ANALYSIS OF THE LEGAL FRAMEWORK ON ACCESS TO JUSTICE FOR PERSONS WITH MENTAL DISABILITIES IN KENYA
Abstract
Purpose of Study: The study examined the legal framework governing access to justice for persons with intellectual and psychosocial disabilities in Kenya.
Problem Statement: Access to justice is a fundamental human right and an essential component of the rule of law. In Kenya, persons with intellectual and psychosocial disabilities continue to experience barriers that may limit their ability to access, participate in and obtain effective remedies from the justice system. Although the Constitution of Kenya, the Mental Health Act, the Evidence Act, the Penal Code and other legal instruments provide various safeguards, concerns remain regarding legal capacity, discrimination, communication, legal representation, reasonable accommodation and effective participation in judicial proceedings.
Methodology: The study adopted a qualitative research design and relied primarily on doctrinal legal research. Data was obtained through a systematic review and analysis of primary and secondary legal materials, including the Constitution of Kenya, relevant statutes, judicial decisions, international and regional human rights instruments, government policies, institutional reports, academic literature and other relevant publications. The collected information was analysed thematically through interpretation and comparison of legal provisions, judicial decisions and human rights standards.
Results: The study found that Kenya had established a constitutional and statutory basis for protecting the rights of persons with disabilities and ensuring access to justice. However, gaps remained between the formal legal protections and their practical implementation. Persons with intellectual and psychosocial disabilities continued to face barriers associated with stigma and discrimination, inadequate reasonable accommodation, communication difficulties, limited access to legal assistance, questions concerning legal capacity and insufficient awareness among justice-sector actors.
Recommendation: The study recommends strengthening the legal framework, enhancing reasonable accommodation within justice institutions, improving access to legal aid and support services, strengthening the capacity of justice-sector personnel, and promoting measures that protect the legal capacity, dignity, autonomy and effective participation of persons with intellectual and psychosocial disabilities.
Keywords: Access to Justice, Intellectual and Psychosocial Disabilities, Legal Capacity, Reasonable Accommodation, Supported Decision-Making, CRPD, Mental Health Act, Kenya
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