Seeking sex for the mentally ill

The Kenya National Commission on Human Rights (KNCHR) wants amendments to several legislations which they say are in contravention of the rights of persons living with disability in the country.

Among the changes they want the National Assembly to effect is on the Marriage Act and the Penal Code that presumes that any person with a mental health condition cannot consent to sex.

They also want the Law of Succession that limits the rights to inheritance, the Mental Health Act and the Criminal Procedure Code that allows courts to sentence such persons at the president’s pleasure quashed.

Speaking during the launch of the legal gaps for persons with disability KNHCR deputy CEO Shatikha Chivusia noted that the legislation are against the provisions of article 12 that calls for a distinction between mental and legal capacities of the disabled persons.

“All the violations we have highlighted are against the provisions of article 12 as they are based on a medical model that does not differentiate mental and legal capacities,”

Commissioner Chivusa said. She clarified that whereas mental challenged persons failed to have decision making capacity, they had the right to legal standing as guaranteed under article 27 of the new constitution.

The article provides for equal protection and benefits which the commission says are continuously grossly violated including the right to vote, access a bank account, access medical facilities and tap from the insurance policies. “The law guarantees recognized legalcapacity whether one is mentally ill or not,” added Chivusa.

According to KNHCR, many institutions in the country only rely on court interpretations to make decisions which to a large extent continues to devour the rights of the disadvantaged.

“The justice, health, financial and county government rely on court interpretations and informal guardianship mechanisms to determine the legal capacity for persons with disabilities,” she added.

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