Abstract:
This thesis appraises the adequacy of the social model of disability in responding to violations of declarations of unfitness during plea and proceedings (unfitness declarations) against persons with psychosocial disabilities in Kenya’s criminal justice system. The study hypothesises that the social model of disability is inadequate to respond to violations against the right to participation of persons with psychosocial disabilities in Kenya’s criminal justice system.
The study argues that unfitness declarations violate the right of persons with psychosocial disabilities to participate in access to justice. This thesis explores the legal framework of the declarations, the effects or consequences of unfitness declarations, possible causal factors of unfitness declarations, intervention strategies, and the different ways in which they can be reformed. These themes cannot be addressed solely by the social model of disability because it leaves many gaps in the holistic understanding of disability and society. I argue that the social model of disability is limited because it does not adequately address mental disabilities.
Taking into account the limitations of the social model of disability, this thesis draws from a syncretic archive of knowledge and normative frameworks such as the Foucauldian and decolonial theories of disability. The theories are employed because they focus more on the body thus shaping the discourse on mental impairment by seeking new ways and more progressive forms of action in the realisation of disabled persons’ rights. The Foucauldian theory is a useful discourse for reforming the law on unfitness declarations in Kenya by improving the agency and visibility of persons with psychosocial disabilities. Decolonial theory serves to ensure that reforms of unfitness declarations are responsive to the legacy of colonial ideology and governance. The study also employed empirical research, to interrogate the factors that inhibit the participation of persons with psychosocial disabilities in Kenya’s criminal justice system. It found that unfitness declarations are caused by attitudinal, social, and cultural factors. Accordingly, this study recommends that legislative enactment and reform are imperative not only to promote participation in access to justice but also to remove the barriers inhibiting the legal capacity of persons with psychosocial disabilities.
