The approach of the Kenyan criminal justice system to the detention of persons declared not criminally responsible on account of mental disability

Abstract

This mini-dissertation appraises how best Kenya’s criminal justice system should deal with persons with mental disabilities (PwMD) who have committed offences. Specifically, it seeks to establish how the rights of PwMD who have committed offences can be best protected during and after the criminal process. It draws from Canadian law of criminal procedure related to PwMDs who have committed offences. The mini-dissertation concludes that certain provisions of Kenya’s Criminal Procedure Code violate the rights of PwMDs who are found not criminally responsible by reason of mental disability (NCRMD) under both the Kenyan Constitution and the UN Convention on the Rights of Persons with Disabilities (CRPD), to which Kenya is a state party. The bases of these violations are the indefinite nature of the detention of NCRMD-PwMDs, not allowing for periodic review, and the disregard for any alternative forms of accommodation, which result in the infringement of NCRMD-PwMDs’ rights to dignity, liberty, freedom from inhuman and degrading treatment and independent living. This mini-dissertation also makes recommendations for legal reform in Kenya, drawing from Canadian law and the CRPD. The recommendations include the amendment of the current legislation to replace derogatory phrases, amendment of the law to reflect a true acquittal of NCRMD-PwMDs in the criminal justice system, removal of the Executive’s control of NCRMD-PwMDs in Kenya’s criminal justice system, improvements to mental health conditions in psychiatric institutions and prison facilities, periodic re-evaluation, and the introduction of alternatives to detention as appropriate forms of accommodation.