To what extent is global and regional jurisprudence on the right to health for persons with disabilities reflected in Kenyan courts?

Abstract

The integration of international jurisprudence into the interpretation of the right to health of persons with disabilities by domestic courts is an important way of enhancing protection of the right at the national level. However, it is not always that decisions of international human rights bodies will find their way into domestic courts. This article maps the extent of engagement of Kenyan courts with international and regional jurisprudence on the right to health of persons with disabilities. It analyses the approach taken by Kenyan courts to determine whether it aligns with the principles espoused in the cases decided at the international and regional level. The article singles out two communications or cases that were decided by the Committee on the Rights of Persons with Disabilities and one case that was decided by the African Commission on Human and Peoples’ Rights and assesses the extent to which Kenyan courts have given effect to its obligations under the Convention on the Rights of Persons with Disabilities. The paper concludes that global and regional jurisprudence on the right to health for persons with disabilities is rarely used by Kenyan courts to interpret persons with disabilities’ rights. The paper recommends that Kenyan courts should entertain and apply a broad range of international and regional jurisprudence when interpreting the normative content of the right to health of persons with disabilities and corresponding state obligations.