By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publisher of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*
International human rights law lays down obligations which States are bound to abide by. By becoming parties to international treaties, states assume obligations and duties under international law to respect, to protect and to fulfill human rights. The obligation to respect means that states must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires states to shield individuals and groups from human rights abuses. The obligation to fulfill means that states must take positive action to facilitate the enjoyment of basic human rights.
There are various legal instruments at the international level that seek to provide a guiding legal framework on the minimum standards that must be attained in the domestic laws dealing with the welfare of persons with disabilities so as to ensure that their rights are well entrenched, protected and promoted by the member states. Here, we examine some of these legal instruments. Of particular concern are the international instruments that form part of Kenya’s legal framework on the protection of the rights of PWDs, on the basis of Article 2 (6) of the Constitution of Kenya, 20107, which provides that treaties or conventions ratified by Kenya shall form part of the Law of Kenya.
The Universal Declaration of Human Rights (UDHR)
The UDHR is the main legal instrument that sets down the basic principles guiding the recognition, promotion and protection of the human rights in the world. It informs the setting of standards, laws and institutions for the protection of human rights in States around the world and is always considered to be part of the International Bill of Human Rights. Everyone is entitled to all the rights and freedoms set forth in the Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, it provides that no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, nonself-governing or under any other limitation of sovereignty. PWDs are therefore to be treated as any other person without undue regard to their disability status.
Under the UDHR, everyone has the right to freedom of opinion and expression including the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. The UDHR further provides for the right of all to participate in the governance affairs of their country. In this respect, the UDHR applies to the inclusion of PWDs in Kenya in governance issues. The UDHR provides that everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. The right to education is safeguarded in the UDHR. It provides that such education shall be free and compulsory, at least in the elementary and fundamental stages. It requires that technical and professional education should be made generally available and higher education should be equally accessible to all on the basis of merit.
Relating this to the Kenyan scenario, it is vital that education is guaranteed for all. This strengthens the enabling environment for PWDs hence they can actualize their special abilities. Article 54 of the Constitution of Kenya, 2010 secures the right of PWDs to access educational institutions and facilities in society. Education under the UDHR should be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. General human rights and the most basic freedoms are herein secured. Such security is guaranteed to all humans. In society, PWDs are not to be viewed any differently.
International Covenant on Civil and Political Rights (ICCPR)
This Covenant was enacted for the purposes of promotion of the ideal of free human beings enjoying civil and political freedom. The ICCPR offers rights and prohibitions such as everyone having the inherent right to life. Under the ICCPR, torture is prohibited and so is cruel, inhuman or degrading treatment and slavery. Everyone has the right to liberty and security of person and if a person is to be deprived of their liberty, they should be treated with humanity and respect for the inherent dignity of the human person. The ICCPR provides that everyone has the right to recognition everywhere as a person before the law. PWDs are free human beings who should enjoy their full civil and political rights.
International Covenant on Economic, Social and Cultural Rights (ICESCR)
The ICESCR aims to ensure the protection of economic, social and cultural rights. It recognizes that all peoples have the right of self-determination. This is to enable them freely determine their political status and freely pursue their economic, social and cultural development. Article 2 of the ICESCR places an obligation on each State Party to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. It also obligates them to adopt legislative measures that will facilitate enjoyment of such rights.
Kenya has made commendable progress towards implementation of this, as seen under the current Constitution. Chapter Four of the Constitution of Kenya, 2010 provides for the Bill of Rights and fundamental freedoms that are to be enjoyed by all persons without any discrimination. Indeed, it provides that the Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies. It further provides that the purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.
The Constitution of Kenya, 2010 prohibits either the State or any person from discriminating against any person on any of these grounds including: race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. States parties are to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights. Furthermore, the ICESCR recognizes the right of education to everyone. The empowerment of PWDs through education as advocated by the writer is thus anchored in international law such as the ICESCR.
*This article is an extract from the Article Securing the Realization of Environmental and Social Rights for Persons with Disabilities in Kenya, (2018) Journal of Conflict Management and Sustainable Development Volume 2(1), p. 45. by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Kenya by the Chambers Global Guide 2022.
References
Muigua, K., “Securing the Realization of Environmental and Social Rights for Persons with Disabilities in Kenya, (2018) Journal of Conflict Management and Sustainable Development Volume 2(1), p. 45.