4 Kenyan national legal framework
4.3 The Employment Act
employment.176 As a result, of lack of clarity on the necessity of support services, in section 32 and 33 above, the amount set aside in the disability fund for persons with disability in Kenya is very little. The amount is about 19 dollars (Ksh 2000) and is only given every two months.177 Further, the requirement that the fund ‘targets adults and children with severe disabilities, who require full time support of a caregiver’,178 seems to imply that the fund is only for persons with disability who are not in a position to work. Indeed, there is no funding that specifically provides support services to support employment of persons with disability. In addition, the job placement platform,179 where persons with disability are required to register, does not provide adequate information or data on the number of persons with disability who have been assisted to access and maintain employment or which specific employment services it provides.180
Lastly, going through the Act, it seems to focus heavily on person with physical disabilities. Example, section 21 which deals with accessibility and mobility only focuses on needs of persons with physical disabilities.
However, the Act is currently under review,181 and clearly it is necessary in order to take into account the provisions of the CRPD.
terms and conditions of employment, termination of employment or other matters arising out of the employment, which is in compliance with article 27.186 Thus, the scope of protection extends to employees and prospective employees.187 Nonetheless, here again, the Act does not define direct or indirect discrimination, and also fails to acknowledge denial of reasonable accommodation and harassment as a form of discrimination as is provided under the CRPD.188
Additionally, the Act goes on to provide that employers should pay all their employees equal remuneration for work of equal value.189 Moreover, the Act makes the dismissal unfair if the termination or discipline of an employee is based on disability.190 These two provisions are in compliance with article 27 of the CRPD. Nevertheless, here again the Act does not provide for employment support services.
As has already been highlighted, available data suggests that the current rate of employment for persons with disabilities in general, is low.191 Further, as has also been emphasised, support services are a necessary precondition for employee’s with psychosocial conditions to access and maintain employment.192 The review of the law above exposes its failure to adequately provide for employment support services not just for persons with psychosocial conditions specifically, but for persons with disability in general. Therefore, if persons with psychosocial conditions are denied employment support services and as a result are unable to access and maintain employment, their right to work and employment will be infringed, and in turn their right to live independently and in the community.193
5 Conclusion
The analysis of the Kenyan legal framework highlights the fact that although Kenyan law still has a long way to go in order to adequately protect the right to work and employment for persons with psychosocial disabilities, it has made great strides. It is important to acknowledge, that the laws have attempted to capture the spirit of article 27 of the CRPD in many instances, for example by including disability as a ground for discrimination in the Constitution for the first time in Kenya and other relevant legislation; providing for labour and trade union rights;
186 Sec 5(3)(b).
187 Kenya Human Rights Commission (n 181) 8-11.
188 CRPD art 2.
189 Sec 5(5).
190 46(g).
191 Kenyan National Human Rights Commission (n 41); UN Committee on the Rights of Persons with Disabilities (n 42).
192 Council of Europe Commissioner for Human Rights (n 34) 18; Jagannathan et al (n 132)1; CRPD Committee (n 1) para 19(b); Mladenova (n 2) 9.
193 Kamundia (n 2) 68; Judge Bazelon (n 20 above)
prohibiting slavery and servitude and forced labour; providing for protection against discrimination in all areas of employment; and providing for positive measures and incentives for employers in order to motivate the employment of persons with disability. Nevertheless, the Constitution and all the laws reviewed above still adopt a medical model when it comes to defining disability which goes against the spirit of the CRPD. Further, a review of the law has highlighted a lacuna in the provision of supported employment, yet as highlighted above support services are a key precondition for persons with psychosocial conditions when it comes to access and maintenance of employment.194 Therefore, there is a need to amend the law to include provisions of supported employment. Without employment supports services, persons with psychosocial disabilities may still find themselves isolated and excluded from the workplace and further in the community. In conclusion, as the Kenyan legal framework currently stands, it has failed to adequately enable persons with psychosocial disabilities to live independently and in the community.
194 Council of Europe Commissioner for Human Rights (n 34) 18; Jagannathan et al (n 132) 1; Modini et al (n 111)14; Engelbrecht et al (n 133) 11; Ebuenyi et al (18) 2.
124
Mwiza Jo Nkhata
*
Summary
This paper interrogates the right of access to justice for persons with disabilities in Malawi. It begins by noting that, from a normative perspective, significant progress has been made in terms of securing the rights of persons with disabilities. This progress is reflected in Malawi’s ratification of the Convention on the Rights of Persons with Disabilities (CRPD) and the adoption of the Disability Act. The paper acknowledges that access to justice is a fundamental right for persons with disabilities since it can facilitate their enjoyment of other rights. After presenting the legal, institutional and policy framework that deals with persons with disabilities, the paper examines selected provisions in Malawi’s criminal procedure law and assesses their compatibility with the principles underlying the CRPD and the Disability Act. Amongst other things, the paper establishes that, the language employed by the criminal law is demeaning of persons with disabilities and that the procedures guiding criminal trials do not possess inbuilt avenues for facilitating reasonable accommodation. The paper recommends that an audit of all statutes in the criminal justice system be undertaken in order to inform legislative reforms or initiatives of reasonable accommodation. The paper also advocates for continuous disability-rights training for all actors in the criminal justice system and the domestication of the CRPD together with the ratification of its Optional Protocol.
6
C HAPTER
A
CCESS TOJUSTICE FOR PERSONS WITH DISABILITIESINM
ALAWI: E
XPLORINGCHALLENGES ANDPOSSIBILITIESIN THECRIMINAL JUSTICE SYSTEM* Extra-Ordinary Professor, Free State Centre for Human Rights, University of the Free State, South Africa. The interpretations and conclusions in this article are entirely those of the author. They do not necessarily represent the views or positions of the African Court on Human and Peoples’ Rights or even the African Union at large.
MJ Nkhata ‘Access to justice for persons with disabilities in Malawi: Exploring challenges and possibilities in the criminal justice system’ (2020) 8 African Disability Rights Yearbook 124-149
http://doi.org/10.29053/2413-7138/2020/v8a6
1 Background
The predicament of persons with disabilities in Malawi remains dire.
According to the Government of Malawi:1
Persons with disabilities … face numerous challenges that result in their exclusion from the mainstream of society, making it difficult for them to access their fundamental social, political and economic rights. Many make their way through life impoverished, abandoned, uneducated, malnourished, discriminated against, neglected and vulnerable. For them, life is a daily struggle to survive. Whether they live in urban centres or in rural areas, they share these common problems.
Like in many other countries, there is a close relationship between poverty and disability in Malawi.2 Generally, poverty can cause disability and disability exacerbates the effects of poverty. Persons with disabilities and their families, therefore, tend to experience deeper levels of poverty than the population at large.3 In a country like Malawi, where the government has conceded that poverty is deep and severe, this has profound implications for the enjoyment of human rights by persons with disabilities. Deep levels of poverty in turn entail inconsistent progress in the implementation of pro-disability rights interventions.4
The above notwithstanding, the legal landscape for persons with disabilities in Malawi has experienced significant changes over the past ten years. Two developments stand out. First, on 27 August 2009 Malawi ratified the Convention on the Rights of Persons with Disabilities (CPRD).5 Second, in 2012, Malawi passed the Disability Act after over eight years of procrastination.6 These developments remain pivotal in the realisation of the rights of persons with disabilities.7 The monumentality of
1 Government of Malawi National policy on equalisation of opportunities for persons with disabilities (2006) 8.
2 Government of Malawi (n 1) 13.
3 Open Society Initiative for Southern Africa Status of disability rights in Southern Africa (2012) 12; J Nyanda ‘Confronting the double marginalisation of girls with disabilities:
Practical challenges for the realisation of the right to education for girls with disabilities under the Disability Act of Malawi’ (2015) 3 African Disability Rights Yearbook 112.
4 R Lang Disability policy audit in Namibia, Swaziland, Malawi and Mozambique: Final report (2008) 91.
5 UN Treaty Collection, CRPD https://treaties.un.org/Pages/ViewDetails.aspx?src=
IND&mtdsg_no=IV-15&chapter=4&lang=en (accessed 16 August 2017). Malawi has neither signed nor acceded to the Optional Protocol to the CRPD.
6 E Chilemba ‘Promoting disability rights in Malawi’ http://www.osisa.org/law/blog/
promoting-disability-rights-malawi (accessed 16 August 2017).
7 Disability terminology is often highly contested. Some of the commonly used terms are: ‘people with disabilities’; ‘disabled people’; ‘people with impairments’; and more specific terms like ‘visually impaired people’; and ‘people with intellectual disabilities’.
The varying terms, however, are often reflective of the differing perspectives about disability – E Iriarte et al ‘Disability and human rights: Global perspectives’ in E Iriarte, R McConkey & R Gilligan (eds) Disability and human rights: Global perspectives (2016) 8.
these developments, notwithstanding, their practical impact is, largely, yet to be seen.
From an international perspective, the CRPD remains the primary instrument in so far as rights of persons with disabilities are concerned. In articles 12 and 13, the CPRD provides for a mutually reinforcing web of rights that are meant to guarantee equal recognition before the law and access to justice for persons with disabilities. The underlying theme in the two articles is that persons with disabilities should enjoy legal capacity on an equal basis with others in all aspects of life and also that they should have effective access to justice. In order for persons with disabilities to enjoy the right to effective access to justice, states are required to provide procedural and age-appropriate accommodations that can facilitate their effective participation in the justice system. From a standard setting perspective, it is also important to acknowledge the adoption by the African Union of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities. This Protocol, however, is not in force yet.8
In respect of the domestic perspective, Malawian law is not oblivious to persons with disabilities. For example, the Constitution of the Republic of Malawi (the Constitution) expressly lists disability as one of the grounds on which discrimination is prohibited.9 Further, in section 13(g), the Constitution enjoins the state to take progressive steps to enhance the dignity and quality of life of persons with disabilities. Additionally, the Disability Act includes wide-ranging protections for persons with disabilities and is, arguably, an avenue through which the protections in the CRPD and the Constitution find detailed legislative expression.
Specifically, in relation to the criminal justice system, although some significant reforms have been made to the Criminal Procedure and Evidence Code
a lot of measures still need to be in place to ensure that persons with disabilities have the support they need to ensure they can effectively access justice at all stages of the legal process.10
8 This Protocol was adopted on 29 January 2018. To date it has garnered six signatures, but zero ratifications – https://au.int/sites/default/files/treaties/36440-sl-PROTO COL%20TO%20THE%20AFRICAN%20CHARTER%20ON%20HUMAN%20AND
%20PEOPLES’%20RIGHTS%20ON%20THE%20RIGHTS%20OF%20PERSONS%
20WITH%20DISABILITIES%20IN%20AFRICA%20%281%29.pdf (accessed 10 April 2020).
9 Sec 20(1), Constitution of the Republic of Malawi.
10 Government of the Republic of Malawi ‘Combined initial and second report to the Committee on the Rights of Persons with Disabilities’ http://disabilityrightsfund.org/
resources/malawi-state-report-crpd/ (accessed 4 March 2020) para 79.
Flynn and Lawson have noted that while access to justice, as a topic of study, has received considerable attention, its disability-related dimensions have attracted little attention.11 Access to justice, however, is a fundamental human right of significant concern to persons with disabilities.12 Persons with disabilities, whether as victims of crime, accused persons, or even as witnesses are always at risk of having their rights undermined in the justice system.13
Perhaps as a manifestation of global trends, there have been very few studies in Malawi that are disability specific, for example, by interrogating the government’s implementation of disability policies.14 Although some studies have been undertaken covering rights of persons with disabilities, no study to date has specifically interrogated access to justice for persons with disabilities in Malawi from the perspective of the criminal justice system.15 It should also be noted that Malawi’s Disability Act does not include a specific guarantee on access to justice for persons with disabilities. This, however, must not be read to imply that persons with disabilities do not have the right to access justice in Malawi. This is because the Constitution guarantees ‘every person’ the right to access justice and legal remedies.16 Additionally, the interdependence, indivisibility and interrelatedness of human rights entail that other human rights recognised in the Disability Act can be used to facilitate access to justice for persons with disabilities. Nevertheless, the absence of an explicit provision on access to justice, in a law specifically meant to deal with rights of persons with disabilities, is an odd occurrence.
This paper interrogates the right of access to justice by persons with disabilities within the criminal justice system in Malawi. Specifically, the
11 E Flynn & A Lawson ‘Disability and access to justice in the European Union:
Implications of the United Nations Convention on the Rights of Persons with Disabilities’ (2013) 4 European Yearbook of Disability Law 7 at 7-8.
12 S Ortoleva ‘Inaccessible justice: Human rights, persons with disabilities, and the legal system’ (2011) 17 ILSA Journal of International and Comparative Law 287.
13 Australian Human Rights Commission ‘Equal before the law: Towards disability justice strategies’ http://www.humanrights.gov.au/our-work/disability-rights/publications/
equal-law (accessed 24 August 2017).
14 Government of Malawi (n 10) para 7. The 2008 national census was the first time in Malawi’s history that questions relating to disability were included, see, National Statistical Office ‘2008 population and housing census’ http://www.nsomalawi.mw/
index.php?option=com_content&view=article&id=106&Itemid=6 (accessed 23 Aug- ust 2017). The 2018 national census also included a disability component, see, http://
www.nsomalawi.mw/index.php%3Foption%3Dcom_content%26view%3Darticle%26 id%3D226:2018-malawi-population-and-housing-census%26catid%E2%80%89%3D%
E2%80%898:reports%26Itemid%E2%80%89%3D%E2%80%896 (accessed 29 Febru- ary 2020).
15 See, for example, A Munthali A situation analysis of persons with disabilities in Malawi (2011) 7. As for a study on access to justice for persons with disabilities, but specific to children with disabilities and in relation to the crime of defilement, see B Malunga, NR Kanyongolo & N Mbano-Mweso ‘Access to justice of children with disabilities in defilement cases in Malawi’ (2017) 5 African Disability Rights Yearbook 25’ http://
www.adry.up.ac.za/index.php/section-a-articles-2017/bernadette-malunga-ngeyi-ruth- kanyongolo-ngcimezile-mbano-mweso (accessed 6 March 2020).
16 Sec 41, Constitution of the Republic of Malawi.
paper analyses the procedural and substantive guarantees contained, primarily, but not exclusively, in the Criminal Procedure and Evidence Code (CPEC)17 and the Penal Code18 to determine how these contribute to either enhancing or inhibiting the right of access to justice by persons with disabilities. This is achieved by isolating provisions from both the CPEC, the PC, and other applicable laws, and analysing them as against the guarantees in the CRPD, the Disability Act and the Constitution.
Subsequent to the analysis, the paper makes recommendations for improving Malawi’s criminal justice system in terms of compliance with the rights of persons with disabilities.
The first part of the paper contextualises the discussion by providing a general background to the situation of persons with disabilities in Malawi and some of the applicable legal standards both internationally and domestically. The second part provides an overview of the legal, policy and institutional framework that applies to persons with disabilities in Malawi. The third part explores the right of access to justice in so far as it applies to persons with disabilities and unpacks its key elements. The fourth part explores the right of access to justice for persons with disabilities within the context of Malawi’s criminal justice system. The challenges and possible opportunities for persons with disabilities in Malawi’s criminal justice system are also discussed in this part of the paper. The penultimate section of the paper makes some proposals for improving access to justice for persons with disabilities in Malawi. The last part of the paper is the conclusion.