ACCESS TO JUSTICE
A48 defines access to justice as removal of all barriers that can hinder persons with disabilities from seeking redress once an unlawful or wrong act has been done to them. This is one of the most important rights and as such should be available to all citizens of a country regardless of their race, health status, cultural background, social class and any other distinction whatsoever. For this to happen, the government while considering or making laws and policies, procedural, administrative and substantive law that accommodates inclusion of persons with disabilities.
Matters of access to justice can be narrowed down to be said that they work hand in hand with the principle of procedural and reasonable accommodations. This principle is centred on the belief that the justice system should offer all resources and facilities necessary to all persons so as to facilitate administrative services that are expeditious, efficient, lawful, reasonable and procedurally fair.
The Laws of Kenya that play a key role in access to justice for persons with disabilities in the criminal justice system include but not limited to;
- The Constitution of Kenya 2010,
- Penal Code,
- Criminal Procedure Code,
- Sexual Offences Act,
- Mental Health Act and
- Persons with Disabilities Act.
In terms of human rights, Article 48 Initiative relies on the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) to prioritize person first centeredness, equality and nondiscrimination. We advocate and uphold the right to legal capacity for persons with mental disabilities. By taking this approach we ensure the involvement of the rights holder and the duty bearer bound to protect the holder’s right.
DISABILITY AND POVERTY
Being disabled is not a crime. In fact, I believe no one would wish such a fate for themselves however some of our laws and procedure work against persons with disability almost with an aim to punish them for their predicament. This is similar with being poor. It is indeed proving to be very difficult for persons with disability who are poor to access justice as we live in a man eat man society. Instead of the system taking measures to assist our fellow brothers and sisters who are at a disadvantage, it enables those in advantaged positions walk all over them.
Most persons with disability in contact with the law in any capacity become invisible in the system due to discrimination and are further not treated equally with other persons before the law. Our justice system needs reforms that will put procedures that are favorable to them in place in order for this challenge to be curbed. We need more judges and magistrates with disabilities to be appointed in order to aid with these reforms as they would understand the needs of these group of people better than those who are not. For this we use advocacy and litigation to remove economic and social barriers that person with disabilities face in accessing justice.
Health rights: Needs Assessment Not Mental Assessments.
This refers to the conducting of a mental exam to ascertain one’s mental capacity and not legal capacity. As A48 we advocate for separation of the two, mental capacity and legal capacity while pushing for legal reforms in line with Article 12 of the Convention on the Rights of Persons with Disabilities. The violation of Article 12 of the CRPD is the basis for legal and attitudinal barriers that most persons with disabilities face in accessing justice and denial of reasonable accommodations on the same. Advocacy and litigation remains our tools of choice to bring done the legal and attitudinal barriers on legal capacity
GENDER AND DISABILITY
Under this sub topic I would like to address the issue of menstrual hygiene specifically. Being a woman in this society is already a ground for discrimination in this society. Now being a woman with disability is an even larger barrier to access to justice. When a woman with disability is in prison, communication is already hard as they are viewed differently as others in there. This makes it difficult for them to express their needs and the challenges they are facing.
Menstrual hygiene in itself is a sensitive topic for most women as for a long period of time it was seen as a shameful topic to discuss. Women in prison are not allowed to wear underwear as a security measure to prevent suicide attempts. This makes it difficult to wear sanitary towels as they are designed to be worn with panties. This an infringement of the rights to be treated with human dignity and reasonable accommodation.
Disabled women require adult pampers on a daily and even require more to use when experiencing their menses. This adult pampers are very expensive and such the needs of such persons cannot be met.