LEGISLATIVE FRAMEWORK IN KENYA ON THE RIGHTS OF CHILDREN WITH DISABILITIES INTERNATIONAL LAWS
Under The Constitution of Kenya, article 2(5) and (6), treaties and rules of international law are part of Kenyan Law. This essentially means that even without domesticating some of the treaties their obligations apply directly to Kenya. The Convention on the Rights of the Child is the first treaty that protected children rights. It guiding principles have a direct impact to children with disabilities. These include; non-discrimination, that these children should not be discriminated on the ground of disability, best interests of the child; under this rubric states must eradicate policy laws which do not place the best interests of the child as paramount, A child’s survival and development; that laws set must aim at ensuring development and survival of the child, and finally, Child participation, i.e. that children with disabilities or organizations representing them be consulted in matters and decisions affecting them. Article 23 of the Convention lays emphasis on the right of these children to special care and support to ensure they live full and independent lives. Most importantly the article guarantees the disabled children all the rights in the Convention. The International Covenant on Economic, Social and Cultural Rights (ICESCR) through General Comment 5 states that persons with disabilities should be guaranteed all rights under the covenant. On education, the convention provides the right to basic education as an unequivocal right and therefore should be free and compulsory. Through General Comment 13, certain standards with respect to the right of the disabled child to education are set. These include: Adaptability; that education meets emerging societal needs and those of learners of diverse social and cultural backgrounds, availability; i.e. that educational institutions be available to all children with disabilities, Acceptability; that the curricula be relevant, culturally appropriate and of good quality. With reference to disabled children, the curricula should include sign language, Accessibility; this covers economic accessibility, physical accessibility and non-discrimination of the children with disabilities. Article 1 and 2 of The Universal Declaration of Human Rights read together with Article 26 protects children with disabilities imperatively. Discrimination is prohibited whereas the right to education is emphasized as unequivocal right. Though this has no legally binding obligations, the Declaration has acquired public notoriety with ongoing debates on whether it has acquired customary international law status. Kenya has also ratified the Convention on the Rights of People with Disabilities. Article 7 of the Convention focuses on children with disabilities. The article provides that they should enjoy all human rights and fundamental freedoms on equal basis with other children. Further the children should be guaranteed freedom of expression on matters affecting them. The most paramount principle under this article is the best interests of the child. The African Charter on the Rights and Welfare of the Child expressly recognizes under Article 13 the need to ensure there is special help for children with disabilities and effective training so as to prepare them adequately for future employment.
The Supreme law of the land, i.e. the Constitution 2010 expressly prohibits discrimination on the grounds of disability and age therefore comprehensively covering children with disabilities. Further Article 53 focuses on the rights of the child with no specific reference given to the disabled child. It is therefore presumed that the term “every child” includes the disabled child. They are accordingly guaranteed the rights to name and nationality from birth, free and compulsory education, basic nutrition, shelter and health care, parental care and responsibility, protection from all forms of...
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