may be required.
The principle on Access to Justice, would seem to encompass a broader area/spectrum including issues like; affordability of legal fee, awareness of one’s rights, distance to courts of law, legal capacity etc.
The Judiciary Policy on Disability
The policy was launched in 2016, by the then Chief Justice, Hon. Dr. Willy Mutunga. The drafting of the policy was an inclusive exercise that brought together employees of the Judiciary from varying cadres.
The policy seeks to enhance the rights and working environment of employees with disability in the Judiciary. It also seeks to address clients of the Judiciary with disability, who seek services from the institution. The policy identifies the governing principles, lays out the framework for which it is to be implemented. It is wide ranging in its application and envisages the formation of a disability advisory committee as well as having a disability advisor.
Measures to enhance mainstreaming in the Judiciary
Other steps being undertaken to enhance inclusivity and access to Justice for PWDs ‘include:
Supporting officers engaged in the Inter Agency Coordinating Committee IACC, an inter-governmental agency tasked with policy formulation geared towards enhancing welfare of PWD’s.
Facilitating employees with assistive devices to overcome their disability for optimum realization of their potential.
Implementing international, national frameworks and regulations regarding employees with disability.
Challenges faced by employees with disability in the Judiciary
Employees with disability face a number of challenges as stated in the first paragraph. Employees with disability are disadvantaged in some instances when it comes to promotion and trainings. The trainings may at times not tailored to suit their situations. In some instances, the trainers are not sensitive to the needs of the employees with disability.
Attitudinal barriers also come into play when other employees without disability are not sensitized on the needs of those with special needs.
We believe that in engaging with all the parties to better understand their needs, it will go a long way in improving attitudes of all staff.
Judges and judicial officers would also benefit from such trainings as they will be able to recognize instances where reasonable accommodation is required. Timely interventions can then be employed to ensure that fair treatment of all is initiated. Interventions that offer tailor made trainings to the staff of Judiciary.
In conclusion, the Kenyan judiciary requires partnerships with stakeholders both national, regional and international in order to fully implement its policies and conventions on people living with disabilities. Thus, giving them dignity, autonomy, equality and solidarity with other members of the community as it provides a sense of belonging that arises from participation in decision making.