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.