This report seeks to answer the question: “To what extent does Kenya guarantee the right to legal capacity
for people with intellectual disabilities and people with psycho-social (mental health) disabilities?”1
It shows
that Kenya must take immediate action to ensure comprehensive recognition of the right to legal capacity of
all people with disabilities in the country, and that the State must take a lead to tackle social prejudices which
disadvantage the vast majority.
The right to legal capacity is recognised as one of the most important shifts ushered in by the UN Convention on
the Rights of Persons with Disabilities (CRPD). Guaranteed in Article 12 of the Convention, legal capacity is the
mechanism through which the self-determination of people with disabilities is given legal recognition. It serves
a dual purpose, guaranteeing the legal recognition of people with disabilities and their decisions, and ensuring
access to supports in order to exercise their legal capacity.
As such, the right to legal capacity seeks to redress the historic lack of legal recognition provided to many people
with disabilities, particularly including people with intellectual disabilities and people with psycho-social (mental
health) disabilities. It requires States to take the lead in moving away from restriction and denial of the decisionmaking
rights of people with disabilities (‘substituted decision-making’) towards ensuring their autonomy in all
areas of life and the right to access support in exercising this (‘supported decision-making’).
One of the most significant findings of this report is the way in which ingrained social prejudices against people
with mental disabilities leads to significant restrictions being placed on their independence and autonomy on
a daily basis. Stereotypes of people with mental disabilities are reflected in a legislative framework which
systematically denies them legal recognition in a wide variety of areas including education, employment,
management of property and land and access to healthcare.
The testimonies from people with intellectual disabilities and people with psycho-social (mental health)
disabilities presented in this report provide a compelling case for the need for legal and social reform. Many
of them, in their own words, describe the restrictions placed upon them on a daily basis, limiting their freedom
to move, to associate with others, even to make decisions about marriage and founding a family. The effects of
social isolation and discrimination are brought into even starker contrast in the testimonies of women with mental
disabilities, many of whom reported experiencing gender-based violence, rape and even forced sterilisation.