Access to Justice for Persons With Disability in Kenya: Interrogating the Adequacy of the Legal Framework
Abstract
Kenya has a robust legal framework on the rights of Persons with Disabilities chiefly comprising
of the Constitution of Kenya, 2010, the United Nations Convention on the Rights of Persons with
Disabilities (UNCRPD) and the Persons with Disabilities Act (PDA). The legal framework is
designed to ensure optimal protection for PWD, with respect to social, economic and political
spheres. However, despite the legal framework, PWD continue to face considerable barriers in
terms of access to justice. The study sought to investigate the legal challenges hindering PWD’s
access to justice. The study made a hypothesis that he Kenya’s legal framework does not guarantee
optimal realization of the right to access to justice for PWD. The study utilized the best practices
approach and doctrinal methodologies. It analyzed the Republic of Korea, the United States of
America and Australia with a view to identifying lessons which Kenya can emulate.
The study revealed that the definitions adopted by the legal framework have ‘individualized and
medicalized' disability in a way that does not highlight issues of justice nor emphasize the rights
of PWD. In addition, even though PDA was enacted in 2003, the government is yet to develop
special regulations to ensure complete operationalization of the Act. The study concludes that these
inadequacies have negative legal implications on the rights of PWD in Kenya, especially their
constitutional right of access to justice. The Republic of Korea, the United States of America and
Australia have established and implemented effective legislative and policy measures that protect
and enhance the rights of PWD whilst also promoting their access to justice. Kenya lags behind in
its legislative and policy framework in enhancing and promoting access to justice by PWD and the
framework should be reviewed to align with the UNCRPD, especially in promoting their access to
justice.
Publisher
University of Nairobi
Rights
Attribution-NonCommercial-NoDerivs 3.0 United StatesUsage Rights
http://creativecommons.org/licenses/by-nc-nd/3.0/us/Collections
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