The Pieces of Disability Rights Advocacy in Kenya

From The Practice May/June 2022
A conversation with Elizabeth Kamundia

The Practice interviewed Elizabeth Kamundia, a human rights lawyer working at the intersection of mental health and disability, about her work and advocacy efforts in Kenya.

Since April 2018 until very recently, you were the assistant director at the Kenya National Commission on Human Rights. Could you talk about your work at the Commission and cases or organizing efforts you’ve been involved in that engage with the global disability cause lawyering movement?

Elizabeth Kamundia: The Kenya National Commission on Human Rights is a national human rights institution that is set up in accordance with the Paris Principles. It’s the monitoring agency for the UN Convention on the Rights of Persons with Disabilities in Kenya. Our efforts at the Commission are spread across many types of advocacy, including reviewing and making recommendations to Parliament on the complaints of domestic laws with the CRPD, following up on the implementation of relevant concluding observations from treaty bodies, as well as training and capacity building of policy makers on the UN convention.

There are two cases we worked on at the Commission that I want to focus on: one involved the shackling of people with disabilities and the other on the decriminalization of attempted suicide.

Partnerships have been important for pursuing the case at multiple angles: both from litigation and through parliament.

Rose Ajwang v. the Holy Ghost Coptic Church of Africa was the first case that I worked on when I joined the commission in 2018. A 17-year-old man with a psychosocial disability had been shackled within church premises, and the Commission brought the case against the lead pastor in the church, contending that the church had denied the minor freedom of movement and liberty, and violated his rights to health, education, and freedom from torture and cruel, inhuman, and degrading treatment. We also enjoined the county government and the cabinet secretary for failing to reprimand the pastor and the church, and failing to put in place appropriate measures to address persons with psychosocial disabilities. The court found that the removal of the minor from the school and his confinement at the church amounted to psychological torture. But oddly, it did not consider the act of being shackled itself as torture. And it did not find the government responsible.

The second case I would like to highlight is an ongoing case seeking the decriminalization of attempted suicide in Kenya. In Kenya, section 226 of the Penal Code makes attempted suicide a misdemeanor that’s punishable by imprisonment for a term not exceeding two years, and people with psychosocial disabilities have been disproportionately affected. In this case, our co-petitioner is someone with the lived experience herself, and the case came in after we’d already brought together a civil society stakeholders’ forum on mental health. We’ve found that the Kenya Psychiatric Association has been a really strong partner in this case, as well as academics, like those at Strathmore Law School and Kabarak University, weighing in. And these partnerships have been important for pursuing the case at multiple angles: both from litigation and through parliament. And in general, those collaborations have been really enriching to the case, or at least to the pleadings.

What tools and methods did you deploy in these cases?

Kamundia: In that first case, as a Commission, we recognized that the interplay between litigation and social change is quite complex. We know that winning a case of this nature is one thing, but if the circumstances don’t change in terms of stigma and in terms of the horrendous conditions in which people with mental health conditions find themselves within state mental health facilities, then we will simply have other settings cropping up to provide the missing services or to meet the unmet needs. For this reason, following up on this case, we have been very engaged in policy reform, such as the review of the Mental Health Act of 1989. And in this, we are very much in collaboration with persons with psychosocial disabilities and their representative organizations.

In the second, partnerships and allies have been extraordinarily important. In particular, this work really demonstrates how we can coordinate better with disability rights organizations and those with lived experiences. For instance, we’ve worked with stakeholders on figuring out the best path for social change, exploring the parliamentary route or the judicial route. And because we have so many partners, we can say, “OK, let’s follow both routes. Whoever gets it first we’ll applaud and move on for the good of people with disabilities.”

How do these and similar cases align with the wider disability rights movement’s goals?

Kamundia: The disability rights movement in Kenya tends to be very divided between mental health and disability rights, even though my work lands at the intersection. There is a historical marginalizing of people with mental health conditions, even from within the disability movement. There’s also the fact that people with mental health conditions do not necessarily identify as people with disabilities. I think what needs to happen is a matter of awareness raising. When we engage with people in the mental health movement, we have to say, “Look, to have tax exemptions, to have reasonable accommodation, there are so many things that are in the law that come with the prohibited ground of discrimination on the basis of disability that aren’t as clear if you are saying it’s discrimination on the basis of health status.” So, I think when people begin to see the benefits of it from that angle, we make progress, but we also start to find threads of solidarity. We are all suffering discrimination. We are all facing barriers.

Sometimes we take it for granted that mental health is acknowledged as a disability around the world, even though in many parts of the world, like in Kenya, there’s still a deep division between the communities.

These historical divisions are improving. But you see that when you’re talking about the objectives of the disability rights movement, it’s not very easy to define. Interestingly, in the case of decriminalizing suicide, the stakeholders’ forum that we convened was predominantly made up of people from the background of mental health, and then there was a larger advocacy movement around the Suicide Prevention Day, and so it aligned with a lot of things from the disability rights movement.

Thinking globally, what do you hope individuals around the world take away from your efforts?

Kamundia: It’s clear to me that involving and including people with disabilities throughout the process makes a really huge difference. Our first case was done without the input of people with lived experiences, although our later policy reform efforts have been in concert with disability rights organization. But if we had had a civil society organization of people with mental health conditions or an affidavit from someone with the lived experiences talking about how harmful these practices of shackling are, I think the court might have had a really different perspective. Instead of saying, “Oh, deprivation from education is some form of psychological torture,” they may have seen that also the shackling itself, the physical confinement itself, is torture. You can’t place rights on a hierarchy, but that’s as big a violation as the education piece. It’s so critical to include people with disabilities in these processes.

To make progress, you really need to engage with all the pieces: litigation, policy reform, health care.

I also think sometimes we take it for granted that mental health is acknowledged as a disability around the world, even though in many parts of the world, like in Kenya, there’s still a deep division between the communities. This was part of the problem and the reason that the disability community was not involved in this first case. It was taken up as a human rights case rather than acknowledging that it was a disability rights issue. I think we have a lot to do on raising awareness, particularly among government and state agencies. I think CSOs are largely better, but I’m not sure that all national human rights institutions around the world would approach this issue as a disability rights issue.

I’d still emphasize that litigation is one important piece, but without the other different pieces being fixed and falling into place, we still won’t take the goals of the movement as far as we want to take them. We need a big emphasis on mental health services from a community-based perspective, and the WHO guidance on community mental health services and the QualityRights Initiative provide excellent guidance on what this would look like. We need budgetary allocation toward providing health care and alternative peer support and services in community settings. And, of course, we need law reform, like the work we’re doing around the Mental Health Act. And we need to bring these issues up not just before the CRPD committee but also before the committee against torture. To make progress, you really need to engage with all the pieces.

Elizabeth Kamundia is a legal practitioner in human rights and currently working as the assistant director at the Kenya National Commission on Human Rights. She was previously a consultant on human rights with Users and Survivors of Psychiatry–Kenya and the Kenya Association of the Intellectually Handicapped and holds a doctorate in law from the University of Pretoria. She is an advocate of the High Court of Kenya. Starting in May 2022, she will join Human Rights Watch as the deputy director of the Disability Rights Division.


The Making of Lawyers’ Careers: Inequality and Opportunity in the American Legal Profession

Special Event
April 9, 2024 - April 9, 2024 December 4, 2023 - December 4, 2023 ET