The suspension of Justice Mary Gitumbi of the Environmental and Land court following a petition by the Judicial Service Commission on grounds of mental incapacity places in doubt Kenya’s commitments to its own laws and international human rights treaties meant to preserve the dignity of all persons with disabilities.
The suspension points at a need to have a national dialogue on laws that do not protect rights of all citizens; but rather seek to humiliate them as well as strip them of their dignity.
Many of our laws, especially with offensive clauses, borrow from old colonial laws, some of which have been repealed. For example, laws still have provisions such as ‘people of unsound mind are not allowed to hold jobs or to vote in an election,’ or discriminatorily and in very ablest provisions provide that, ‘a person can lose their position in an elective or appointive post if he/she is unable to discharge the functions of his or her office by reason of physical or mental infirmity.’
The terms, ‘physical or mental infirmities’ often time have been used discriminatorily to deny persons with disabilities opportunity to exercise their rights.
The Convention on the Rights of Persons with Disabilities (CRPD) that Kenya ratified over a decade ago has spoken about concepts of legal capacity and mental capacity and has acknowledged that often time perceived or actual deficits in mental capacity have been used as justification for denying legal capacity.
The CRPD committee states that legal capacity is the ability to hold rights and duties and to exercise them. It is a key to accessing meaningful participation in society. On the other hand, mental capacity refers to the decision-making skills of a person, which naturally vary from one person to another and may be different for a given person depending on many factors, including environmental and social factors.
The CRPD committee reiterates that perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity. The committee has emphasized time and again that discriminatory denial of legal capacity must never be permitted but, rather, a requirement that support be provided in the exercise of legal capacity.
In addition, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) that Kenya has also ratified, provides for women’s legal capacity on an equal basis thereby acknowledging that legal capacity is integral to legal recognition before law in civil matters.
It is imperative therefore that even as the tribunal is set to examine this case involving Justice Mary Gitumbi that from the very start it is understood that removal of a person from an office on grounds of “physical or mental infirmity/incapacity” is discrimination on the basis of disability.
If the grounds of removal from position are inability to discharge the duties of the position, the language should say just that; using disability neutral language goes a long way to address stigma and discrimination directed at persons with disabilities.
