Kenya – Women & Girls with Disabilities – Violence – Rights
Author: Womens UN Report Network
Date: May 15, 2006
Women with disabilities and sexual violence in Kenya
Monica Mbaru-Mwangi (2006-05-18)
Accessing rights for persons with disabilities in Kenya is a major challenge,
and is even more difficult for women with disabilities, as awareness on their
human rights is low and slow, argues Monica Mbaru-Mwangi, a disability activist.
This article links the personal story of a 10-year-old deaf girl, sexually
abused by a neighbour, to concrete legislation and protocols that should, in
theory, help her to attain justice.
Rose Mwikal is the mother of
10-year-old Mueni (not their real names), and has spent the past two years
fighting for an elusive justice. On 4 April 2004, a well-known neighbour
sexually abused Mueni while Rose was away attending to other family needs.
Since birth, Mueni has had a hearing impairment; a condition that has
forced her out of school. Rose is a single parent who has tried in vain to have
Mueni’s father take parental responsibility and assist in the burden of dealing
with her daughter’s disability.
According to the Kenyan Children’s Act,
parental responsibility towards a child is determined by the marital status of
the child’s parents. Where the parents were married at the time of the child’s
birth, or have subsequently married, the mother and the father have joint
parental responsibility. Neither the mother nor the father have a superior right
or claim against the other in the exercise of this responsibility [1].
However, in cases where the parents were not married at the time of the
child’s birth and have subsequently not re-married, the mother has full
responsibility whereas the father bears no responsibility at all [2]. The father
can acquire parental responsibility but this is optional and more importantly,
it is optional to the father; there is nothing the mother nor the child can do
to enforce the responsibility on him [3]. The provision in the Children’s Act on
parental responsibility is discriminatory, as it makes a child born out of
wedlock disadvantaged in comparison to a child born within
marriage.
Being alone and with no school nearby that will accept Mueni
because of her disability, Rose normally leaves her at home. On the day of the
incident, when Rose came back at around 2pm, she found Mueni crying in bed and
upon further investigation she noticed her soiled clothes. Upon enquiry, Mueni
took her mother’s hand and led her to her neighbour’s house and in sign language
indicated to the mother what the neighbour had done. Rose rushed to the nearest
police station, but was not issued with the necessary police medical forms
because there were none. She was further told, by the reporting officer, that
‘such a case cannot be properly supported in court as the girl is deaf and
disabled…she cannot be able to give evidence in court’.
With the help of
the local priest, Rose eventually managed to take her daughter to a hospital
where she got treatment. Eventually the matter was taken to court. The matter
has been listed on several occasions for hearing, but each time has been
adjourned, as no sign language interpreter has been available to assist in
taking Mueni’s evidence. Rose is unable to provide this service as she is a
prosecution witness.
According to the Kenyan Constitution:
“… in
criminal cases … every person shall be informed in a language that he
understands and in detail, of the nature of offences … shall be permitted to
have without payment the assistance of an interpreter if he cannot understand
the language used at the trial…” [4].
It is therefore a constitutional
right to use the language that one understands. As Mueni is a prosecution
witness, she has the right to have her case facilitated by the state.
Kenya, which also adheres to the UN Standard Rules on the Equalization
of Opportunities for Persons with Disabilities (Standard Rules) [5], passed the
People With Disabilities Act (Disability Act or the Act) in 2003. This
legislation gives rights, but does not set the necessary structure necessary for
those rights to be realised. Similar challenges are faced in the drafting of the
proposed human rights instrument on the rights of People with Disabilities
(PWDs) at the international level, which is currently ongoing [6].
The
Act mandates the Council for Persons with Disabilities [7] to create the
structure and mechanisms for accessing the rights enshrined therein. The Council
has been in operation for the past two years, but it is still in its formative
stages. The Act does not address the specific rights of women with disabilities
nor does it deal with gender based violence, which occurs at high rates against
persons with disabilities.
Accessing rights for persons with disabilities
in Kenya is a major challenge, and is even more difficult for women with
disabilities, as awareness on their human rights is low and slow. Violations
occur on a daily basis, as there is no government policy on women rights.
Gender-based violence is very high and for women with disabilities, they suffer
a double violation, as there are no structures in place to give them specific
protection.
Women with disabilities have particular needs and they face
many obstacles in their struggle for equality. Although both men and women with
disabilities are subject to discrimination, women with disabilities are doubly
disadvantaged by discrimination based on gender and their disability status [8].
Therefore the case of Mueni is a reflection of how the Kenyan criminal justice
system and society at large view the rights of women with disabilities, and is a
demonstration of the failure to address serious violations of sexual violence
[9]. Like any citizen whose rights are enshrined in the Constitution, Mueni
should be given not only protection of the law, but access to a sign-language
interpreter, doctor, police officer and a judiciary who are aware of her
specific needs in helping her attain justice.
There is wide acceptance
that the human rights of people with disabilities must be protected and promoted
through general, as well as specially designed laws, policies and programmes
[10]. National governments can make this possible through their legislation. In
Kenya, this will be possible through the guidance of international standards to
inform national legislation.
Of significant importance is the Protocol on
the Rights of Women in Africa. On November 25, 2005, the Protocol on the Rights
of Women in Africa (the protocol) [11] entered into force, after being ratified
by 15 African governments [12]. Two years earlier, in July of 2003, the African
Union – the regional body that is charged with promoting unity and solidarity
among its 53 member nations – adopted this landmark treaty to supplement the
regional human rights charter, the African Charter on Human and Peoples’ Rights
(the African Charter). The protocol provides broad protection for women’s human
rights, including their sexual and reproductive rights [13].
CEDAW does
not contain any provisions that directly relate to discrimination or violence
against women with disabilities. However, in its General Recommendation 18, the
CEDAW committee recognises that women with disabilities experience particular
forms of discrimination and asks state parties to provide information on them
and take special measures to ensure disabled women’s access to legal protection
[14]. The CEDAW Committee acknowledges that the status of women with
disabilities makes them vulnerable to violence, especially sexual
violence.
Similarly, the Convention on the Rights of the Child (CRC) [15]
does not give specific protection to children with disabilities, but does
prohibit discrimination against children on the basis of disability and also
recognises their special needs that require special, appropriate assistance and
care [16]. These provisions should be at the benefit of Mueni and all other
children with disabilities. The CRC, though gender neutral, requires states
to:
“…protect the child from all forms of physical or mental violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation
[17].”
Kenya has ratified CEDAW, and as we wait for the ratification of
the Protocol on the Rights of Women, Mueni can only rely on national legislation
to give her protection against her abuser. The Persons with Disabilities Act
does give access to these rights, but the mechanisms and structures have not yet
been put in place to ensure that these guarantees are enforced. The Kenya
National Commission for Human Rights (KNCHR), [18] has begun to take an active
interest in disability issues. This is important since the institution helps in
providing a bridge between international human rights law and domestic debates.
With the Council for Persons with Disabilities in place, it is hoped that the
enforcement of rights for persons with disabilities, and especially women’s
rights, can be realised.
Monica Mbaru-Mwangi is the Chairperson, Kenya
Union of the Blind, and National Treasurer, United Disabled Persons of
Kenya.
* Please send comments to editor@pambazuka.org or comment online at
www.pambazuka.org
References
1.
Art 24 (1) Children’s Act
2. Art 24 (3.a) Children’s Act
3. Art 24 (3.b)
Children’s Act
4. Section 77 (2) (b) and (f) of the Constitution of Kenya
(1992).
5. UNGA Res. 48/96, 20 December 1993. Available at http://www.un.org/esa/socdev/enable/dissre00.htm
(accessed 5 April 2005). The predecessor of the Standard Rules on Equalisation
of Opportunities for Persons With Disabilities (Standard Rules); World Programme
of. Action Concerning Disabled Persons, UNGA Res. 37/52, 3 December 1982,
available at http://www.un.org/esa/socdev/enable/diswpa00.htm
(accessed 5 April 2005).
6. UN Disability Rights Convention, which has held
four sessions and information available at http://www.pwd.org.au/disabilityconvention/
(accessed 5 April 2005).
7. Section 7 of the Persons with Disabilities Act,
2003.
8. Report of the Director General, International Law Conference,
Geneva, 1981. available at http://www.ilo.org/public/english/bureau/gender
(accessed 6 April 2006)
9. There is no desegregated data on the incidences of
sexual violence on women with disabilities in the Kenya report to CEDAW
Committee submitted in 2000
10. Paragraph 118 United Nations ECOSOC, Report
of the Special Rappoteur on Violence Against Women, E/CN.4/1995/42
11.
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Women in Africa, 2nd Ordinary Sess., Assembly of the Union, adopted July 11,
2003.
12. As of February 17, 2006, Benin, Cape Verde, Comoros, Djibouti,
Gambia, Lesotho, Libya, Malawi, Mali, Mauritania, Mozambique, Namibia, Nigeria,
Rwanda, Senegal, South Africa and Togo have ratified the Protocol.
13.
Protocol is intended to supplement the African Charter, and therefore, will
generally complement rather than conflict with the African Charter.
14.
Committee on the Elimination of Discrimination Against Women, General
Recommendation 18: Disabled Women (10th Sess., 1991) UN Doc HRI/GEN/1/Rev.5
(2001).
15. CRC adopted Nov. 20, 1989, G.A. Res. 44/25, Annex, U.N. GAOR,
44th Sess., Supp. No. 49, at 167, U.N. Doc. A/44/49 (1989) (entered into force
Sept. 2, 1990).
16. Article 2 and 3 of the Convention on the Rights of the
Child.
17. Art. 19(1) of CRC. Article 34 of CRC further requires states to
“protect the child from all forms of sexual exploitation and sexual
abuse.”
18. Section 16, KNCHR Act, 2002. Established in 2002 as a statutory
body Kenya Gazette Supplement No. 22 (Acts No. 1), Nairobi: Government
Printers.
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