GROUP 8

UNIT: INTERNATIONAL HUMAN RIGHTS LAW

UNIT CODE: LPR 401
CONTINOUS ASSESSMENT TEST 2
LECTURER:WAMBUI NJOGU
NAME ADMISSION NO. SIGNATURE

OSUKA MARY L95/1777/2019

KORIR CYNTHIA L95/1803/2019
NGICHIRI LEWIS L95/1769/2019
VICTOR KIMANI L95/1798/2019
ODHIAMBO JIM L95/1824/2019
MSAFARI KENNEDY L95/1758/2019
FLORENCE CHELANGAT L95/1805/2019
IMELDA AKOTH L95/1775/2019
EDNA LENAH L95s/13065/2019
NYABOKE RASUNGU L95s/13008/2019
EMILY MUSILA L95s/13066/2019
TABLE OF CONTENTS
1.0 HISTORICAL DEVELOPMENT OF THE CONVENTION ON THE RIGHTS OF PERSONS
WITH DISABILITIES..............................................................................................................................3
1.1 PRICIPLES OF THE CONVENTION ON THE RIGHTS OF PERSONS WITH
DISABILITIES..........................................................................................................................................5
2.0 RIGHTS ENCOMPASSED IN THE CONVENTION ON THE RIGHTS OF PERSONS WITH
DISABILITIES..........................................................................................................................................5
2.1 Right to equality and non−discrimination..........................................................................................5
2.2 Right of children and women with disabilities...................................................................................6
2.3 Raising awareness..............................................................................................................................7
2.4 Accessibility......................................................................................................................................7
2.5 Right to life........................................................................................................................................9
2.6 Situations of risk and humanitarian emergencies...............................................................................9
2.7 Equal recognition before the law.......................................................................................................9
2.8 Participation in Cultural Life, Recreation, Leisure and Sport..........................................................10
2.9 The Right to Participate in Political and Public Life........................................................................11
3.0 Access to Justice..............................................................................................................................11
3.1 Liberty and Security of Person........................................................................................................12
3.2 Freedom from torture or cruel,inhuman or degrading treatment or punishment..............................13
3.3 Freedom from exploitation,violence and abuse...............................................................................14
3.0 IMPLEMENTATION /MONITORING OF ENFORCEMENT OF THE CONVENTION....15
4.0 IMPLEMENTATION OF THE RIGHTS OF PERSONS WITH DISAILITIES IN THE
REGIONAL LEVEL...........................................................................................................................16
5.0 IMPLEMENTATION OF THE CONVENTION IN KENYA.......................................................18
REFERENCES........................................................................................................................................19
STATUTES AND CONVENTIONS.....................................................................................................19
JOURNALS..........................................................................................................................................19
CASE LAWS........................................................................................................................................19
1.0 HISTORICAL DEVELOPMENT OF THE CONVENTION ON THE RIGHTS OF
PERSONS WITH DISABILITIES
The Convention on the rights of people with disabilities was not the first convention to cater for
the rights but it offered more protection that other forms of conventions1. The United Nations
addressed the issue of human rights and disability several times prior to negotiating and adopting
this Convention. In 1982, the General Assembly adopted the World Programme of Action
concerning Disabled Persons, which promotes the full participation and equality of persons with
disabilities in social life and development in all countries, regardless of their level of
development2. The General Assembly proclaimed the decade from 1983 to 1992 “the United
Nations Decade of Disabled Persons” and encouraged Member States to implement the World
Programme of Action concerning Disabled Persons during that period.

During the first major international review of the implementation of the World Programme of
Action concerning Disabled Persons, held in Stockholm in 1987, participants recommended
drafting a convention on the human rights of persons with disabilities. Despite various initiatives,
including proposals made by the Governments of Italy and Sweden, and the Commission for
Social Development’s Special Rapporteur on Disability, and strong lobbying from civil society,
the proposition did not win enough support to lead to the negotiation of a new treaty3.

In 1991, the General Assembly adopted the “Principles for the protection of persons with mental
illness and the improvement of mental health care,” known as the MI Principles. The MI
Principles established standards and procedural guarantees and provided protection against the
1
Mégret, Frédéric. “The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?”
Human Rights Quarterly, vol. 30, no. 2, 2008, pp. 494–516. JSTOR,
http://www.jstor.org/stable/20072851<Accessed 10 November 2022>
2
General Assembly Resolution 37/53 of 3 December 1892
3
https://www.un.org/development/desa/disabilities/resources/handbook-for-parliamentarians-on-the-
convention-on-the-rights-of-persons-with-disabilities/chapter-two-the-convention-in-detail.html#fn1<Accessed on
10 November 2022>
most serious human rights abuses that might occur in institutional settings, such as misuse or
inappropriate use of physical restraint or involuntary seclusion, sterilization, psycho-surgery, and
other intrusive and irreversible treatment for mental disability. While innovative at the time,
today the value of the MI Principles is disputed.

In 1993, the General Assembly adopted the “Standard Rules on the Equalization of Opportunities
for Persons with Disabilities” (the Standard Rules). The Standard Rules intended to ensure that
“girls, boys, men and women with disabilities, as members of their societies, may exercise the
same rights and obligations as others,” and required States to remove obstacles to equal
participation of persons with disabilities in society4. The Standard Rules became the principal
United Nations instrument guiding State action on human rights and disability, and constituted
an important reference in identifying State obligations under existing human rights instruments.
Many countries have based their national legislation on the Standard Rules. Although a Special
Rapporteur monitors implementation of the Standard Rules at the national level, the Standard
Rules are not legally binding and do not protect the rights of persons with disabilities as
comprehensively as does the new Convention.

International human rights instruments promote and protect the rights of everyone, including
persons with disabilities.The Universal Declaration of Human Rights, the International Covenant
on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political
Rights together form what is known as the International Bill of Human Rights. These three
documents together recognize the civil, cultural, economic, political and social rights that are
inalienable to every human being; thus, the International Bill of Human Rights recognizes and
protects the rights of persons with disabilities, even if those persons are not explicitly
mentioned. 

The Convention on the Rights of the Child is the first human rights treaty to explicitly prohibit
discrimination against children on the basis of disability. It also recognizes the right of children
with disabilities to enjoy a full life and to have access to special care and assistance to achieve
this end.

Prior to the adoption of the new Convention, existing human rights treaties had not
comprehensively addressed the protection of the rights of persons with disabilities; and persons
4
Ibid
with disabilities had underutilized the various protection mechanisms under those treaties. The
adoption of the Convention and the establishment of new human rights protection and
monitoring mechanisms should thus significantly improve the protection of the rights of persons
with disabilities.

1.1 PRICIPLES OF THE CONVENTION ON THE RIGHTS OF PERSONS WITH

DISABILITIES
These principles are what states are supposed to adhere to when implementing the rights of
persons with disabilities;

a. Respect for inherent dignity, individual autonomy including the freedom to make one's
own choices, and independence of persons

b. Non-discrimination

c. Full and effective participation and inclusion in society

d. Respect for difference and acceptance of persons with disabilities as part of human
diversity and humanity

e. Equality of opportunity

f. Accessibility

g. Equality between men and women

h. Respect for the evolving capacities of children with disabilities and respect for the right
of children with disabilities to preserve their identities.

2.0 RIGHTS ENCOMPASSED IN THE CONVENTION ON THE RIGHTS OF PERSONS

WITH DISABILITIES
2.1 Right to equality and non−discrimination
The purpose of Article 5 is to ensure the exercise and enjoyment by persons with disabilities of
all human rights without any discrimination, and to guarantee equality of opportunities for
persons with disabilities. Article 5 has a broad and far-reaching remit. The duty to prohibit
discrimination and to provide reasonable accommodation contained in Article 5 spans all human
rights in the convention5. Member states must therefore ensure that the prohibition of

5
Convention on the Rights of Persons with Disabilities, Article 5
discrimination, and the duty to accommodate, are implemented in numerous fields, including in
the context of employment, education, the provision of healthcare, and the supply of services.
Article 5 of the convention is broken into four sub paragraphs, each of which deals with a
different aspect of the equality/non-discrimination norm. On the whole, Article 5 emphasizes the
fact that equality for persons with disabilities requires more than prohibition of discrimination. It
involves the development of strategies to underpin the participation and inclusion of persons
with disabilities in society on an equal basis with others. This entails the adoption of positive
measures to ensure that persons with disabilities are afforded truly equal opportunities.

2.2 Right of children and women with disabilities

Article 6 and 7 of the convention prohibits discrimination on the basis of gender and disability. It
is the 1st binding equality provision in international human rights law to address multiple
discrimination explicitly. In addition to Article 6, the Preamble of the convention emphasizes the
need for gender mainstreaming in all efforts by States to implement the convention.
The convention seeks to tackle multiple discrimination, which refers to situations whereby
‘individuals, or groups of individuals, face discrimination on more than one of the prohibited
grounds’ and it often produces ‘compounding or aggravating effects’. In addition to Article 6 of
the convention, the Preamble of the convention refers to “the difficult conditions faced by
persons with disabilities who are subject to multiple or aggravated forms of discrimination on the
basis of race, colour, sex, language, religion, political or other opinion, national, ethnic,
indigenous or social origin, property, birth, age or other status. The article also emphasises that
in all actions concerning children with disabilities, the best interests of the child shall be a
primary consideration6. Article 7 also obligates States Parties to ensure that children with
disabilities have the right to express their views freely on all matters affecting them, their views
being given due weight in accordance with their age and maturity, on an equal basis with other
children, and to be provided with disability and age-appropriate assistance to realize that right7.

2.3 Raising awareness

Article 8 provides that States Parties shall undertake to adopt immediate, effective and
appropriate measures8:
6
Convention on the Rights of Persons with Disabilities, Article 6
7
Convention on the Rights of Persons with Disabilities, Article 7
8
Convention on the Rights of Persons with Disabilities,Article 8
a) To raise awareness throughout society, including at the family level, regarding persons with
disabilities, and to foster respect for the rights and dignity of persons with disabilities;

b) To combat stereotypes, prejudices and harmful practices relating to persons with disabilities,
including those based on sex and age, in all areas of life;

c) To promote awareness of the capabilities and contributions of persons

These measures therefore may include

a) Initiating and maintaining effective public awareness campaigns designed to: nurture
receptiveness to the rights of persons with disabilities,promote positive perceptions and greater
social awareness towards persons with disabilities and to promote recognition of the skills,
merits and abilities of persons with disabilities, and of their contributions to the workplace and
the labour market;

b) Fostering at all levels of the education system, including in all children from an early age, an
attitude of respect for the rights of persons with disabilities;

c) Encouraging all organs of the media to portray persons with disabilities in a manner consistent
with the purpose of the present Convention;

d) Promoting awareness-training programmes regarding persons with disabilities and the rights
of persons with disabilities.

2.4 Accessibility
Article 9 on the Convention on the Rights of Persons with Disabilities stipulates that persons
with disability shall enjoy accessibility.9 This article envisages the enjoyment of accessibility by
persons with disabilities on a wide range of aspects and fields, legal, administrative and
institutional. This includes access to physical and infrastructural resources, information and
communications and its technological aspects and to services by public facilities in rural and
urban areas. This article obligates parties to develop, promulgate and monitor the implementation
of minimum standards and guidelines for the accessibility of facilities and services open or
provided to the public, To ensure that private entities that offer facilities and services which are
open or provided to the public take into account all aspects of accessibility for persons with

9
Convention on Rights of Persons with Disabilities, Article 9
disabilities, to provide training for stakeholders on accessibility issues facing persons with
disabilities and to provide in buildings and other facilities open to the public signage in Braille
and in easy to read and understand forms.10 This provision creates a duty on states to ensure that
the persons living with disabilities live a quality life like other citizens, by ensuring that facilities
and services are suited to the needs of such persons. It also creates an obligation on the states to
ensure that they provide forms of live assistance and intermediaries, including guides, readers
and professional sign language interpreters, to facilitate accessibility to buildings and other
facilities open to the public, promote other appropriate forms of assistance and support to
persons with disabilities to ensure their access to information, promote access for persons with
disabilities to new information and communications technologies and systems, including the
Internet, promote the design, development, production and distribution of accessible information
and communications technologies and systems at an early stage, so that these technologies and
systems become accessible at minimum cost.11

These rights have been promoted in the world at large by many states. In Africa, the rights have
also been backed by the African Charter on Human and Peoples Rights and the adopted protocol;
The African disability protocol. In Kenya the Constitution provides that any person with any
disability is entitled to access educational institutions and facilities for persons with disabilities
that are integrated into society to the extent compatible with the interests of the person,
reasonable access to all places, public transport and information, use sign language, Braille or
other appropriate means of communication and access materials and devices to overcome
constraints arising from the persons disability.12 The constitution of Kenya is seen to not only
promote the rights of persons with disabilities but also to implement these rights.13

2.5 Right to life

Article 10 of the Convention on the Rights of Persons with Disabilities stipulates the states
affirmation that every human being has the inherent right to life and shall take all necessary
measures to ensure its effective enjoyment by persons with disabilities on an equal basis with
others.14 This article envisages that persons with disabilities enjoy the right to life just like others

10
Ibid
11
Ibid
12
Constitution of Kenya 2010,Article 54
13
Ibid
14
Convention on Rights of persons with Disabilities,Article 10
and creates a duty upon states to implement it. The right to life is recognized by the international
community and individual states as a fundamental right. In Africa the right to life is provided as
a constitutional right in many states for example, South Africa, Uganda, Tanzania, Nigeria. In
Kenya, it is provided under article 26 of the constitution.15 This has been upheld by courts as
seen in the landmark South African case of State V Makwanyane in the Constitutional Court of
South Africa where the court held that the right to life and dignity are most important of all
rights.16

2.6 Situations of risk and humanitarian emergencies

Article 11 of the Convention on the Rights of Persons with Disabilities stipulates that shall take,
in accordance with their obligations under international law, including international humanitarian
law and international human rights law, all necessary measures to ensure the protection and
safety of persons with disabilities in situations of risk, including situations of armed conflict,
humanitarian emergencies and the occurrence of natural disasters.17 This provision obligates
states to ensure that the welfare of persons with disabilities is upheld in times of distress or
unprecedented catastrophic events. This provision seeks to ensure that such persons with
disabilities are protected from the vagaries of nature during emergency situations.

The enjoyment of this right requires the utilization of available resources to ensure that the
welfare of persons living with disabilities is guaranteed in case of occurrence of adverse
unprecedented events such as natural disasters.

2.7 Equal recognition before the law

Article 12 of the Convention on the Rights of Persons with Disabilities provides for equal
recognition before the law. Under this article, states affirm that persons with disabilities shall
have recognition everywhere as persons before the law and persons with disabilities enjoy legal
capacity on an equal basis with others in all aspects of life and take appropriate measures to
provide access by persons with disabilities to the support they may require in exercising their
legal capacity.18 It requires that the state should ensure that measures that relate to the exercise of
legal capacity respects the will of the person and are free from conflict of interest and undue

15
Constitution of Kenya 2010,Article 26
16
S V Makwanyane and Another[1995] ZACC 3
17
Convention on the Rights of Persons with Disabilities,Article 11
18
Convention on the Rights of Persons with Disabilities,Article 12
influence19 . This ideology has been embraced all over the world by states by providing for
equality in the social, economic and political fields. In Kenya, persons with disabilities right to
equality is promoted, protected and stipulated by the Constitution of Kenya under article 27
which provides that every person is equal before the law and has the right to equal protection and
equal benefit of the law. It obligates the state not to discriminate directly or indirectly against any
person on any ground including disability.

2.8 Participation in Cultural Life, Recreation, Leisure and Sport

Persons with disabilities have the right to take part on an equal basis with others in cultural life in
order for the Convention to be fully implemented. This right requires examination of whether the
measures put in place enable persons with disabilities to:

a)enjoy access to cultural materials in accessible formats

b)enjoy access to television programmes, films, theatre and other cultural activities in accessible
formats

c)enjoy access to places of cultural performances or services, such as theatres, museums,

cinemas, libraries and tourism services, and, as far as possible, enjoy access to monuments and
sites of national cultural importance20.

d)have the opportunity to develop and utilise their creative, artistic and intellectual potential, not
only for their own benefit, but also for the enrichment of society21

2.9 The Right to Participate in Political and Public Life

This right requires, among other things, the election process to ensure election is administered in
a manner that is friendly to persons with disabilities. Election materials should be provided in
accessible formats to persons with different kinds of disabilities. For instance, the materials
should be available in Braille form and interpreters be provided. Further, this right requires the
examination of whether the election rooms and polling centers are accessible to all persons with
different kinds of disabilities; whether the electoral law excludes some persons with disabilities

19
Convention on the Rights of Persons with Disabilities,Article 12
20
Article 30(1), CRPD
21
Article 30(2), CRPD
from the right to vote or to be elected and whether the electoral law allows persons with
disabilities, who so decide, to cast their vote supported by a person of their own choice.22

3.0 Access to Justice

The right to facilitate access to justice for the persons with disabilities is made an obligation to
states by the convention.23 The article seeks to guarantee the right to access to justice which is
indispensable to democratic governance and the rule of law as well as ensuring that inequality
and discrimination is eradicated towards persons with disability in the justice sector. In
recognizing that access to justice is fundamental for the fulfillment and enjoyment of all human
rights it seeks to ease some of the barriers that persons with disability face24.

Article 13 of the convention points out some of the restrictions which can cause restrictions in
access to justice for the people with disability and obligates states to put through provisions of
procedural and age-appropriate accommodation to enable them participate both directly and
indirectly. In the justice system, persons with disabilities are often considered to be unworthy of,
unable to benefit from or even likely to be harmed by due process protection provided to all
other citizens.

While the design of courtrooms and the formal and technical language and procedures used in
legal proceedings alienate anyone not familiar with them, this experience of alienation is
exacerbated for persons with disabilities by the physical and other barriers25. The most visible
barriers are access to architectural elements such as ramps that restrict persons with disability
from accessing and playing part in court the same way other people do. In Paul Pkiach vs AG26
the court determined that physical infrastructure in Milimani law courts hinders people with
disability from accessing the court. Such infrastructural elements such as lack of ramps were
established not to be accommodative to persons with disability as guaranteed by article 1327.

22
International Disability Alliance, ' Guidance Document', 2010,52 available at
https://www.disability.co.uk/sites/default/files/resources/CRPD%20Guidance%20Document-English.pdf
23
Convention on the right of persons with disability
24
<https://www.un.org/disabilities/documents/convention/convoptprot-e.pdf > accessed on 10/29/2022
25
<http://erepository.uonbi.ac.ke/bitstream/handle/11295/160382/Wachira_Access%20to%20Justice%20for
%20Persons%20With%20Disability%20in%20Kenya%20%20%20Interrogating%20the%20Adequacy%20of%20the
%20Legal%20Framework.pdf?sequence=1> accessed on 10/30/2022
26
Paul Pkiach Anupa and another V AG and another (2012) eKLR
27
Convention on the right of persons with disability
Article 13(2) of the same convention also obligates States Parties to promote appropriate training
for those working in the field of administration of justice, including police and prison staff and
this training is meant to ensure that the people will be able to help the persons with disability to
access justice in an easy way. They are trained to support persons with disabilities to understand
and make informed choices, making sure that things are explained and talked about in ways that
they can understand and that appropriate accommodations and support are provided.

3.1 Liberty and Security of Person

Article 14 obligates states to ensure that persons with disabilities are on the same footing with
others when it comes to enjoyment of the right to liberty and security of person and that they are
not deprived of this right arbitrary and unlawfully.in case there is any deprivation of the right to
liberty states are obligated to ensure that any deprivation of liberty is in conformity with the law,
and that the existence of a disability shall in no case justify a deprivation of liberty28.

It is also an obligation of a state party to ensure that whenever persons with disability are
deprived of their liberty through any process, the same is done on equal basis with other persons
that are entitled to the guarantees in accordance with international human rights law and are to be
treated as per the objectives and principles of the convention such as reasonable
accommodation29.

The convention in essence describes the right to liberty of person and the right to security of
person to be in two aspects of the same right, which are physical liberty being the substantive
aspect of the right whereas security is seen as the means of protection or the procedural aspect.
The Committee on the Rights of Persons with Disabilities is therefore empowered by article 14
to question governments on a broad range of potential violations, including civil commitment
proceedings, compulsory medical treatment, and conditions inside medical and detention
facilities30.

Article 14 of the Convention can also be interpreted as a non-discrimination provision because it

specifies the scope of the right to liberty and security of the persons with disabilities, prohibiting
all discrimination based on disability in the exercise of that right. And thus, it directly relates to

28
Convention on the right of persons with disability, article 14
29
Ibid , article 14(2)
30
< https://opil.ouplaw.com/view/10.1093/law/9780198810667.001.0001/law-9780198810667-chapter-15 >
accessed on 10/30/2022
the purpose of the Convention, which is to promote, protect and ensure the full and equal
enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to
promote respect for their inherent dignity31.

3.2 Freedom from torture or cruel,inhuman or degrading treatment or punishment

Article 15 of the United Nations convention on the rights of person with disabilities guarantees
the Freedom from torture or cruel, inhuman or degrading treatment or punishment.32 The article
puts an obligation to states that no one should be subjected to torture or to cruel, inhuman or
degrading treatment or punishment. It lays particular emphasis that no person should be
subjected without his or her free consent to medical or scientific experimentation33.

The prohibition of consensual medical or scientific experimentation protects persons with

disabilities from serious abuse and violations of their right to physical and mental integrity,
notably in relation to experimentation or treatments that are directed to correct and alleviate
particular impairments34.other forms of degrading treatment includes involuntary commitment to
psychiatric institution, use of violence against people with disabilities and poor conditions
detentions.

For example, the application of this article has been seen to protect disabled people from torture
and inhumane treatment like In Price v. United Kingdom35, it was found that the United
Kingdom violated the rights of a woman with a disability who had been held in detention and
was allegedly forced to sleep in her wheelchair, could not reach emergency buttons and light
switches, and was unable to use the toilet. She was lifted onto a toilet by a female prison officer
but was left there for over three hours until she agreed to allow a male nursing officer to assist
her. The Court held that these conditions amounted to degrading treatment.

The state parties are required to take all effective legislative, administrative, judicial or other
measures to prevent persons with disabilities who are to be treated on an equal basis with others,
from being subjected to torture or cruel, inhuman or degrading treatment or punishment36. The

31
< https://covenantswatch.org.tw/wp-content/uploads/2019/12/A7255-Annex.pdf > accessed on 10/30/2022.
32
Convention on the right of persons with disability, article 15.
33
Ibid, article 15(1).
34
<https://asksource.info/sites/all/modules/pubdlcnt/pubdlcnt.php?fid=2893 > accessed on 10/29/2022
35
Price V United Kingdom.
36
Ibid, article 15(2).
Legislation to be enacted by states should cover all forms of torture and ill treatment, including
normalized practices that violate the physical and mental integrity of persons with disabilities37.

3.3 Freedom from exploitation,violence and abuse

Article 16 of the United Nation Convention on the Rights of People with Disability guarantees
them freedom from exploitation, violence and abuse. It obligates states parties to take all
appropriate legislative, administrative, social, educational and all other possible measures to
ensure protection of persons with disabilities in their home or outside from all forms of
exploitation, violence and abuse, including their gender-based aspects38. The legislations enacted
should cover all forms of exploitation, violence and abuse including all the practices that have
been normalized that mete exploitation, violence and abuse towards the persons with disabilities.

States Parties have also been obligated to take all appropriate measures that will prevent any
forms of exploitation, violence and abuse to persons with disabilities by making sure that
appropriate forms of gender-sensitive and age-sensitive assistance and support is given for
persons with disabilities and their families which may include through the provision of
information and education on how to avoid, recognize and report instances of exploitation,
violence and abuse39.

Similarly, states have been obligated to ensure that monitoring of all forms of exploitation,
violence and abuse towards persons with disabilities in all the facilities and programs meant to
serve them will be done by independent authorities for efficiency40. Such facilities may include
mental hospitals and psychiatric institutions.

Pursuant to article 16(4) States Parties are obligated to take all appropriate measures to promote
the recovery both physical, cognitive and psychological of the persons with disabilities, to
promote their rehabilitation and social reintegration when they become victims of any form of
exploitation, violence or abuse which may be done by provision of protection services. And to
make sure that the recovery and reintegration will take into account gender-specific and age-
specific needs and be done in an environment that fosters the health, welfare, self-respect,
dignity and autonomy of the person41.
37
< https://www.ohchr.org/sites/default/files/article-15-and-17-indicators-en.pdf > accessed on 10/30/2022.
38
United Nation Convention on the Rights of People with Disability, Article 16(1).
39
Ibid, Article 16(2)
40
Ibid, Article 16(3)
41
Ibid, Article 16(4)
An obligation is made for States Parties to put in place effective legislation and policies to ensure
that instances of exploitation, violence and abuse against persons with disabilities are identified,
investigated and prosecuted. The legislations may include women-focused and child-focused
legislation and policies42.

3.0 IMPLEMENTATION /MONITORING OF ENFORCEMENT OF THE

CONVENTION
The monitoring and enforcement mechanisms is set out in the convention under Article 33 for
national implementation and Article 34 sets out a committee which has responsibility to interpret
the convention.

Statistics and Data Collection

Article 31 of the Convention of Rights of Persons with Disabilities provides that States Parties
will undertake to collect appropriate information, including statistical and research data, to
enable them to formulate and implement policies to give effect to the present Convention. The
process of collecting and maintaining this information shall:

a) Comply with legally established safeguards, including legislation on data protection, to ensure
confidentiality and respect for the privacy of persons with disabilities;

b) Comply with internationally accepted norms to protect human rights and fundamental
freedoms and ethical principles in the collection and use of statistics.

Further, the information collected in accordance with this article shall be disaggregated, as
appropriate, and used to help assess the implementation of States Parties’ obligations under the
present Convention and to identify and address the barriers faced by persons with disabilities in
exercising their rights. States Parties shall assume responsibility for the dissemination of these
statistics and ensure their accessibility to persons with disabilities and others.

International cooperation

States Parties recognize the importance of international cooperation and its promotion, in support
of national efforts for the realization of the purpose and objectives of the present Convention,
and will undertake appropriate and effective measures in this regard, between and among States
and, as appropriate, in partnership with relevant international and regional organizations and civil
42
Ibid, Article 16(5).
society, in particular organizations of persons with disabilities. Such measures could include,
inter alia:43

(a) Ensuring that international cooperation, including international development

programmes, is inclusive of and accessible to persons with disabilities;

(b) Facilitating and supporting capacity-building, including through the exchange and
sharing of information, experiences, training programmes and best practices;

(c) Facilitating cooperation in research and access to scientific and technical knowledge;

(d) Providing, as appropriate, technical and economic assistance, including by facilitating

access to and sharing of accessible and assistive technologies, and through the transfer of
technologies.

The provisions of this article are without prejudice to the obligations of each State Party to fulfil
its obligations under the present Convention.

4.0 IMPLEMENTATION OF THE RIGHTS OF PERSONS WITH DISAILITIES IN THE

REGIONAL LEVEL

AFRICAN CHARTER

The African Charter contains several prohibited grounds of discrimination in article 2 such as
race, ethnic group, colour, sex, language, religion, political or any other opinion, national and
social origin, fortune, birth or any other status. The African Charter does not specifically address
disability as a prohibited ground of discrimination, save for the inclusion of an open ended
category in the form of ‘other status’.Thus non-discrimination on the basis of disability could be
read into the category of ‘other status’, and also based on the wording of the article which
prohibits discrimination of ‘any kind’, which should be read to include disability.Since the
interpretation of the African Charter makes use of inspiration drawn from international human
rights law,Committee on ESCR’s understanding of disability as falling within ‘other status’ can
be applied here.

43
Article 32, CRPD
 Apart from article 2, the most explicit reference to disability first appears in article 16 which
provides for every individual’s right to enjoy the best attainable state of physical and mental
health. It further enjoins state parties to ensure the health of their people and make available
medication when they are sick.

The Purohit Communication44 offered the only opportunity under the African regional system
for disability rights to be deliberated upon. The case centred around violation of articles 2, 3, 5,
7(1)(a) and (c), 13(1), 16 and 18(4) of the African Charter involving some mental health patients
in the Gambia. The Purohit Communication is relevant to disability rights in that it deliberated
on the rights of PWDs within the general rubric of fundamental rights and freedoms under the
African Charter. In summary, the facts of the communication involved a section of the
community whose human rights are not considered top of the list in African human rights
discourse – mental patients. The violations alleged in the communication related to the
internment of mental health patients in a psychiatric hospital in the Gambia and the
communication was submitted by a disability rights advocate on behalf of existing and future
patients detained in the hospital.The communication alleged that the Lunatics Detention Act of
1917 was outdated and contained no provisions on safeguards during diagnosis, certification and
detention of the patient. It further alleged that the Act failed to provide for the patients’ consent
to treatment or subsequent review of continued treatment and there was no provision for a patient
to seek compensation if his or her rights were violated.

The Commission looked at the nature of people that would be detained as voluntary or
involuntary patients under the Gambian Lunatics Detention Act and asked whether or not these
patients could access legal procedures available without legal aid. In other words, the
Commission took into account the lack of legal aid offered to this category of persons, and
concluded that any remedies under the Gambian courts would not be realistic.Because the
remedies were not realistic for this category of people and therefore not effective, the African
Commission declared the communication admissible.

44
Purohit Anor V Gambia (Communication N0. 241/2001) [2003] ACHPR 49
5.0 IMPLEMENTATION OF THE CONVENTION IN KENYA
The Constitution of Kenya,2010 recognizes that the treaty of Kenya recognizes treaties ratifies
by Kenya as part of the sources of law45.The treaty are brought into force through Treaty Making
and Ratification Act46.The Constitution of Kenya, 2010 has some progressive provisions towards
the realisation of the political rights of persons with disabilities. Article 54(2) enjoins the State to
ensure progressive realisation of the principle that at least five percent of the members of the
public in elective and appointive bodies are persons with disabilities. The Constitution creates
special seats for persons with disabilities in the Senate and County Assembly and obligates
parliament to enact legislation to promote the representation in Parliament of persons with
disabilities.47

The Persons with Disabilities Act provides a bundle of rights to persons with disabilities which
help them participate in elections and form organisations. First, all persons with disabilities have
the right to participate in political and public life. In exercising this right, persons with
disabilities are entitled to be assisted by persons or their choice in voting in presidential,
parliamentary and civic elections.48 Once such assistance has been sought, the person who
undertakes to render assistance must do so strictly in accordance with the instructions of the
voter49 and must first bind themselves, in the prescribed form, to comply with the instructions. 50
It is an offence to contravene this requirement.51

45
Constitution of Kenya 2010,Article 2(6)
46
Treaty Making and Ratification Act,Act No.45 of 2012
47
Constitution of Kenya 2010,Article 100(b)
48
Persons with Disabilities Act, 2003,Section 29(1)
49
Ibid,Section 29(2)
50
Ibid,Section 29(3)
51
Ibid,Section 29(4)
REFERENCES
STATUTES AND CONVENTIONS
African Charter on Human and Peoples Rights
Constitution of Kenya,2010
Convention on the Rights of Persons with Disabilities
Convention on the Rights of the Child
1982 World Programme of Action concerning Disabled Persons
1993 Standard Rules on the Equalization of Opportunities for Persons with Disabilities(the
Standard Rules)
JOURNALS
Mégret, Frédéric. “The Disabilities Convention: Human Rights of Persons with Disabilities or
Disability Rights?” Human Rights Quarterly, vol. 30, no. 2, 2008, pp. 494–516. JSTOR,
http://www.jstor.org/stable/20072851<Accessed 10 November 2022>

General Assembly Resolution 37/53 of 3 December 1892

https://www.un.org/development/desa/disabilities/resources/handbook-for-parliamentarians-on-
the-convention-on-the-rights-of-persons-with-disabilities/chapter-two-the-convention-in-
detail.html#fn1<Accessed on 10 November 2022>

CASE LAWS
Purohit Communication ;Purohit Anor V Gambia (Communication N0. 241/2001) [2003]
ACHPR 49
S V Makwanyane and Another[1995] ZACC 3
Paul Pkiach Anupa and another V AG and another (2012) Eklr
Price V United Kingdom [2001] ECtHR