President Kenyatta must veto legislation which will deny marriage rights to Kenyans with disabilities

“He is just like anyone else and should be allowed to make decisions just like any other person,” says the wife of Yusuf, a man with a psycho-social (mental health) disability

Today the Mental Disability Advocacy Center (MDAC) is calling on President Uhuru Kenyatta not to sign the Marriage Bill which will deny the right to marriage to any person who has “any mental disorder or mental disability whether permanent or temporary or is intoxicated or is under the influence of drugs so as not to appreciate the nature or purport of the ceremony” (clause 11(2)). MDAC is concerned that this provision will be applied indiscriminately by state officials to deny someone the right to marry, simply on the basis that they think the person has a mental health issue or intellectual disability. If someone with a disability wants to marry, then the State has no role to play in denying that person’s wish.

Credit: State House Kenya Facebook The parliament passed the bill last week. Legislators ignored the country’s obligations under international human rights law, including the right to equality and non-discrimination (Article 5), the right to legal capacity (Article 12) and the right to marriage (Article 23) guaranteed under the UN Convention on the Rights of Persons with Disabilities (CRPD) which Kenya ratified in 2008. The regressive bill also conflicts with the Kenyan constitution, which holds that people with disabilities must be “treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning” (Article 54).


Oliver Lewis, Executive Director of MDAC said:

“Entrenching discrimination and prejudice is the antithesis of progress. People labelled with a disability have the same right as anyone else to choose whether and to whom they get married. They have the same right to protection against exploitation, violence and abuse.”

The Marriage Bill has drawn significant criticism from national disability rights advocates, as well as women’s rights groups, as it would legalise polygamy without the wife’s consent. Tomorrow MDAC and its Kenyan NGO partners including Users and Survivors of Psychiatry Kenya (USPK) and the Kenyan Association for the Intellectually Handicapped (KAIH) will gather in Nairobi to launch a major report on the right to legal capacity for people with mental disabilities. Based on three years of research, the findings show that Kenyans with mental disabilities are frequently denied the opportunity to make basic decisions in their lives due to entrenched social stigma, including superstitious beliefs about madness.

The government should be taking “effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others” (Article 23, CRPD). If the president signs the bill stripping people of their right to form relationships, he will not be eliminating discrimination, but promoting it.

The Bill sets out how a marriage is voidable if “at the time of marriage and without the knowledge of the petitioner, the other party suffers a recurrent bout of insanity” (clause 73(1)(g)), a term which is not defined and places a duty on people with mental health issues to disclose these to potential spouses. Such regressive measures represent a gross interference in the private and family lives of people with mental disabilities, placing an obligation upon them which would be unthinkable for people with any other health issue.

MDAC’s report “The Right to Legal Capacity in Kenya” will be published online later today and will be launched at a roundtable event at the Intercontinental Hotel, Nairobi tomorrow (Wednesday 2 April) at 8.30am. For further information please contact Eyong Mbuen, Legal Officer: mdac@mdac.orgFollow #LegCapKenya for live Twitter updates today and tomorrow.

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