stakeholders such as parents are not empowered to participate in the education of their children.
teachers that are expected to teach learners who are Deaf, the situation is most likely to be worse with parents because they are not exposed to SL.
Parental participation in the education of their children can be inhibited by a language barrier. Based on the results of this study, the Ministry of General Education in Zambia through schools should develop a deliberate policy to provide SL lessons to parents of Deaf children. This is possible through home visit SL lessons at agreed times or by organising evening classes. This kind of initiative means using the already available specialised human resources in schools (specialised teachers). Another strategy would be to identify parents with Deaf children and invite them to attend SL classes at schools. SL videos or CDs should be developed and distributed to parents to be able to learn SL on home television. The use of videos and social platforms to learn SL can also be used in the Zambian context if parents are given support to meet internet costs. Non-Governmental Organisations, the church and other disability interested groups can help to train families of Deaf children in SL. By providing support to parents through SL lessons, the realisation of the inclusion would be achieved.
Further, the attainment of the Sustainable Development Goal (SDG) number 4 on inclusiveness and lifelong learning by 2030 may be realised as Deaf children will get more involved in education.
101
Shirley Genga
*
Summary
The right to live independently and to be included in the community is especially important for persons with psychosocial disabilities as they often find themselves isolated from the community. This paper will delve into what the right to live independently in the community means for persons with psychosocial disabilities.
Specifically, it will discuss the link between the right to work and employment, and the right to live independently and in the community. In fact, it will make the argument that if the Kenyan legal framework does not adequately protect the right of persons with psychosocial disabilities to work and employment, then it has failed to protect the right of persons with disability to live independently and to be included in the community. In order to make a determination, this paper will engage in a critical analysis of the Kenyan legal framework on the right to work.
1 Introduction
The history of persons with disability across the world has been one of segregation, isolation and exclusion from full participation in society.1 They have been locked in institutions or in their homes, banned by laws or
1 M Berghs et al ‘Do disabled people need a stronger social model: A social model of human rights?’ (2019) 34 Disability & Society 1034; CRPD Committee General Comment 5: Article 19: Living independently and being included in the community (2017) UN Doc CRPD/C/GC/5 dated 27 October 2017 para 1.
5
C HAPTER
T
HELINK BETWEEN THERIGHTTO LIVEINDEPENDENTLYAND TOBE INCLUDEDIN THECOMMUNITYFOR PERSONSWITHPSYCHOSOCIAL DISABILITY,
ANDTHE RIGHTTOWORK AND EMPLOYMENT: A
CRITICAL ANALYSIS OFK
ENYANLAW* LLB (University of Nairobi); LLM in Public International Law (University of Nairobi);
PhD student (The University of the Witwatersrand); Assistant lecturer (Jomo Kenyatta University of Agriculture and Technology).
S Genga ‘The link between the right to live independently and to be included in the community for persons with psychosocial disability, and the right to work and employment: A critical analysis of Kenyan law’
(2020) 8 African Disability Rights Yearbook 101-123 http://doi.org/10.29053/2413-7138/2020/v8a5
culture from going out, and routinely denied full citizenship.2 Basically, persons with disability are denied from taking part in community life.3
The effects of institutionalisation and exclusion have been devastating, not just on persons with disability, but also to their families and communities.4 Persons with disability have not only become increasingly invisible to society,5 but social exclusion perpetuates dependency and thus interference with individual freedoms.6 This has resulted in persons with disability being denied their personal and individual choice and control across all areas of their lives. In fact, many have been presumed to be unable to live independently in their self-chosen communities.7
Worth noting, is that psychosocial disabilities are regarded as one of the most stigmatised of all disabilities,8 and thus the segregation and isolation they experience is magnified.9 This paper will use the term psychosocial disabilities to refer to both common and severe mental illness.10 In fact, persons with psychosocial disabilities are amongst the
2 L Mladenova ‘The right to live independently and be included in the community:
Addressing barriers to independent living across the globe ‘European Network on Independent Living (2017) http://enil.eu/wp-content/uploads/2017/06/The-right-to- live-independently_FINAL.pdf (accessed 10 March 2020); E Kamundia ‘Choice, support and inclusion: Implementing article 19 of the Convention on the Rights of Persons with Disabilities in Kenya’ (2013) 1 African Disability Rights Yearbook 54.
3 Mladenova (n 2) 8; E Kamundia (n 2) 54.
4 P Gooding ‘The right to independent living and being included in the community:
Lessons from the United Nations’ (2018) 24 International Journal of Mental Health and Capacity 32; Kamundia (n 2).
5 As above.
6 CRPD Committee (n 1) para 5.
7 CRPD Committee (n 1) para 1.
8 DJ Viviers ‘Mental health and the world of work: A comparative analysis of the legal frameworks governing categories of mental health conditions’ PhD thesis, University of the Free State, 2016 at 22.
9 Viviers (n 8); M Swanepoel ‘Human rights that influence the mentally ill patient in South African medical law: A discussion of sections 9; 27; 30 and 31 of the Constitution’ (2011) 14 Potchefstroom Electronic Law Journal 126.
10 See W Holness ‘The invisible employee: Reasonable accommodation of psychosocial disability in the South African workplace’ (2016) 32 South African Journal on Human Rights 510, provides that: the CRPD’s reference to ‘mental’ impairment in art 1, includes persons with psychosocial disabilities. The preferred terminology is ‘persons with psychosocial disabilities’ instead of persons with mental disability. This is in line with the social model of disability and the recognition that disability is an evolving concept (Preamble para (e) of the CRPD). Psychosocial disabilities include mood disorders (such as depression and bipolar disorder), anxiety disorders and psychotic disorders (such as schizophrenia and some forms of bipolar disorder); K Vornholt et al
‘Disability and employment – Overview and highlights’ (2018) 27 European Journal of Work and Organizational Psychology 40 at 41 defines psychosocial disabilities to include both common mental disorders, which include adjustment, mood, and anxiety disorders, and severe mental disorders such as schizophrenia or bipolar disorders;
C Harvey et al ‘People living with psychosocial disability: Rehabilitation and recovery- informed service provision within the second Australian national survey of psychosis’
(2016) 50 Australian & New Zealand Journal of Psychiatry 534 at 535 points out that the term psychosocial disability is also preferred over psychiatric disability because it emphasises the social consequences of disability, while psychiatric disability focusses on impairment.
most disadvantaged within the disability movement.11 They experience severe social challenges and continue to be subjected to human rights violations worldwide.12 Their rights to participate and contribute meaningfully in political, legal, social, clinical and personal decisions which impact their own lives have been violated.13
The experiences of discrimination, mistreatment, intolerance and exclusion of persons with psychosocial disability are disturbing.14 This has been facilitated by prejudicial and misguided beliefs that persons with psychosocial disability, unlike say physical disabilities, lack the capacity to make rational and informed decisions.15 Further, because people with psychosocial disabilities do not have access to the basic mental healthcare, support and social services that they may require, they eventually become isolated from the community.16 Accordingly, this isolation and segregation is not just experienced within the community, but even outside and touches every area of the lives of person with psychosocial disabilities, from their right to education, to the right to equal recognition before the law, and even the right to work and employment, just to name a few. For example, persons with psychosocial disabilities experience high rates of unemployment.17 Persons with psychosocial disabilities continue to experience challenges not just in accessing, but also in maintaining employment.18 This is particularly alarming because of the high prevalence of psychosocial disabilities worldwide.19 Yet, the right to work and employment not only reduces poverty, but enables people to become independent, self-sustaining, and to be able to participate equally in society.20 This is the reason that article 19 is so important.21 In fact, it was the resistance to this type of harm caused by isolation and segregation which led to the development of the right of all persons with disabilities to
11 K Wheat et al ‘Mental illness and the workplace: conceal or reveal?’ (2010) 103 Journal of the Royal Society of medicine 83.
12 SJ Hoffman, L Sritharan & A Tejpar ‘Is the UN Convention on the Rights of Persons with Disabilities impacting mental health laws and policies in high-income countries?
A case study of implementation in Canada’ (2016) 16 BMC International Health and Human Rights 2.
13 S Kleintjes, C Lund & L Swartz ‘Barriers to the participation of people with psychosocial disability in mental health policy development in South Africa:
A qualitative study of perspectives of policy makers, professionals, religious leaders and academics’ (2013) 13BMC International Health and Human Rights 1.
14 Hoffman, Sritharan & Tejpar (n 12).
15 Kleintjes, Lund & Swartz (n 13).
16 As above.
17 DR Becker et al ‘Job terminations among persons with severe mental illness participating in supported employment’ (1998) 34 Community Mental Health Journal 71 at 72.
18 ID Ebuenyi et al ‘Employability of persons with mental disability: Understanding lived experiences in Kenya’ (2019) 10 Frontiers in psychiatry 1 at 10.
19 As above.
20 Judge DL Bazelon (Centre for Mental Health Law) ‘Getting to work: Promoting employment of people with mental illness’ (September 2014) http://www.bazelon.org/
wp-content/uploads/2017/01/Getting-to-Work.pdf (accessed 21 March 2020) 3.
21 Mladenova (n 2) 8.
live in the community, with choices equal to others in article 19 of the Convention on the Rights of Persons with Disabilities (CRPD).22
Currently, there is no accurate data and information on the prevalence of psychosocial disabilities in Kenya.23 What is available is the 2019 Kenyan Census which adopted the Washington Group short set of questions on disability in order to collect data on the prevalence of disability in Kenya.24 Nonetheless, one limitation of the short set of questions is that they fail to capture psychosocial disabilities as a disability category. As a result, it is difficult to tell the specific numbers of persons with psychosocial disabilities in Kenya from the data collected. The WHO provides some incite, it provides that mental, neurological and substance use disorders are common and affect more than 25 per cent of all people at some point during their lifetime.25 Furthermore, few studies currently exist that explore the employment of persons with psychosocial disabilities in Kenya.26 It is for this reason that this paper will analyse the legal framework in Kenya that protects the right to work and employment27 and investigate its link to the right to living independently and being included in the community. It will firstly discuss the state of persons with psychosocial disabilities in Kenya. Then, it will delve into the meaning of independent living and what constitutes living in the community as provided by the CRPD, and further, look at how it applies to persons with psychosocial disabilities. Additionally, it will investigate how the right to live independently and, in the community, article 19 of the CRPD, and the right to work and employment, article 27 of the CRPD, are connected.
Lastly, it will engage in a critical review of Kenyan legislation that regulates the right to work and employment for persons with psychosocial disabilities and identify whether it is in compliance with article 27. This will be done in order to identify whether the Kenyan legal framework is in compliance with article 19. Specifically, the argument the paper makes is that in failing to adequately protect the right to work and employment for persons with psychosocial disabilities, Kenya has failed to enable persons
22 Gooding (n 4) 32.
23 Ebuenyi et al (n 18) 2.
24 Devinit.org ‘Status of disability in Kenya: Statistics from the 2019 census’ (6 May 2020) https://devinit.org/resources/status-disability-kenya-statistics-2019-census/#down loads (accessed 3 October 2020).
25 Fact Sheet: The World Health Report ‘Mental and neurological disorders’ (2001) https://www.who.int/whr/2001/media_centre/en/whr01_fact_sheet1_en.pdf ?ua=1 (accessed 3 October 2020) in The Kenya Mental Health Policy 2015-2030 (August 2015) http://publications.universalhealth2030.org/uploads/Kenya-Mental-Health- Policy.pdf (accessed 3 October 2020).
26 As above.
27 Kenya is a signatory of African Charter on Human and Peoples' Rights and as a result domesticated article 15 on the right to work and employment in the Employment Act which defines the fundamental rights of employees. See African Commission on Human and Peoples’ Rights ‘Ratification table: African Charter on Human and Peoples' Rights’ https://www.achpr.org/ratificationtable?id=49 (accessed 3 October 2020)
with psychosocial disabilities to live independently and to be included in the community as provided in article 19.