Intellectual Disability Should Not Bar Kenyan Citizens from Casting the Ballot
The right to vote is the cornerstone of any egalitarian nation, including Kenya. In fact, the ability to exercise the franchise is viewed as the ultimate act of citizenship. Yet persons with intellectual disabilities are still denied the right to vote in many democratic nations, including Kenya
As a result of this exclusion, elected officials do not fully represent the people. As a democratic state, Kenya should take pride in ensuring that minority and vulnerable groups are able to exercise franchise.
Cultural beliefs and customs heavily influence the plight of persons with intellectual disabilities in Kenya. People with such disabilities are often hidden from public view and, in some cases, neglected to the point of death. For example, in many Kenyan communities, intellectual disability is seen as a ‘burdensome affliction’ that needs to be eliminated for the survival of the communities. Among the Kisiis, persons with intellectual disabilities are referred to as nyarimbota meaning a ‘mad man’. Among the Kikuyu, they are often referred to as mũrimũ wa meciria or gitoogo, literally meaning an individual’s brain " full of smoke" and hence confused. This discrimination is rampant amongst persons with intellectual disabilities, who have historically been offensively labelled as ‘idiots’, ‘morons’, ‘feebleminded’, ‘defectives’, ‘changelings,’ and ‘mentally retarded’.
Due to their low IQ and limited adaptive skills, persons with intellectual disabilities are arguably more vulnerable compared to people with other disabilities. In many countries, including Kenya, people with intellectual disabilities are recognized as rights holders. However, they are not able to exercise these rights due to the assumption that they lack the necessary capacity. Despite this, there is no specific law in Kenya explicitly denying persons with intellectual disabilities the right to vote. In fact, the Constitution guarantees the right to vote for everyone under Article 38, and that includes persons with intellectual disabilities, thus, ensuring universal suffrage. Even though Article 38 guarantees universal suffrage, as it will demonstrate later, persons of ‘unsound mind’ cannot be registered as voters.
Despite these explicit provisions, individuals with intellectual disabilities are unable to exercise franchise. This state of affairs is attributed to the disability-based discrimination entrenched in stereotypes prevailing in Kenyan societies. These stereotypes portray all persons with disabilities including intellectual disability as being burdens, curses, and non-integral members of the society. Consequently, individuals with intellectual disabilities remain vulnerable to discrimination and inequality despite their legal recognition as persons before the law.
In 2008, Kenya signed and ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD). As per Article 2(6) of the Constitution, the CRPD is part of Kenyan domestic laws. Fundamentally, the CRPD does not confer ‘new’ rights but guarantees the protection of existing rights established under the different international human frameworks. Under the CRPD, individuals with intellectual disability are regarded as rights holders and not as objects of pity. The principles underlying the CRPD include ‘non-discrimination’, ‘full and effective participation’, and ‘equality of opportunity’. For instance, Articles 5 and 12 of the CRPD guarantee non-discrimination and equality before the law for every person with a disability. This means that people with intellectual disability are viewed as rights holders and can exercise the rights provided under Article 29 of the CRPD which sets out the framework for people with disabilities’ participation in political and public life. Importantly, Article 29(a)(iii) recognizes that certain people with disabilities may require support to exercise their right to vote under the Convention. This has been understood as supported decision-making.
“Ensuring that all citizens, including those with intellectual disabilities, can vote is essential for strengthening democracy. It promotes inclusivity and ensures that elected officials genuinely represent the rich diversity of Kenya…”
The term supported decision-making can be understood as a process of providing assistance to persons, such as those with intellectual and cognitive disabilities, to empower them to make their own decisions. This approach ensures that individuals with intellectual disabilities have the necessary support when navigating decision-making processes. Supported decision-making helps advance the idea that persons with intellectual disabilities, like everyone else, possess inherent rights, including the right to vote. Therefore, supported decision-making recognises the moral personhood of persons with intellectual disabilities and upholds their entitlement to various rights including voting rights.
In addition, supported decision-making serves to promote the legal capacity of persons with intellectual disability, as provided under Article 12 of the CRPD. The raison d’etre of Article 12 of the CRPD is to protect the dignity and integrity of persons with disabilities by ensuring that they are treated equally before the law. It ensures that they are not denied the right to make decisions that affect their lives based on their disability. Consequently, the concept of supported decision-making empowers people with intellectual disabilities to assert their rights and ensures their equality before the law.
To realise the right to vote, people with intellectual disabilities can receive support to exercise franchise from their trusted friends. This will involve individuals with intellectual disability nominating a trusted person to convey their voting decision. This enables them to overcome the assumption that they cannot exercise the right to vote.
The Constitution of Kenya under chapter seven provides for how citizens will be represented through elections. Specifically, Article 83(1)(b) provides that individuals of ‘unsound mind’ cannot be registered as voters, hence, denying them the right to vote. Unfortunately, these provisions regarding ‘unsound mind’ are frequently applied to people with intellectual disabilities based on the assumption that they do not possess the capacity. Notably, the concept of supported decision-making remains foreign in Kenyan electoral laws.
To ensure that individuals with intellectual disability can exercise their right to vote, it is necessary to amend the law. This amendment should reconcile the conflict between Article 38 and 83 (1) (b). Additionally, it should introduce the concept of supported decision-making in the exercise of voting rights. By doing so, individuals with intellectual disabilities would be recognized as political rights holders with the capacity to participate in elections. As a result, this would allow Kenya to be consistent with its international and domestic obligations. These obligations mandate countries like Kenya to ensure that everyone including the most vulnerable are treated equally before the law.
In closing, denying individuals with intellectual disabilities the right to vote effectively excludes them from society and strips them of political representation. This exclusion doesn’t just impact them as a group; it also undermines Kenyan society. Without intellectually disabled persons’ voices, political leaders can never truly reflect the diversity of the entire population. Ensuring that all citizens, including those with intellectual disabilities, can vote is essential for strengthening democracy. It promotes inclusivity and ensures that elected officials genuinely represent the rich diversity of Kenya, empowering people with intellectual disabilities to participate fully in the democratic process, standing on par with their non-disabled counterparts.
