UN Committee Calls on Kenya to Prevent Forced Sterilisation of Women with Disabilities and to Ensure the Right to Legal Capacity for All

The United Nations Committee on the Rights of Persons with Disabilities (CRPD Committee) has released its Concluding Observations on Kenya. The Committee has recommended various steps for the Kenyan Government to improve protection of the rights of persons with disabilities, including measures to prevent forced sterilisation and informal deprivation of the right to legal capacity.

Nairobi, the Kenyan capital ©BBC

The United Nations Committee on the Rights of Persons with Disabilities (CRPD Committee) has released its Concluding Observations on Kenya’s compliance with the Convention on the Rights of Persons with Disabilities (CRPD). Kenya assumed the duty to guarantee the rights of persons with disabilities protected by the CRPD by ratifying it in May 2008. It is now the first time the Kenyan state has been reviewed by the CRPD Committee and the first time we can read about the Committee’s opinions on the situation in Kenya.

Within the process of review the CRPD Committee entered into dialogue not only with the State, but also with the civil society and expert organizations. MDAC has been closely involved in this process, drawing upon the experience it has with working in Kenya. In 2014, together with  Users and Survivors of Psychiatry Kenya (USPK), MDAC published the first ever report on the right to legal capacity in Kenya. In 2015, together with USPK, joined also by other partners, including the Kenyan Association of the Intellectually Handicapped (KAIH) and Herbert Smith Freehills and Mburugu & Kayonge Associates law firms, MDAC submitted to the UN a detailed report on  Kenya's implementation of the CRPD.

We are pleased to see that all our work and research efforts were carefully considered by the CRPD Committee, which addressed our main concerns when making recommendations for the Kenyan state. The Committee started by acknowledging that Kenya has made some steps towards the recognition of the rights of people with disabilities by, for example, introducing affirmative action measures in the area of employment.

The Committee however also expressed concerns in  relation to a variety of areas where the rights of people with disabilities are being violated.

Forced sterilization

One such concern was expressed in relation to practices of forced sterilisation of women with disabilities. MDAC and its partners talked with several Kenyan women who have been forcibly sterilised. One of them was Atieno, a woman in her late 20s with an intellectual disability, who was sterilised by a missionary church after being sexually abused. “Nobody asked me if [I wanted to be sterilised]…They should have asked me, because I love children…I feel bad, but what can I do now?...If I knew before, I would have refused to go for that operation”.

Considering such evidence, the Committee recommended the Government to adopt  measures to prevent and prohibit violations of sexual and reproductive rights of women with disabilities, addressing female genital mutilation as well. Raising awareness about such rights was also recommended.  

Not being able to make choices

The Committee also had concerns in relation to the realisation of the right to legal capacity. This right ensures recognition of disabled people as persons before the law, equipping them with the capacity to make decisions about their own lives and have those decisions respected.  

It was noted that various laws formally deprive persons with disabilities of their legal capacity, but also that such persons are prevented from making decisions for themselves because of entrenched social customs. According to such customs, relatives and others feel they have the right to take decision on behalf of people and disrespect their will and preferences.  

For example, when asked by MDAC whether Kiprop, who has a mental disability, had a right to make decisions for himself, his sister replied “yes and no. Yes because he can make some decisions and no because I am his carer and I think I know what is best for him.” Kiprop said that not being able to make decisions for himself feels “bad”.

The Committee used the term “de facto guardianship” to describe the situation of persons such as Kiprop: he has not been stripped of his legal capacity by a court, but is unable to exercise his right in practice because people in his surrounding assume they know what is best for him. The Committee’s mention of de facto guardianship signifies a new normative precedent, which would vindicate much of MDAC and its partners advocacy efforts, should it be applied in the future to tackle deprivation of legal capacity in the community.

MDAC therefore welcomes the CRPD Committee’s Concluding Observations and it calls on the Kenyan Government to give due consideration to the Committee’s recommendation and make sure that they are implemented. In four years time Kenya will be reviewed again and the UN Committee will want to see progress. In the meantime MDAC and its partners will monitor the situation, expose abuses and advocate for laws, policies and practices to start being in line with the Convention on the Rights of Persons with Disabilities.  

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